Volume 2 — Foster's Pennsylvania Reports (Pittsburgh, 1870–1875)

<p>A title which calls the bill a supplement to another bill, which has no other title than of the same kind, a supplement to an original bill, does not clearly express the object of the law, and imparts no information to the legislature which is called upon to enact it.</p> <p>The act of January 2, 1871, entitled “a further supplement to the act incorporating the city of Harrisburg, in the county of Dauphin, passed April 9, 1869,” is defective in title, contains several distinct subjects and is unconstitutional and void.</p>

<p>An injunction will not be continued against a corporation merely because a dispute has arisen as to the election of directors who have not yet even taken their seats.</p>

<p>After twenty years it is the presumption that an administrator’s account is duly-settled, and the burden of proof is on the complainant to overthrow this presumption.</p>

<p>Petition for partition of real estate.</p>

<p>Execution was issued upon a joint judgment against several co-defendants, one of -whom was in the service of the United States as a soldier, at the time. Upon application the court stayed the writ as to the soldier and a sale of the other defendants’ interest was had, and the deed acknowledged. Held.</p> <p>1. That the purchaser look a valid title.</p> <p>2. That the co-defendants, whose interests were sold, were not within the provisions of the act of 18th April, 1861, which exempted soldiers from civil process, and they can take no benefit or advantage from the provision. -</p> <p>3. If an execution was forbidden and void as against one defendant it does not follow that it was illegally issued against a co-defendant. Cadmus v. Jackson, 2 P. F. S., 295, distinguished.</p> <p>4. The principle that, “process forbidden by law is void, and a sale under it conveys no title,” has no application in this case.</p> <p>A writ of execution although irregular and erroneous is not necessarily a nullity. The validity of the judgment upon which such executions issued, cannot be questioned in a collateral action, or other manner than by suing out a writ of error or by direct application to the court in which it is entered or from which execution issued, to vacate or set it aside.</p>

<p>Appeal from the court of Common Pleas of Lancaster county.</p>

<p>r. There is nothing in the statute authorizing a justice of the peace to enter judgment by default against the defendant upon the mere statement of the amount and the examination of it. If the plaintiff does not appear before the justice in person, hé must be represented by an agent or by witnesses.</p> <p>2. M’Cowan v. Ward, x Luz. Leg. Observer, 196, affirmed.</p>

Exceptions to master’s report distributing fund raised upon a sale of the property of the corporation defendant under the foreclosure of a second mortgage. The Southern Pennsylvania Iron and Railroad Com-pariy, having purchased certain bonds from Daniel V. Ahl, prior thereon, •$50,000 in-cash, and $50,000 in 1st mortgage bonds, and further agreed to give him 80 of 200 2d mortgage bonds for $1,000 each, to be there•after made and executed..

<p>Persons liable to do military duty under the act of May 4, 1864, were subject to the per capita tax authorized by the act of February 17, 1865.</p>

<p>1. Where the testimony produced in the depositions taken in a proceeding to dissolve a foreign attachment, appears to establish the fact that the defendant was a resident of this commonwealth at the time the attachment issued, the attachment will be dissolved.</p> <p>2. No order for the allowance of a counsel fee and costs to a garnishee will be made, where theJrecord shows no appearance of counsel, no interrogatories filed, nor answers prepared on the part of the garnishee.</p>

<p>1. In construing the constitution, a comprehensive view of the whole instrument must be taken. Every part of it must be considered and all its parts made to harmonize if practicable.</p> <p>2. The ninth section of the judiciary article of the new constitution, construed in connection with the fifth section of the same article, and the sixteenth and twenty-sixth sections of the schedule, does not presently constitute the judges learned in the law sole judges of the courts of oyer and terminer, quarter sessions and orphans’ courts.</p> <p>3. Associate judges in commission on the first day of January, 1874, continue to hold their respective offices, and it is their right and duty to serve in all the courts as Jieretofore, until the expiration of the terms for which they were elected and commissioned.</p>

<p>Buie to show cause why Sami. H. Orwig- should not be stricken from the roll of attorneys.</p>

<p>1. School districts arc entitled, under the act of 8 May, 1854, to the full amount of all taxes collected on unseated lands, returned by the collectors of the school tax to the commissioners of the county. No deduction can be made on account of commission to the County Treasurer.</p> <p>2. Settlements of treasurer’s accounts by the county auditors allowing a special or other commission out of moneys collected for a school district are not binding upon the district; School districts and other creditors of a county, are not parties to such sett.e-ments, and therefore are not affected by them.</p> <p>3. Where a debt against a county for money had and received is presently payable on demand, and the party entitled to receive the money neglects for more than six years to make demand, and there was no reason for the'delay, the statute of limitations is a bar to the recovery of such a debt.</p>

<p>Proceedings in an action before a justice of the peace will be set aside when it appears there had been a continuance without day, and afterwards the justice proceeded to hear and pass judgment in the cause without notice to the defendant.</p>

<p>Motion for a preliminary injunction.</p>

Rule granted to show cause why the appeal should not be stricken off. • Rule to show cause why plaintiff should not be permitted to perfect his recognizance by adding another surety.

<p>1. A judge may, where (.he evidence is uncontradicted, tell the jury, that it is their duly to convict.</p> <p>2. Commonwealth v. Keenan, 30 Legal Intelligencer, 417, followed.</p>

<p>1. Couiity auditors are clothed with extensive powers, to enable them to correctly audit, adjust, and settle the accounts of the several officers subject to their supervision.</p> <p>2. When the report of the county auditors has beánfiledmtheproperoffice,it is final and conclusive, and the auditors have no further power over it.</p> <p>3. Appeal from the account of the auditors as filed, is the only way in which the action of the court can be invoked.</p>

<p>A certiorari must be applied for within a reasonable.time. Laches of the defendant will 'deprive him of the benefit of any exception to the proceedings had before a justice of the peace.</p>

Rule to show cause why the award should not be reformed so as to conform to the amount laid in the narr and the actual claim of plaintiff.

<p>M. sold and conveyed certain premises, then under lease to G. and S., to T., and ■-subsequently for the purpose of delivering possession (as shown by the record), gave notice to the tenants to quit. Held, that the les&or had not parted with her entire interest by such sale, but íetained possession, which was sufficient interest to entitle her to give ;£he necessary notice to quit.</p>

<p>Motion to continue special injunction.</p>

<p>Rule to show cause why judgment shall not be stricken off, on the ground that tho defendant was a minor when he gave the note.</p>

<p>The draft required to be filed upon presentation of petition, asking for the appointment of viewers to assess damages occasioned by the running of a railroad, is within the •costs and expenses to be paid by the l'ailroad company, especially when the filing of the same is requested by the company.</p>

<p>1. The jurisdiction of the common pleas of actions of trover and trespass is not taken away, qualified or restricted by the act of 1814, which gives to justices of the peace jurisdiction of such artions</p> <p>2. The act of 1814, giving to justices of the peace jurisdiction of trover and trespass, contains no restriction like the 26th section of the justices’ act of 1810, imposing costs on. a plaintiff who sues in the common pleas on a demand for less than $100. It is not required in actions of trover or trespass in the common pleas that the plaintiff, in order to recover costs, file an affidavit that his demand or claim exceeds $100.</p> <p>3. Plaintiff in such actions brought in the common pleas, even though he recover less than $100, is entitled to have judgment entered with costs.</p>

<p>Error to District Court of Philadelphia.</p>

<p>Error to the District Court of Philadelphia.</p>

<p>The new constitution does not affect the taking of land under a special act passed before its adoption.</p>

<p>A motion to dissolve an injunction will not be entertained until an answer be filed.</p>

<p>Exceptions to the confirmation of the sheriff’s inquisition.</p>

<p>Error to the District Court of Philadelphia city and county.</p>

<p>Exceptions to Master’s Report.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia.</p>

<p>Error to the District Court of Philadelphia.</p>

<p>Error to th9 District Court of Philadelphia.</p>

<p>Error to the Court of Common Pleas of .Schuylkill Co.</p>

<p>Error to the District Court of Philadelphia.</p>

<p>If a vendee fails to pay the amount due and surrenders 'back the possession of the property, he cannot be compelled to satisfy a judgment which was to have been a part payment for the property.</p>

<p>Appeal from the decree of the District Court of Allegheny county.</p>

<p>The act of April 14, 1851, authorizing judgments to be taken in certain cases where no affidavit of defence is filed, in Schuylkill county, is not annulled or repealed by section 26 of article V. of the new Constitution.</p> <p>Where it was intended by the Constitution to annul or abrogate any existing law, the intention is expressed in unambiguous language.</p>

Suit was brought by Stidfole against Cake as endorser of a note, and an affidavit of defense was filed, as follows : “Henry L. Cake, the defendant • above named, having been sworn according to law, doth depose and say, that he has legal defence to the whole of plaintiff’s claim in above suit, the nature and character of which isas follows, to wit: That deponent wasan endorser on said note upon which this suit is founded; that when the same became due and payable this…

<p>A. was surety on a lease renewable from year to year, and having given six month’s notice that he would-not continue surety after the end of the current year. Held, that he having died in the meantime, his estate was not liable for any rent in arrear after that date.</p>

<p>Parol testimony is admissible to establish the existence of a waiver of condemnation, which had been a record and become lost.</p>

<p>In re the Appeal of the Pennsylvania Company for the Insurance of Lives, &c., trustees, in the matter of an increased allowance to Annie D. "Washington, a minor.</p> <p>Certificate to Orphans’ Court of Philadelphia.</p>

<p>Error to District Court of Philadelphia.</p>

<p>Rule for a New Trial.</p>

<p>The act of 1869 disqualifies a party as a witness when the other party is dead, although he would not have been disqualified prior to that act.</p> <p>Briggs, J., and Thayer, J., concurring; .Hare, P. J., and Mitchell, J., dissenting.</p>

<p>Error to Common Pleas of Lehigh county.</p>

<p>Error to the District Court of Philadelphia.</p> <p>The case below was an action brought by William B. Elliott, plaintiff in error, against the city of Philadelphia, defendant in error, for the re-/ eovery of the value of a horse, the property of the plaintiff in error.</p> <p>The circumstances were these :</p> <p>The servant of the plaintiff in error, in February, 1869, was driving the latter’s horse along Broad street, in the city of Philadelphia, when he was arrested by certain police officers of the city for alleged furious and reckless driving, and taken before an alderman for the purpose of hearing the case. The horse and wagon were at the same time taken by the police officers to the office of the alderman, and while the case was being heard, the horse, which had been left in charge of a boy by the police officers, ran away, jumping into the Delaware river at Shackamaxon street wharf, and was drowned.</p> <p>The demurrer to the plaintiff’s declaration alleging “no cause of action,” was sustained by the court below. The opinion, which was delivered by his honor, Judge Thayer, is reported in 7 Philada. R. 128.</p> <p>Plaintiff in error thereupon sued out this writ of error, and the case was argued in January Term, 1873, and the judgment of the court below sustained by an equally divided court.</p> <p>The case was re-argued in January Term, and the following was the opinion of the court.</p>

<p>Where the intent is clettr, a devise to an institution under a wrong or abbreviated trame is good.</p>

<p>An order of removal of a pauper not appealed from, is final and conclusive as to tire settlement of the pauper.</p> <p>The phrase, “no interest or policy of law,” in the act of 1869, held, to mean that which, before the passage of that act excluded parties from testifying in their own suits, or where they had any interest in the subject matter in controversy.</p>

<p>.Error to the District Court of Philadelphia.</p>

<p>In re petition of Addison G-. Mason for writ of habeas corpus.</p> <p>Error to the Common Pleas of Luzerne county.</p>

<p>Plaintiff, who inherited certain real estate, in 1837, from her father, married before 1848, and in 1852, under the proviso of the 48th section of the act of 29th March, 1832, made a declaration authorizing her share of the real estate, which had been partitioned in 1851, to be paid to her husband without security; the husband died in 1871, ■and plaintiff sued his estate to recover the amount paid him under said declaration. Held,</p> <p>1. That the husband was not a trustee, and the payment of her share in partition was absolute.</p> <p>2. The married woman’s act (11 April, 1848) did not impair the veited interest of the husband, although partition did not lake place until 1851.</p> <p>3. Where the wife acquires the estate after the nth April, 1848, the act of the 29th March, 1832, section 48, is inoperative.</p>

<p>A verdict of a jury wili not be set aside for the misconduct of a juror in conversing-about the cause on trial with a witness before or during the trial, when no improper influence or bias is shown, unless such misconduct was caused by a party to the suit, or his agent, or by his representations, and proof of the bias must be clear andimanifest.</p> <p>The general rule in Pennsylvania is that all papers given in evidence in the trial of the cause, except depositions are to be sent out with the jury.</p> <p>A certified record of bankruptcy offered in evidence during the trial, through which the plaintiff claims the land, may be sent out with the jury, even though there are depositions attached to the proceedings relative to the bankruptcy, but immaterial to the controversy. Such depositions stand on a different footing from ordinary depositions, for the record cannot be cut up and mutilated.</p> <p>It is the duty of counsel to object to papers before they are admitted to the jury-room.</p>

<p>1. A rule to arbitrate, on which arbitrators have been chosen, cannot be stricken. off until the day of meeting has gone by. It is error to strike off on the day of meeting.</p> <p>2. The practice and authorities relative to arbitration rules examined.</p>

<p>I. A feme covert may become a party to a parol partition of lands, held by her ■with others as tenants in common.</p> <p>■2. Such a partition, executed by marking the lines of division upon the ground, followed by a corresponding possession in pursuance of the agreement, is good, notwithstanding the statute of frauds.</p> <p>3. Partition neither enlarges nor diminishes the estate of each tenant in common. It is less than a grant. The act of 24 February, 1770, which establishes the only way by which husband and wife may convey the estate of the wife, does not apply to partition.</p>

<p>An action of trespass may be maintained,' if a corporation takes land for public use «before entering a bond for compensation.</p>

<p>A clause in testatrix’s will empowered the executrix to sell the real estate, “if in her opinion she should think it best,” and directed the balance of the purchase money, after' the payment of a certain debt, to be put out at interest, well secured. It further provided for a certain distribution of the balance of the estate at the death of the two daughters, E. and A., and appointed the daughter E., executrix.</p> <p>E. died without having sold the real estate, and A. became administratrix c. t. a., and petitioned the court for an order to sell the real estate, which petition set forth no other ground than that the petitioner thought “it best and most advisable to make sale of the real estate without further delay.” The order was granted, the report of sale confirmed m'si, and exceptions filed. After argument, the sale was set aside, and it was held that the fund arising from such sale would not be in condition to be administered and distributed, but a testamentary trust would be constituted, which cannot be committed to an administrator 'c. t. a.</p>

<p>A contract by which A. agreed to execute a good and sufficient deed of a lot of ground to B., upon the payment of fifty dollars, the erection of a building, and its operation as a foundry by tire latter, will be enforced, notwithstanding the business of a foundry was afterwards changed.</p>

<p>If ajustice issue an execution, although there has been an appeal, the constable: cannot be held liable for proceeding with the execution.</p>

<p>Error to the Court of Common Fleas of Luzerne county.</p>

<p>Landlord’s lien for one year’s rent on goods liable to distress is a prior lien by the Act of 1836.</p>

<p>A railroad company formed by the consolidation and merger of two or more railroad companies, is responsible for the debts and liabilities of each of the merging roads arising prior to such consolidation.</p> <p>A provision in the charter of a railroad which malees it subject to the provisions and restrictions of the act of February 19, 1849, limits its right to charge for toll and motive power, when the cars used for transportation over the road are owned or furnished by others, to two cents for each car, and three cents for each ton per mile carried, but does not limit it to freight charge, if it furnish the car.</p> <p>If a consignee who furnishes such a car, pays to a connecting road the bade charges of the company thrrs restricted, in order to get possession of his goods, which charges so paid are largely in excess of the toll authorized, such a payment is a payment to the company restricted, and enures to the benefit of the consignee, the same as though it was paid directly to the original company.</p> <p>A voluntary payment, although it be unauthorized, cannot be received back, but where a consignee, in order to secure his goods, of which he has need, and which, if not taken by him are exposed to risk of fire and damages, pays the' charges of the party having the goods in possession, such a payment is not voluntary, and if illegal can be recovered back.</p> <p>The difference between tolls and freight explained.</p>

<p>Where a testator devised real estate to his widow for life, directing it to be sold on. her death and the proceeds to be distributed, and the widow declined to take under the will, petitioning for partition and valuation under'sci of -20 April, 1869 (Brightley 530), kcltf, I. that the court had jurisdiction in sucfi a case; 2. that the sale could take place immediately, without awaiting her death; 3. that the legatees cannot take at their valuation unless all are agreed.</p>

<p>1. In an indictment where a felony and a misdemeanor'are joined, neither the defendant nor his wife is a competent witness; under the act of 3 April, 1872.</p> <p>2. Where the verdict is not in itself insensible, it is not vitiated by the finding of superfluous matter by the jury.</p>

<p>Exceptions to auditor’s report.</p>

<p>Exception to auditor’s report of distributio i of proceeds of sheriff’s sale.-</p>

<p>Until a person encloses his land, or part of it, he cannot legally be called upon to pay any part of the expenses of building fences by persons adjoining his land on either side.</p>

<p>Upon presentation of petition asking for the appointment of road viewers for a douhle purpose after their appointment, the court of quarter sessions has full power to allow such amendments in said petition as will remedy defects.</p>

<p>The city is liable for the killing of a boy in the building of a bridge, although it ■was built by contract, where the work is intrinsically dangerous.</p>

<p>Error to the district court of Philadelphia.</p>

<p>Witnesses attending without subpoena, and not called to testify, are entitled to their «costs where a subpoena had been taken out but they waived its service, and where there .was no allegation that their testimony was not needed.</p>

<p>1. Where judgment has been entered by a justice against a defendant who was in default, but who, within twenty days entered bail for an appeal which he neglected to-bring into court, certiorari will not avail to set aside an execution subsequently issued, even though the service of the summons be shown by the record to have been defective. Taking the appeal amounts to a recognition that the case was regularly before the justice, and is a waiver of the defect which otherwise would have been fatal.</p> <p>2. An agent may appear before a justice and take an appeal. The justice is the judge of the agent’s authority, which, it must be presumed, was satisfactorily shown.</p>

<p>When one puts his name on the back of negotiable paper before the payee has endorsed it, he assumes the legal relation of second endorser. To make him liable to any holder, the implied condition that the payee shall endorse before him, must be complied with to give him recourse against the payee.</p> <p>The opening of a judgment regularly obtained is ex gratia. It will be refused ■where the defendant is guilty of laches, and especially where he tenders no affidavit 'explaining his laches, and showing a defence,</p>

<p>The finding of an auditor, upon the evidence submitted before him, unless very plain mistake is shown, will be considered as conclusive, especially where his finding has been approved of by the court below.</p>

<p>An affidavit for the removal of a cause in which a corporation is a party, may Ire made by the agent or employee of the corporation.</p> <p>Plaintiff bought a ticket over defendant’s road, rode part of the distance, stopped over without permission, and tendered the same ticket (or the remainder of the distance. The conductor took up the ticket, refused to return it, demanded fare, and, upon refusal to pay until the ticket was returned, ejected the plaintiff. Held that the defendants were not entitled to the ticket and the fare too. and that the ejectment of the plaintiff was unlawful.</p>

<p>The husband is liable for necessaries furnished to the wife for the support of herself and family, although she has been decreed a feme sole trader.</p>

This was an action brought under the act of assembly of March 21, 1772, to recover possession of premises No. 141:9 Race street, in the city of Philadelphia. The proceedings before Aldermen Beitler and Smith, and jury of inquest, were certioraried to the court of common jileas A number of exceptions were filed. The oniy ones pressed at the argument, however, were: “1. The complaint was not made on due proof It is neither sworn to by Gavit nor by Blair.

<p>Error to common pleas of Warren county.</p>

<p>Error to the common pleas of Clinton county.</p>

<p>The question of damages for personal injuries, resulting from the negligence of railroad employees, is for the jury to determine.</p>

<p>Appeal from the common pleas of Northampton county. In equity.</p>

<p>Error to the common pleas of Philadelphia.</p>

<p>Mechanics, Miners, laborers and others claiming under the act of April 9, 1872, must give notice in writing to the officer executing the process before the actual sale of the property; in default of this notice, no lien. Construction of said act and its requirements.</p>

<p>1. The statute of limitations never extinguishes a debt; it only forms a bar to the remedy to recover it by action.</p> <p>2. Where several remedies are given, the party entitled to them may select that which is best ealulated to serve his ends.</p> <p>3. The act of February 24,1806, authorizing judgments to be entered by the prothono-tary on notes and other instruments, with''confession of judgment attached, gives an additional remedy for collection to which the statute of limitations does not apply.</p> <p>4. Where a debt, even though it be “grounded upon any lending or contract, without specialty,” is acknowledged by a debtor under the form of a note, with confession of judgment attached, it may be entered in judgment and coPected, notwithstanding more than six years have intervened between the maturity of the note and the entry of judgment upon it.</p>

<p>Equity will not restrain a proceeding by landlord against tenant lor possession upon grounds, such as change of title, which may he asserted by the tenant in the proceeding itself.</p>

<p>The proceeds of the sale of a seat in the Board of Brokers of a member who failed to Settle with his creditors, when sold under the articles of association of the Board, are first applied to his creditors in the Board.</p>

<p>1. The maker of a promissory note is by the form and effect of his contract a ¡principal and cannot reduce his responsibility to the holder to that of a surety by proof r_hat he made the note for the accommodation of another party and that that was well known to the holder at the time he received it</p> <p>2. Therefore the maker of a promissory note is not discharged from responsibility to the holder who discounted it for another person, by proof that the holder knew that the maker was an accommodation maker and neglected to issue an execution upon a judgment which he held as a security for the note, when notified to do so by the maker.</p>

<p>1. An appeal from the judgment of a justice of the -peace may be dismissed even after an-arbitration, where it appears that the amount in controversy exceeded the jurisdiction of the justice.</p> <p>2. A justice has jurisdiction where the plaintiff’s claim, however large, is reduced to or below one hundred dollars by direct payments, or by dealings, amounting to and admitted as payments.</p>

<p>Exceptions to Report of Auditor.</p>

<p>1. In a suit against three drawers of a joint promissory note, where there has been service of the writ upon two only, a copy of the note and a mere statement filed are 'sufficient to entitle the plaintiff -to judgment against those served — under the 5th section of the act of March 21, 1S06,</p> <p>2. The notice required to be given by surety to a principal in order to discharge him from undoubted legal liability should he clear and explicit to proceed and collect the -debt,</p> <p>3. The notice should be given after the maturity of the note, and reasonable time to proceed should be allowed, and the affidavit should state with certainly all the material facts required.</p>

<p>1. There is no exception to the rule, that in actions real a defence which arises during' the pendency of the suit may be pleaded in bar of the plaintiff’s rights.</p> <p>2, Upon a trial in the common pleas in a proceeding which originated before two justices of the peace by a landlord to obtain possession of demised premises, it is competent for the defendant to set up as a defence that the title of the landlord had been divested during the term, and that he had the right from the owner, whose title had accrued pending the suit to remain in possession.</p>

<p>1. Under the act of April 29, 1874, the petition and charter of a proposed corporation, must conform, both in principle and form to the directions and provisions of the act.</p> <p>2. A charter not approved by reason of negligence in these particulars.</p>

<p>Appeal of Lewis Peterman from the decree of the Orphan’s Court of York county in the matter of the distribution, &c., real estate of ■Sarah Peterman, deceased.</p>

<p>A judgment by default on an appealed case not taken in accordance with the rule in such cases is-of no validity and will be set aside.</p>

<p>Indictment Selling Liquor -without License.</p>

<p>The bond of a married woman for purchase money though constituting a lien upon the land purchased is invalid as a personal obligation, and execution will be restricted to to the land sold.</p> <p>Quare. Whether a foreign corporation located in another State is subject to an at- ■ tachment execution ?</p>

<p>Appearance is a waiver of notice to appear in an application for a stay of execution,</p> <p>in calculating the 30 days allowed by law to enter bail for a stay, the day on which judgment is entered is excluded.</p>

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

<p>In a proceeding by bill in equity to restrain the collection of school taxes, the court will not inquire into the validity of the appointment of the collector, he having given bond with sureties approved as required by law.</p> <p>The act of May 8, 1854, did not establish a fixed rate of taxation for school purposes. It merely provided a s:andard, by which the maximum rate could be ascertained at the time the tax is levied; to wit: the amount of both State and county taxes, authorized by law.</p> <p>The act of 23 Feb. 1866, exempting real estate from the three mill tax for State purposes, operated as a reduction of a like amount on that species of property for school purposes.</p> <p>A levy of thirteen mills on real estate is three mills in excess of ivhat the law allows. The collection of such excess may be restrained by injunction.</p>

<p>Parol evidence may be properly admitted to prove the number of acres in a farm called in testator’s will the McKinstry farm.</p>

<p>z. All attempts to commit misdemeanors are indictable at common law.</p> <p>2. Under the Pennsylvania law an attempt to vote illegally, is indictable as well as Hie actual commission of the offence.</p>

<p>1. The admission of copies of field notes of a person who was not even the deputy-surveyor, cannot be admitted.</p> <p>2. An ancient paper is not only one of great age, but it must come from the proper authority to be admitted.</p>

<p>It is the duty of a party taking up an award of arbitrators, to file it in the prothono-tary’s office without unnecessary delay. Where he willfully retains it in his possession over twenty days, he loses his right of appeal by his own default.</p>

<p>Where there is a written guarantee of the successful operation of the new machinery, the purchaser may try for a reasonable time before returning it to the vendor.</p>

<p>Motion. for Judgment in default of a plea after two weeks notice.</p>

<p>1. What is legal service of summons on an agent under section I, Act May 4, 1852?</p> <p>2. The record of a justice of the peace should show affirmatively everything necessary to give him jurisdiction.</p> <p>3. To hold non-resident defendants by a service on an alleged agent, the return of the officer must show that he complied with the act by serving the summons at the place, or one or other of the places, mentioned in the act.</p>

Rule to show cause why Hugh Campbell, ex. of Shuler, dee’d- and F. M. McKeehan, should not be subrogated to the rights of Plaintiff in the foregoing judgment.

<p>Motion for a Preliminary Injunction.</p>

<p>1 Repairs and additions to a building are not within the purview of the Mechanics’ Lien Law. It must be a rebuilding upon another and a larger scale.</p> <p>2 Newness of structure in the exterior is necessary to give notice to purchasers and lien creditors.</p> <p>3 Whether the erection be new or old is sometimes difficult to decide, and then it is a mixed question of law and fact, and in contested and disputed cases, it is a question for the jury.</p> <p>4 The refusal of the court to enter non suit is discretionary and not reviewable.</p>

<p>The Act of April 9, 1872, “for the better protection of the wages of mechanics, miners, laborers and others,” does not give a lien for wages earned after the particular property has been seized by the sheriff on an execution. Property levied is in the custody of the law, and when sold the proceeds are preserved against lien creditors subsequent to the levy.</p> <p>When a mechanic’s lien which is defective has been filed, and the property against which it is entered is sold by the sheriff before the expiration of the six months allowed by law for filing the lien of a mechanic, the claim may be made upon the fund with the same effect that it could be made, if a lien sufficient in form and substance had been entered of record before the sale.</p>

<p>No one will be permitted so to excavate bis land as to do a permanent injury to the land of his adjoiner, when such adjoinér’s land is in its natural condition, or the injury thereto would result notwithstanding and without artificial pressure thereon.</p> <p> In Equity '. </p>

<p>To plead and demur to the same matter is not allowable. After pleading, a defect in the declaration may be taken advantage of by motion in arrest of judgment, or the de fendantmay be allowed to withdraw his plea, and then demur.</p>

<p>Where accounts are multitudinous the witness may be allowed to refresh his recol lection by means of other accounts and papers as to the items.</p>

<p>Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p>

<p>Application to set aside test. fi. fa. and restrain further proceedings.</p> <p>Buie to show cause, <fcc.</p>

<p>The purchaser of real estate where the sale is made subject to existing Hens, may set up the defence of usury to the payment, pro tanto, of a judgment which was entered against the property at the time of his purchase, part of the consideration of which is .shown to be usurious.</p> <p>The defence of usury may be raised by others than the borrower himself.</p>

<p> In Equity. </p> <p>X Since the passage of the act of 23 Feb., 1866, P. Laws 83, exempting real estate from taxation for State purposes, the maximum for school purposes on real estate is ten mills on a dollar, to be applied to the payment of salaries, books, stationery, lights, fuel, repairs, and other incidental and ordinary expenses of the public schools.</p> <p>2 The special (or building) tax is solely for the purchase «of grounds and buildings, and cannot be used for repairs and improvements of old erections.</p>

<p>Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p>

<p> Habeas Corpus. </p> <p>A guardian of the person of an illegitimile child is entitled to its custody in preference to its putative father.</p>

<p>A contest involving the election of different persons to different offices cannot be raised by a single petition. There must be separate petitions for each office that may be contested.</p> <p>An election held at the proper time and place and by the regularly chosen officers will not be set aside, although fraudulent votes may have been received. The remedy in such case is to purge the polls by striking out the fraudulent votes, if possible.</p>

<p> In Equity. </p> <p>Heirs at law cannot be disinherited by merely negative words in a will — there must be a devise to another to effect that purpose.</p> <p>Where a will duly executed appoints executors and authorizes them to sell the property, the power of the executors to act and sell is not taken away by the fact that the only devise of property in the will is void.</p> <p>A will authorizing executors to sell the property, will authorize a sale of the real estate.</p>

<p>Under the act of i860, requiring the making and repairing of roads in Schuylkill county, to be sold at public outcry to the lowest bidder, supervisors have no authority to make private contracts for the making nr repairing of the public roads.</p> <p>After a private contract made by the supervisor of a township, for the making or repairing of a road, has been pronounced illegal by the courts, an act of the Legislature, directing the auditing and settling of a claim arising under such conliacts, is an attempt to exercise judicial powers, and a departure from the function of legislation.</p>

<p>Judgment was properly entered against a garnishee where the record showed that there was no service on the defendant, who resided out of the county, and that more than five years had elapsed since the rendition of the original judgment without revival.</p>

<p>Where the jurisdiction of a justice is attacked, evidence may be given aliunde to determine the jurisdiction.</p> <p>A party cannot remit part of aclaim to confer jurisdiction on a justice.</p> <p>Want of jurisdiction may be set up in a certiorari to an alias execution to defeat a judgment entered by a justice nine months previously.</p>

<p>A summary con viction by a justice of the peace, the record of which is not in conformity with the Act of Assembly in such case made and provided will be reversed.</p>

<p>When tenants operating under a lease to mine coal, have worked over their boundary i ine into adjoining land leased to other tenants, and this clearly is established or conceded, a court of equity will enjoin against any further working.</p> <p>Where, however, the line is in dispute, an inj unction will not be granted until the rights of the respective parties are settled at law or in equity.</p>

<p>1. Judicial authority has settled that a railroad is not real estate within the intendment of the tax laws, and its depots, places to hold cars, and other places and buildings indispensably necessary to the construction of the road, are incident to it, parts of it, and not separately taxable as real estate.</p> <p>2. There being no legislation authorizing the assessment of county rates upon railroads or parts thereof, the lot, repair shop, turn table and round house of the company cannot be assessed for such purposes.</p> <p>Note. — The case stated shows no separate assessment of the repair shop, or separate tax thereon, nor what proportion is chargeable thereto.</p>

<p>The coaling of locomotives, engaged in transporting live stock, on Sunday, being a work of necessity and charity, is excusable.</p>

<p>Exceptions to an Auditor’s Report.</p>

<p>In a pioceeding under the Act of 13 April, 1807, relating to stray cattle, want of notice to the owner of the stray, will work a forfeiture of all damages.</p>

Rule to show cause why the verdict in the above case should not be set aside and the judgment entered for the defendant' non .obstante veredicto.

<p>Rule to strike off award of Arbitrators.</p>

<p>In the matter of the exceptions filed to the account of Sarah Williams, deceased.</p>

<p>When an inquisition has been held, and the defendant’s land condemned, a judgment creditor, who has levied upon the same land under a Fi. Fa., may issue his Ven.' Exp., and sell without another inquisition.</p>

<p>Mandamus will not lie where there is an adequate remedy at law.</p> <p>The Court will not restrain by mandamus an alleged illegal increase of assessment of property for taxable purposes, the Act of Assembly of 10 May, 1871, providing a full and adequate remedy by appeal.</p>

<p>Where a lease contains a covenant that if the rent is not paid at a specifiecT time it-shall work a forfeiture of the lease, and the landlord may forthwith enter and take possession, the non-payment of the rent does not make the lease absolutely null and void, but only voidable at the election of the landlord.</p> <p>' When a landlord with knowledge of the forfeiture, receives rent falling due after that, it is a waiver of the forfeiture ; but not so if the rent was due before the forfeiture.</p> <p>Under the terms of such a lease, if a landlord proceeds by a landlord’s warrant and collects the rent, it is then too late to declare a forfeiture and take possession. If, how- • ever, he declared a forfeiture and took possession before, or simultaneously with, the issue of the warrant, the payment of the rent on the warrant would not restore the right of possession to the lessee.</p> <p>If, through the artifice or trick of the landlord or his agent to enable him to declare a forfeiture, the lessee was induced not to pay the rent within the specified time, it was bad faith — a fraud — on the part of the landlord, and he had no right to take advantage of the delay to declare* a forfeiture for the non-payment of rent due.</p> <p>In an action for breach of covenant for quiet enjoyment the burden of proving a sub-letting on the part of a lessee in violation of his covenant, rests upon the defendant. The lessee’s consent to proceedings upon the part of a third party to procure a right of way through the premises, is not a sub-letting.</p> <p>The word “coal” in this lease construed to have been used in its mercantile sense and not to include nut coal or slack.</p> <p>The measure of damages for ouster is the marketable value of Ihé lease at the time of the ouster.</p>

<p>Claims for services as a nurse of a decedent will not be allowed when there is no evidence oí a contract, but it appeals that the service rendered was a matter of puie charity on the part of the claimant.</p>

<p>Exceptions to the confirmation of the Sheriff’s deed.</p>

<p> In Equity. </p> <p>Where a policy issued by a Mutual Insurance Company provides, that if an assessment on the premium note be not paid within thirty days after notice and demand, the policy shall be null and void until said assessment-be paid; Held, that the words “null and void” did not work an extinguishment of the contract, but merely a suspension of the policy until the default was ended, and that the assured was liable for an assessment made on his premium note during such suspension of his policy.</p> <p>Where a premium note is made payable in such sums and at such times as the directors may, agreeably to their act of incorporation require, an assessment made by the directots in pursuance of the act is conclusive on the assured, and he will not be relieved from the payment of such assessment, or any part thereof, unless he can show fraud or gross mistake on the part of the directors in making it.</p>

<p>The system, for the election of County Commissioners provided in the New Constitution does not go into operation until the General Election in November, 1875.</p> <p>Where the three-years term of an incumbent County Commissioner would expire January, 1875, the election of his successor at the General Election in November, 1874, to serve until January, 1876, was authorized and valid under the provisions of the Act of 15 April,' 1834 (P. L. p. 540), and the New Constitution.</p> <p>Under section 2, Act June 14, 1836, (P. L. p. r?o6), any person duly elected to a township or county office, and qualified, is competent and lias the right to file his suggestion, without the intervention of the Attorney-General, for a writ of quo warmnto -against the person intruding or unlawfully holding the office.</p>

<p>1. The principle sum of $ 120,000 is not too large an amount to be withheld from distribution upon the audit of an administrator’s account for the purpose of meeting an annual payment of $6,000.</p> <p>2. The jurisdiction of the Orphans’ Court over claims made against a solvent estate, by creditors of the decedent, is not exclusive, but concurrent with that of the courts of the common law; and where a creditor has elected to sue in another tribunal, and refuses to present his claim against the fund for distribution in the Orphans’ Court, the latter will, notwithstanding a legatee’s demand for present distribution, direct enough of the fund to be retained by the administrator, to meet the exigency of the creditor’s suit in another Court.</p>

<p>Rule in above cases for judgment for want of Sufficient affidavit of defence.</p>

JBule to show Cause why the ahorre Municipal Lien, and all proceedings under it, should not be stricken off, for matter appearing on the record.

<p>Exceptions to Auditor’s Eeport.</p>

<p>Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p>

Petition for an appeal by Plaintiff from the increased assessment of two lots and brewery. 1st Feb., 187-5. Motion on part of defendants to quash the appeal.

<p>Rule to show cause why the Mechanics Lien should not be stricken off for reasons appearing on the face of the record.</p>

<p>The defendant’s intestate was the owner of coal land. He and the Company entered into a contract for the coal, the Company agreeing to pay therefor, “the sum of ten cents for each ton (of 2240 Tbs.) of screened coal mined and removed from said land.” Two screens were erected, one for “lump coal,” and another for “nut coal,” and both parties assented thereto, and the coal was shipped to market.</p> <p>The Company resist the payment for “nut” coal on the ground that only “lump” coal was understood in the contract as coal.</p> <p>Held, that whatever may be the relative value of the different, grades of coal in the market, or the loss or profit on the same, the liability of the Company to the defendant for the coal taken cannot be affected by it.</p>

<p>Error to the Court of Common Pleas of Northumberland Co.</p>

<p>Alternative Mandamus.</p>

<p>Exception to the confirmation of the Report.</p>

<p>1. It must appear by petition or affidavit that at least three signers of articles of incorporation are citizens of Pennsylvania.</p> <p>2. The articles must show the place where the business is to be transacted ; the location of its office is not sufficient.</p> <p>3. Notices of application for charter must be published in the Legal Intelligencer and two general newspapers.</p> <p>4. Such notice should specify particularly the time and place of such intended application.</p>