Volume 2 — Pennsylvania District & County Reports

<p>Townships — Division of toivnships — Organization of government — Appointment or election of officers — School law — School districts — Acts of May 18, 1911, May 28, 1915, and July U, 1917.</p> <p>1. After a decree has been entered dividing a township into two new townships, the Court of Quarter Sessions has no authority, under sections 180, 181 and 183 of the Act of July 14, 1917, P. L. 840, to appoint officers for the government of the new townships.</p> <p>2. Such officers must be elected at the next municipal election occurring at least three months after the formation of the new townships, as provided by chapter iii, art. iv, section 65, of the Act of July 14, 1917, P. L. 840.</p> <p>3. There is nothing in the School Law of May 18, 1911, P. L. 309, as amended by the Act of May 28, 1915, P. L. 627, relating to the formation of school districts, which justifies such a construction of the Act of July 14, 1917, P. L. 840, as to require the township officers to be appointed by the Court of Quarter Sessions.</p> <p>4. Where a decree forming two new townships out of an old township was entered on Nov. 14, 1921, the election of the first set of officers for the new townships will be held at the municipal election in November, 1923, and until December, 1923, when the new officers will be installed in office, the township organization of the original township will continue.</p> <p>5. The first board of school directors in each of the new school districts will take charge of its affairs at the beginning of the then next school year, as defined by section 301 of the Act of May 18, 1911, P. L. 309, as amended by the Act of May 28, 1915, P. L. 627.</p>

<p>Rule to dissolve foreign attachment. C. P. Lancaster Co., Oct. T., 1921, No. 33.</p>

<p>Motion,in arrest of judgment. Q. S. Fayette Co., Dec. Sess., 1920, No. 33.</p>

<p>Justice of the peace — Appeal — Defective transcript — Perfecting transcript.</p> <p>Where a clerk of a justice of the peace omits to note the appeal in the transcript certified by the justice and duly filed by defendant, who could not read English and was without counsel, and the plaintiff assumes in the Common Pleas to treat the appeal as filed on his behalf for purpose of lien and issues execution thereon, the court will allow the appeal to be perfected by substitution of a corrected transcript.</p>

<p>Decedent’s estate — Advertisement of the granting of letters — Time for filing account — Act of June 7,1917.</p> <p>1. The executors or administrators of every decedent should, immediately after the granting of letters to them, cause notice thereof to he given hy advertisement as prescribed in section 10 of the Fiduciaries Act of June 7, 1917, P. L. 447, 469.</p> <p>2. An account should not be filed before six months have expired from the granting of letters; if filed and presented for audit before the expiration of six months, it will be struck from the audit list and the register of wills ordered to mark the account filed as of that date, and to advertise it according to law.</p>

<p>Alderman — Jurisdiction—Suit on forfeited recognizance.</p> <p>An alderman has jurisdiction in a suit on a forfeited recognizance bond in the sum of $300.</p>

<p>Assumpsit. Motion for new trial. C. P. Adams Co., Jan. T., 1920, No. 81.</p>

<p>Rule for new trial. C. P. Berks Co., Sept. T., 1920, No. 88.</p>

<p>Election law — Nomination papers — Failure to file the certificate from prothonotary — Act of July 9, 1919.</p> <p>Where nomination papers have been filed with the county commissioners and objections are filed thereto that no certificate from the prothonotary’s office was filed setting forth compliance with the Act of July 9, 1919, P. L, 855, in pre-empt-ing the name under which the papers were filed, such nomination papers are void and cannot be amended by filing the certificate from the prothonotary mmc pro tunc.</p>

<p>Contract — Sales—Confirmation of sale — Notice—Principal and agent.</p> <p>1. Where a written agreement for sale of goods provides that “when confirmed by home office this order becomes a contract,” no contract is effective until the acceptance by the home office has been duly communicated to the buyer.</p> <p>2. Under such circumstances, the buyer can cancel an order at any time before due notification of its acceptance is communicated by the seller’s agent to him.</p> <p>3. If the evidence is conflicting as whether notice of acceptance was given, the case is for the jury.</p>

<p>Judgment by default — Failure to serve affidavit of defence — Power of pro-thonotary — Practice, G. P.</p> <p>1. Where an affidavit of defence has been filed in the prothonotary’s office, but a copy thereof has not been served upon plaintiff, the prothonotary has no power to enter judgment for plaintiff "for want of an affidavit of defence.”</p> <p>Judgment — Opening judgment — Oversight of counsel.</p> <p>2. Where a judgment has been entered by default because of an oversight of counsel, and an application to open has been promptly made and an affidavit filed showing a defence on the merits, the judgment will be opened.</p>

<p>Public officers — County commissioners — Discretion as to purchase of an automobile.</p> <p>1. If, in the judgment of the county commissioners, it is necessary for the proper administration of their duties that the county own an automobile, they may, in the exercise of a sound discretion, purchase one.</p> <p>2. The discretion of the taxpayers as to the expenditures of county funds cannot be substituted for that of the county commissioners, who are elected by the people for the administration of county affairs.</p>

<p>Statement of claim — Book entries.</p> <p>Books of original entries which conform to rules well established by the authorities will be received as evidence of the sale and delivery of goods, but books which on their face show that they are not books of original entries cannot be so received, and a statement of claim which avers that the action is upon such a book account will be stricken from the record; but leave will be granted to file a new statement within fifteen days from date if the claim can be proved aUunde.</p>

<p>Boroughs — Commercial business — Corporations—Electric light companies —Equity—Jurisdiction—Public Service Commission — Act of June 19,1871.</p> <p>1. The Public Service Commission has no jurisdiction over boroughs, in so far as they engage in serving electricity.</p> <p>2. Under the Act of June 19, 1871, P. L. 1360, a court of equity has jurisdiction to restrain a borough from engaging unlawfully in the business of serving electricity.</p> <p>3. Where an electric light company is authorized by its charter to supply electricity to a township, and is willing and ready to do so, its rights are superior to those of an adjoining borough which seeks to enter its field, and, in a proper case, equity will enjoin the borough from such action.</p> <p>4. A borough has no power to enter into a commercial contract, such as a bailment lease of motors to a company to which it supplies electricity.</p> <p>Borough Code of May 14, 1915, P. L. 312, considered.</p>

<p>When statement and set-off not sufficiently specific — Practice Act of May 14, 1915.</p> <p>1. On an action to recover an amount stated as daily salary and traveling-expenses, due under a contract, an affidavit of defence is insufficient which simply denies that the plaintiff incurred expenses to the amount claimed, without setting forth any facts upon which it bases that denial and alleges that it has no account of the number of days on which the plaintiff worked.</p> <p>2, In such case a claim of set-off, alleging that the plaintiff agreed to complete the work in sixty days and failed to do so, in consequence of which the defendant “suffered damages to the extent of the plaintiff’s claim or more,” without stating how the defendant was damaged by the plaintiff’s delay, is insufficient. A set-off must 1#« averred with the same precision and particularity as the claim in the statement.</p> <p>Practice Act of May 14, 1915, P. L. 483, considered.</p>

<p>Costs — Habere facias possessionem — Sheriff’s costs — Hauling and storage of goods — Act of July 11, 1901.</p> <p>The Act of July 11, 1901, § 1, P. L. 663, which provides that the sheriff shall be allowed reasonable costs for help when absolutely necessary in executing: writs of Juiber<e facias possessionem, merely contemplates the help that is necessary to dispossess the party in possession of the premises if resistance is made, and to remove defendant's goods from the premises. It does not include the hauling of the goods to storage or the storage paid thereon by the sheriff, or hire of an ambulance to remove to a hospital some sick occupant of the premises.</p>

<p>School Code — Compulsory attendance — Violation—Justice of the peace— Certiorari — Record-—Requisites.</p> <p>1. The Court of Common Pleas has jurisdiction by certiorari of a judgment of a justice of the peace for violation of the compulsory attendance provisions of the School Code of May 18, 1911, §§ 1414-1423, P. L. 309, notwithstanding that they provide for an appeal to the Quarter Sessions.</p> <p>2. When the record of a summary conviction does not contain the substance of the testimony, although stating that certain persons, naming them, were called and sworn as witnesses, it is defective, and the judgment will be reversed.</p> <p>3. In such a proceeding the transcript should show that witnesses established the age of the child, his parentage, the legal residence of the parent within the school district, the service upon the father of the notice required, the absence of the child from school after the expiration of the three-day period, the manitenance by the school district of a day school in which the common English branches are taught in the English language, and such other facts as are required by the School Code.</p>

<p>Motion for new trial. Q. S. Dauphin Co., March Sess., 1921, No. 31.</p>

<p>Motion to continue preliminary injunction. C. P. Allegheny Co., April T., 1922, No. 1598.</p>

<p>Divorce — Adultery—Evidence—Declarations of paramour.</p> <p>Voluntary declarations of a paramour, not under oath and not subject to cross-examination, are not sufficient to justify a decree in divorce on the ground of adultery.</p>

<p>Appeal from auditors’ report. C. P. Lancaster Co., Trust Book 25, page 290.</p>

<p>Decedents’ estates — Intestate laws — Adoption — Rights of a child of adopted son in adoptive mother’s estate — Acts of May k, 1855, May 28, 1915, and June 7, 1917.</p> <p>1. Where a woman died in 1920 intestate as to most of her estate, leaving to survive her a child of an adopted son and collaterals, such child takes the portion of the estate passing under the intestate laws, to the exclusion of the decedent’s collateral kin.</p> <p>2. Adoption, whether by deed or judicial decree, was no part of the common law either of England or Pennsylvania, but is wholly the creature of statute.</p> <p>3. The inheritance rights of a party to an adoption in the estate of the other are those only which are authorized and defined by the statute.</p> <p>4. The Intestate Act of June 7, 1917, P. L. 429, divorced the matter of inheritance under adoption from previous adoption statutes, so that, subsequently to Dec. 31, 1917, when such act went into operation, the subject-matter of inheritance following adoption of minors, as well as adults, is controlled by that act.</p> <p>5. In other respects the previous adoption statutes are still in force.</p> <p>6. Under the Act of 1917 an adopted person becomes, to all intents and purposes, a child', heir-at-law and a member of the family of the adopting parent, being thereby invested with all the fixed rights, as well as the inchoate inheritance rights, of a natural child of such parent.</p> <p>7. The statute impliedly vests reciprocal rights of inheritance in the children and descendants of the adopted person, permitting them to inherit, not only from the adopting parent, but also from the natural relatives of the latter through the gates of the channel of inheritance left open by the deaths of the original adopting and adopted persons.</p> <p>8. As the issue of an adopted person has precisely the same inheritance rights in the adoptive parent’s estate as have the issue of a natural child of such parent, such adoptive issue will take and inherit through such adopted person by succession and representation.</p> <p>9. It seems that the Act of 1917 does not give to the children and descendants of adopted children the right to inherit from their parents’ natural ascendants and collateral relations.</p>

<p>Justice of the peace — False arrest — Notice to justice — Requisites—Abode of attorney — Amendment—Act of March 21, 1772.</p> <p>1. A notice to a justice of the peace prior to issuing' a writ against him, required under the Act of March 21, 1772, 1 Sm. Laws, 364, signed by an attorney, but not containing therein, or endorsed thereon, the place of his abode, is defective.</p> <p>2. In a suit against a justice of the peace for damages for false arrest, the plaintiff’s statement showing such a defective notice, on an affidavit of defence raising questions of law, leave was granted to amend, and, on default, judgment to be entered against plaintiff.</p>

<p>Justice of the peace — Jurisdiction—Burden on defendant to show want of jurisdiction — Judgment given publicly — Form of action — Injury to automobile.</p> <p>1. Where the transcript of a justice of the peace shows on its face that the justice had jurisdiction, the burden is on the defendant who alleges want of jurisdiction to show it.</p> <p>2. In the absence of anything to the contrary, the presumption is that the justice of the peace gaye his judgment publicly.</p> <p>3. In an action before a justice of the peace for injuries to an automobile sustained in a collision with defendant’s automobile, the fact that a stepdaughter of the defendant was driving his car with him in it in no way controls the form of action.</p> <p>4. The law will esteem the acts of a servant when done in his master’s presence and employment, without objection or dissent, as his acts.</p> <p>5. Where the damages sought to be recovered are direct and immediate, and not indirect and consequential, a justice of the peace has jurisdiction of the subject-matter in an action for the recovery thereof if the amount does not exceed the limit of his jurisdiction.</p>

<p>Abduction or kidnapping — Indictment for — When insufficient.</p> <p>An indictment which merely avers that the defendants “did forcibly abduct and steal away one James Ellwein, then in the legal custody of one W. A. Fetrow, and sent him, the said James Ellwein, into another country and state,” is defective, in that it does not aver the age or sex of the person abducted, or an intent to deprive the person having legal custody of possession of such person, or to steal any article of apparel, or extort money, or state what was the purpose of the abduction.</p>

<p>Statutory demurrer. C. P. Lehigh Co., Jan. T., 1922, No. 73.</p>

<p>Road law — Private road — Board of view — Qualifications of members— Notice — Act of June 23, 1911.</p> <p>1. The provision of the 1st section of the Act of June 23, 1911, P. L. 1123, that viewers must be freeholders is mandatory.</p> <p>2. Section 5 of the same act is also mandatory in requiring that at least one person appointed on a board of view shall be learned in the law.</p> <p>3. It must affirmatively appear that notice was given to the owner of premises over whose land a proposed private road will pass.</p>

<p>Lunacy — Weak-minded persons — Adjudication of a person as weak-minded — Evidence—Witness—Competency—Divorce—Acts of June 13, 1836, May 23, 1887, June 25, 1895, April 18, 1905, and May 28, 1907.</p> <p>1. An adjudication under the Act of May 28, 1907, P. L. 292, that a person is so mentally defective as to be unable to take care of her property, is not an adjudication of lunacy within the Act of May 23, 1887, P. L. 158.</p> <p>2. Where a husband institutes divorce proceedings under the Act of April 18, 1905, P. L. 211, which relates to procedure and proof, on the ground of cruel and barbarous treatment, as provided by the Act of June 25, 1895, P. L. 308, and his wife appears and defends, he is not .rendered incompetent to testify by reason of the fact that she had been adjudicated so mentally defective, in proceedings under the Act of May 28, 1907, P. L. 292, as to be unable to take care of her property, although she had never been adjudicated insane under the Act of June 13, 1836, P. L. 589; and this is the case although the wife was in fact insane at the time of the hearing.</p>

<p>Branch or lateral railroads — Private use — Injunction — Fraud—Equity practice and jurisdiction — Demurrer—Acts of April 4, 1868, and June 19, 1871.</p> <p>1. A demurrer to a bill in equity for an injunction.to restrain a railroad company, organized under the Act of April 4, 1868, P. L. 62, and its supplements, from constructing a branch railroad or siding across land of plaintiffs, will be dismissed, when it is alleged in the bill that the branch or siding which defendant proposes to build is not necessary to increase its business and to accommodate the trade and travel of the public, and is not for public use, but is only a contrivance to secure for the private use of an individual the advantages granted by the Commonwealth to railroad companies for public purposes, and is in fraud of the statutes relating to lateral railroads, and that the threatened entry by defendant upon the land of plaintiffs is an injury for which plaintiffs are without a sufficient and adequate remedy at law.</p> <p>2. A court of equity has jurisdiction to inquire into such a proceeding under the Act of June 19, 1871, P. L. 1360, it belonging to a class of cases in which, though the power to do the act complained of apparently was given by the railroad company’s charter, it is being attempted to be exercised in a manner, for a purpose, or to an extent, not authorized by law.</p>

<p>Motions ex parte defendant for new trial and for judgment n. o. v. C. P. Allegheny Co., July T., 1921, No. 715.</p>

<p>Petition for the approval of a site for the location of an incinerating or g-arbage destruction plant. C. P. Westmoreland Co., Feb. T., 1922, No. 344.</p>

<p>Motion to strike off part of affidavit of defence. C. P. Montgomery Co., Sept. T., 1921, No. 119.</p>

<p>Trusts and trustees — Constructive trust — Parol agreement — Ejectment— Acts of April 22,1856, and June 7,1915.</p> <p>1. Under the Act of June 7, 1915, P. L. 887, the court In an action of ejectment may enter such judgment on the pleadings in favor of either party as it may appear to the court the party is entitled to.</p> <p>2. Where a deed is made by a father to a son without any fraud on the part of the latter in procuring it, the breach of a parol agreement, made by the son when the deed was executed, cannot, under the Act of April 22, 1856, P. L. 532, be set up in an ejectment by the son seeking to gain possession of the property.</p>

<p>Public officers — County treasurer — Compensation—Commissions on receipts —Act of April 15, 1834.</p> <p>Where the compensation of a county treasurer has been fixed at 1 per cent, upon "all money paid out and received” in accordance with the terms of the Act of April 15, 1834, P. L. 537, 544, he is not entitled to commissions upon the funds delivered to him by his predecessor in office.</p>

<p>Equity — Injunction — Nuisance — News-stand — Municipalities — Public streets — Use for private purposes.</p> <p>1. Ownership of land ordinarily vests title to the centre of an abutting street, subject only to the easement of the city for legitimate municipal purposes.</p> <p>2. A municipality cannot give permission to use any part of the highway for a purely private purpose, and the maintenance of a news-stand will be restrained as a private nuisance. •</p> <p>3. The fact that plaintiff brought this action on the failure of defendant to continue payments of rent does not affect his right of action.</p>

<p>Motion to remit costs. Q. S. Montgomery Co., Feb. Sess., 1921, No. 94.</p>

<p>Affidavit of defence raising questions of law. C. P. York Co., Jan. T., 1921, No. 115.</p>

<p>Unincorporated beneficial associations — Notice of claim required by the by-laws — Waiver of, by payment to wrong party — Effect of suit before time expired — By-laws binding on beneficiary.</p> <p>1. Where a certificate of a beneficial association provides that all claims of beneficiaries shall be barred unless notice of such claim shall be given within six months from the time the beneficiary has knowledge of the death of a member, a bill in equity by the beneficiary is defective and will be dismissed where it does not aver such notice.</p> <p>2. The payment of the benefit by the association to another claimant after the lapse of six months, but before it had knowledge of the plaintiff’s claim, is not a waiver of such notice as to the plaintiff.</p> <p>3. The fact that the plaintiff had brought suit against the association before the expiration of the six months is not evidence that the defendant had knowledge of the claim, where the writ was not served.</p> <p>4. A widow claiming a death benefit, as a beneficiary named in the certificate, against a beneficial association cannot claim that she is not bound by the constitution and by-laws of the association because she is not a member of it, and is not, therefore, bound to make proof of death within the time called for in the certificate. At most, this would relieve her from making proof in the form required by the constitution, as this is all the certificate requires shall be done according to the constitution.</p> <p>5. Where a beneficial certificate contains a limitation that an action shall be barred if not brought within six months after final rejection of the claim, and it does not appear when, if ever, the claim was rejected, but it appears that the claimant brought suit in Common Pleas within six months of the death, and alias and phiries writs subsequent thereto, and proceedings under the phiries writ were subsequently dismissed by the Supreme Court without prejudice, a subsequent suit in equity is not barred by the limitation.</p> <p>6. Where the principal offices of a beneficial association are in Ohio and benefits are presumably paid from there, the laws of Ohio govern.</p> <p>7. The laws of Ohio require a new action to be commenced within one year from the date on which, in a previous action begun within the time-limit, the judgment for the plaintiff is reversed after the time-limit for cause other than upon the merits.</p>

<p>Negligence — Automobiles — Collision at street intersections — Duties of drivers — Contributory negligence — Act of June SO, 1919.</p> <p>1. Under section 25 of the Motor Vehicle Act of June 30, 1919, P. L. 678, a failure to pass beyond the centre line of the intersecting highway before making a turn to the left is negligence on the part of the driver or operator of a motor-vehicle.</p> <p>2. At such an intersection, the driver on the left must give way, unless so far in advance of another vehicle as to afford reasonable time to clear the crossing and thus avoid a collision.</p>

<p>Beal estate — Sale—Implied covenant against encumbrance — Undiscovered lien — Damages—Practice, C. P.</p> <p>1. Plaintiff purchased real estate from defendant by deed containing- the words “grant, bargain and sell,” and a special warranty, subject to a mortgage. It was afterwards discovered that a judgment had been recorded against the defendant prior to the purchase. Upon default in payment of interest on the mortgage, the property was sold at sheriff’s sale and the purchaser put plaintiff out of possession. Plaintiff sued defendant for damages for breach of warranty and covenants and claimed ¥2700, the amount he had paid defendant for the property over and above the mortgage. On rule for judgment for want of a sufficient affidavit of defence: BeW,, that under the pleadings plaintiff was entitled to nominal damages for breach of the covenant against encumbrances implied in the words “grant, bargain and sell,” but that he was not entitled to judgment for his loss, because the alleged eviction was under the mortgage, not the judgment, and there had been no disturbance of his possession by reason of the judgment, nor any amount paid by him thereon. Rule discharged.</p> <p>Practice, C. P. — Buie for judgment for want of sufficient affidavit of defence — Nominal damages — Practice Act, 1915.</p> <p>2. Where plaintiff, claiming a certain sum as damages, asks for judgment for want of a sufficient affidavit of defence, and it appears that, under the pleadings, he is entitled to nominal damages only, the court will not enter judgment in his favor for nominal damages, but will treat the rule as a rule for judgment for the damages claimed, and discharge it as such under the provisions of section 17 of the Practice Act of May 14, 1915, P. L. 483, authorizing the court to enter judgment or discharge the rule, as justice may require.</p>

<p>Quo warranto. Case stated. C. P. Cambria Co., March T., 1922.</p>

<p>Libel in divorce. C. P. Washington Co., Nov. T., 1921, No. 99.</p>

<p>Streets — Vacation by city — Bights of abutting owners in land vacated— Gas main in street — Removal—Equity—Injunction.</p> <p>1. The Reading School District, desiring to erect a high school building on property owned by it between 12th and 13th Streets in the City of Reading, obtained the vacation of Birch Street between Marion and Perry Streets, which ran through the middle of the property. When excavation started, it was found that an eight-inch gas main of the Consumers’ Gas Company ran through that portion of Birch Street and interfered with the construction of the building. The school district requested the gas company to remove the pipes, which it agreed to do, but insisted that the school district pay the expenses of removal. Thereupon the school district filed a bill in equity asking for a prohibitory and a mandatory injunction against the gas company, restraining it from maintaining the obstruction and compelling its removal. At the hearing on the preliminary injunction granted by the court, counsel on both sides stated that there was practically no disagreement between them except on the matter of payment of cost of removal: Held, continuing the preliminary injunction, that upon the vacation of the street the adjoining owners took title up to the centre thereof, and as the school district was the abutting owner on both sides, it was entitled to claim the whole of the strefet, with the right to have it free from any easement, and that it then became the duty of the gas com- , pany to remove its gas main at its own expense.</p> <p>Public service companies — Laying pipes in city streets — Vacation of street —Removal of pipes. '</p> <p>2. A company accepting a franchise that involves a use of the public streets of a municipality must accept it subject to the continuous right of the municipality to perform its strictly legal functions and obligations, even though such performance may entail some expense upon the holder of the franchise in readjusting its pole lines, water and gas pipes, street car tracks and the like to the new situation brought about by the lawful act of the city.</p> <p>3. Where a gas company lays its main in a city street, it does so subject to the right of the city to change or vacate the street, although such action will require the removal of the main.</p>

<p>Motion in arrest of judgment. Q. S. Westmoreland Co., Aug. Sess., 1921, No. 188.</p>

Petition for rule to show cause why an order of public sale should not be granted and execution stayed. C. P. Cambria Co., Dec. T., 1921.

<p>Rule to strike off suit. C. P. Schuylkill Co., Sept. T., 1919, No. 157.</p>

<p>Indictment for operating motor-vehicle after license revoked. Motion to quash. Q. S. Lancaster Co., Sept. Sess., 1921, No. 24.</p>

<p>Rule to set aside return of the grand jury. Q. S. Westmoreland Co., Nov. Sess., 1921, Nos. 46 and 48.</p>

<p>Motion for new trial. Q. S. Montgomery Co., Feb. Sess-, 1922, No. 1.</p>

<p>Trespass for personal injuries — Statement—Sufficiency of — Negligence of defendant — Presumption of.</p> <p>1. It cannot be claimed In an action for damages for personal injury that a statement is defective in that a particular paragraph states that the injury occurred through the negligence of the defendant, -without setting forth the character or kind of negligence, where this is set forth in another paragraph. The whole statement must he read together, and if in it such material facts as to make out a good cause of action are found, it is sufficient</p> <p>2. The question whether a presumption of negligence arises, because the plaintiff was a passenger in such case, is not involved where negligence of the defendant is expressly alleged in the statement.</p>

<p>Habeas corpus to secure a discharge from imprisonment. C. P. Northampton Co., April T., 1922, No. 70.</p>

<p>Statutory demurrer to statement of claim. C. P. Washington Co., Aug. T., 1921, No. 198.</p>

<p>Boroughs — Election of treasurer — Approval of burgess — Bond—Act of May U, 1915.</p> <p>1. The council of a borough may elect its treasurer, and as this duty is ministerial, it may do so without the approval of the burgess.</p> <p>2. The borough council may specify the amount of the treasurer’s bond, but such resolution must be approved by the burgess, inasmuch as the action of the council is legislative in character.</p> <p>3. Where the amount of a newly-elected borough treasurer’s bond has not been fixed by a resolution of council, approved by the burgess, his predecessor still holds the office and is entitled to the custody of the books and papers thereof.</p> <p>Act of May 14, 1915, P. L. 312, considered.</p>

<p>Affidavit of defence raising questions of law. C. P. Lehigh Co., Jan. T., 1922, No. 23.</p>

<p>Wills — Legacy not charged on land — Devise—Intention.</p> <p>1. A legacy is not charged on land unless by express words or by something in the language of the will to which the court can point with certainty and say that it was the intention of the testator to create a charge.</p> <p>2. A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge upon the land devised.</p> <p>3. An intention to charge a legacy upon land cannot be inferred from the mere fact that testator had no personal property.</p>

<p>In re granting of liquor licenses. Q. S. Luzerne Co.</p>

<p>Deeds — Reservations—Coal mining — Oil wells — Surface support — Damage to improvements — Damnum absque injuria.</p> <p>1. Where the lessor of oil and gas rights in a tract of land holds title to the land subject to an express reservation to others of the right to mine and carry away all the coal thereunder, without liability “for injury done to the surface, springs or buildings by the removal of said coal,” the rights of the lessee can rise no higher than those of the lessor.</p> <p>2. The lessee under such a lease cannot recover against the coal mining company for damages to easing and tubing of his oil well, caused by a subsidence of the surface due to the coal mining thereunder; the damages in such case are darmmm absque injuria.</p> <p>3. It is immaterial that the reservation of the coal and the right to mine the same were expressly subjected to the right to the oil and its removal, since, in the action for injuries to the improvements on the surface, no damage to the underlying oil was averred.</p>

<p>Banks and banking — Cashier acting as director — Acts of April 16, 1850, May 12, 1871, and May IS, 1876.</p> <p>1. A cashier of a bank incorporated under the Special Act of May 12, 1871, P. L. (1872) 1296, may act as one of its directors.</p> <p>2. He is not forbidden so to act by the Act of April 16, 1850, P. L. 477, which provides that he shall not engage in any other calling.</p> <p>3. Banks incorporated under special acts are not subject to the provisions of the Act of May 13, 1876, P. L. 161.</p>

Charge to the jury. C. P. No. 1, Phila. Co., Dec. T., 1920, No. 3249. The facts in this case, as they appear from the statement of claim and affidavit of defence, are to be found stated at length in the opinion by Judge Shoemaker in H. O. Wilbur & Sons, Inc., v. Lamborn et al., 30 Dist. R. 444.

<p>Evidence — Illegally obtained evidence — Intoxicating liquors — Unlawful seizure — New trial.</p> <p>1. A court will not delay or halt a trial to inquire whether evidence, otherwise competent, has been unlawfully acquired.</p> <p>2. Intoxicating liquors found in the defendant’s house upon a search by a police officer on a warrant to’search for firearms are admissible in evidence upon the trial of the defendant on an indictment for having in his possession and manufacturing intoxicating liquors. The admission of such evidence is not ground for a new trial.</p> <p>3. If defendant conceived that his right to be protected against “unreasonable searches and seizures,” guaranteed by the Constitution of the United States and of this State, had been violated by the act of the police officer, he should have made timely application to the court for an order on the officer for the return of the liquor.</p>

<p>Fictitious names — Trade names — Practice, C. P. — Affidavit of defence— Acts of May lb, 1915, and June 28,1917.</p> <p>Where plaintiffs concede in their statement of claim that the name under which they traded brought them within the Fictitious Names Act of June 28, 1917, P. L. 645, and averred that they had registered in accordance with the act, and this ia not denied by the affidavit of defence, the matter of registration is not a fact in issue and cannot be raised by defendant on a motion for judgment n. o. v.; and this is the case although the admitted fact was not offered and1 read into the record.</p>

<p>Equity — Bill-board ordinance — Seal of corporation — Declaration of nuisance — Regulation of location — License fees — Injunction.</p> <p>1. Where a bill in equity is signed by the corporate name and by the president of the corporation, it is not necessary to add the seal of the corporation,</p> <p>2. Where a corporation has erected bill-boards and has leased land and proposes to erect other bill-boards on it, and a municipality threatens to prevent the continuance of the bill-boards and the erection of any others, equity has jurisdiction where it appears that the ordinance under which the municipality proposes to act is unreasonable and void.</p> <p>3. An ordinance which provides that bill-boards not in conformity with its provisions, erected in various parts of the city, are common nuisances, and that they may be removed by the municipality, is unreasonable and void.</p> <p>4. An ordinance which provides that no bill-board shall be located at the intersection of public streets closer than seventy-five feet from the corner of the intersecting streets, and that the lot on which a bill-board is erected shall have a fence of sufficient height and strength to prevent access to the same, is unreasonable and void, as it deprives owners of private property of their right to use the same.</p> <p>5. The power to regulate bill-boards and to collect a reasonable license fee for the inspection of the same is given to a municipality under the police power, but all that a municipality can charge is the cost of reasonable inspection.</p>

<p>Petition of executors for leave to make repairs to realty. O. C. Schuylkill Co.</p>

<p>Practice, C. P. — Foreign attachment — Defendant or garnishee — Affidavit defective — Amendment.</p> <p>1. One against whom a writ of foreign attachment issues may be in court both as a defendant and a garnishee. Such a writ, therefore, will not be quashed, for the reason that it cannot be determined from the writ whether one is therein named as defendant or garnishee.</p> <p>2. Plaintiff is not obliged to file an affidavit as a prerequisite to the issuance of the writ, but, when filed, such affidavit will be considered upon a motion to quash as though it had been filed in response to a rule, and if defective, the writ may be quashed.</p> <p>3. In this case, leave granted to amend the affidavit.</p>

<p>Promissory note — Holder in due course — Interpleader.</p> <p>In an action on a promissory note by a purchaser thereof and holder in due course against the maker, who gave the note to the payee for the price of lumber purchased from him, the title to which lumber is claimed by another party, the defendant should not be permitted to pay the money into court and have the plaintiff ordered to interplead with such claimant.</p>

<p>Rule to strike off affidavit of defence. C. P. Schuylkill Co., Nov. T., 1921, Nos. 23 and 24.</p>

<p>Appeal from decision of the Workmen’s Compensation Board. C. P. Blair Go., Oct. T., 1921, No. 78.</p>

<p>Habeas corpus for the custody of a child. C. P. Lackawanna Co., Nov. T., 1921, No. 543.</p>

<p>Affidavit of defence raising question of law. C. P. Lancaster Co., April T., 1921, No. 31.</p>

<p>Rule for new trial. C. P. Berks Co., May T., 1921, No. 16.</p>

<p>Attorney-General’s Department. ■ Opinion to Dr. John M. Baldy, Commissioner of Public Welfare.</p>

<p>Sheriff’s interpleader — Failure by claimant to pay appraisement fee — • Failure by plaintiff to file answer to interpleader petition — Allowance of payment nunc pro tunc — Allowance of answer nunc pro tunc — Act of May 26, 1897.</p> <p>1. Where a claimant of goods levied upon by the sheriff has failed to pay the $4 appraisement fee required by the Act of May 28, 1897, P. L. 95, and has failed to file a bond, he cannot, after an interpleader has been granted, move to strike the issue from the record because no appraisement had been made. He will be permitted, however, to pay the appraisement and file a bond nunc pro tune.</p> <p>2. The plaintiff in an execution should file an answer to the sheriff’s petition for an interpleader, but if he fails to do so, he may be permitted to file one nuno pro tune where he has not been guilty of intentional wrong or inexcusable delay.</p> <p>3. Where the sheriff has levied upon personal property in the residence of defendants, and there is nothing in the record to show that a claimant of the goods also resided in the same house, or that he had possession of the goods, it is proper that he should be made plaintiff in an issue on a sheriff’s interpleader.</p>

<p>Promissory notes — Notice of dishonor — Certificate of protest — Mailing certificate — Evidence—Negotiable Instruments Act of May 16,1901.</p> <p>1. In an action by the holder of a promissory note against the payee, who was the endorser of the note, where the sole defence is the alleged failure of the plaintiff to give notice of dishonor to the defendant, a verdict for the plaintiff will be sustained where the evidence is that plaintiff received two notarial certificates of protest by mail, under one cover, a day or two after the date of protest, and on the same day deposited in the mail one of them in an envelope properly stamped and addressed to the defendant.</p> <p>2. In such case, under the Act of May 16, 1901, P. L. 194, evidence merely tending to show non-receipt of the certificate is inadmissible.</p> <p>Practice, C. P. — Trial—Inadvertence in charge — Duty of counsel.</p> <p>3. Where the trial judge is guilty of an inadvertence in his charge, it is the duty of counsel to call his attention to it at the time.</p>

<p>Sheriff’s interpleader — Fictitious names — Failure to aver in affidavit of defence non-compliance by claimant with the Act of June 28, 1917.</p> <p>1. The Act of June 28, 1917, P. L. 645, and the amending Act of May 10, 1921, P. L. 465, have no application to a sheriff’s interpleader proceeding.</p> <p>2. The Act of June 28, 1917, P. L. 645, is a penal statute, must be strictly construed, and is not to be stretched to cover any case which is not clearly embraced in its terms.</p> <p>3. Aside from this, where, in a sheriff’s interpleader, the affidavit of defence only raises the question of the title of the plaintiff to the goods and chattels levied upon by the sheriff, and raises no issue as to non-compliance with the act or with respect to the right of the plaintiff to maintain title to the goods on the ground that she was doing business under a fictitious name and had not filed the proper certificates as required by the act, and testimony is elicited at the trial, on cross-examination of the plaintiff, that the plaintiff had not complied with the act, such testimony will not prevent the plaintiff’s recovery, as there is no issue as to that fact.</p> <p>4. A rule of court prescribing the form in which a statement in a sheriff’s inter-pleader shall be prepared, passed prior to the Act of May 26, 1897, P. L. 95, is abrogated by that act.</p>

<p>Bill in equity for an accounting and for a reconveyance of real estate. C. P. Northampton Co., April T., 1921, No. 3.</p>

<p>Criminal law and procedure — Jurors — Prejudice — General racial preju» dice.</p> <p>1. A juror is not disqualified, on the trial of a Negro defendant, toy reason of a general prejudice against the race, if he answers upon his voir Mre that he would not have bias or prejudice against the defendant because of his race or color.</p> <p>2. The defendant was convicted of murder in the second degree. Upon a motion for new trial it was made to appear that one of the jurors, being examined in another case a few days before this case was called, had stated that he was prejudiced against the Negro race. In the present case he stated that he would not have bias or prejudice against the defendant because of his race Or color: Beld, that there being no other evidence of bias or prejudice against the defendant, this reason was not of itself sufficient to require a new trial.</p> <p>Criminal law — Homicide—Self-defence—Defence of a near relative.</p> <p>3. Where one person interferes in behalf of another who was the aggressor in a fight, and there is opportunity to retreat after the interference, and advantage is not taken of it, the person interfering can claim no greater right than the other, and neither can invoke the doctrine of self-defence.</p> <p>4. Defendant having gone to the assistance of his brother, can claim no greater right than the brother, and if the brother was at fault and had not retreated or attempted to retreat, the interference is not justifiable or excusable.</p>

<p>Criminal law — Twice in jeopardy — Fornication and bastardy — Rape.</p> <p>1. The plea of twice in jeopardy applies to crimes other than murder.</p> <p>2. Where a greater offence includes a lesser one, a verdict on an indictment for the minor offence only is a bar to a trial on an indictment for the greater offence.</p> <p>3. A plea of guilty voluntarily made and received by the court is as effective a conviction as a verdict of a jury.</p> <p>4. Where a defendant pleads guilty to an indictment for fornication and bastardy, and his plea is accepted by the court and entered of record, he cannot thereafter be convicted on an indictment for statutory rape growing out of the same occurrence.</p>

<p>Bill for injunction. C. P. Allegheny Co., April T., 1922, No. 1189, in Equity.</p>

<p>Petition to strike off judgment. C. P. Westmoreland Co., Feb. T., 1921, No. 42, ft. fa.</p>

<p>Motion by defendant for a new trial. C. P. Delaware Co., March T., 1920, No. 99.</p>

<p>Criminal law and practice — Motion for arrest of judgment — Delay by defendant — Preliminary hearing — Waiver—Act of May 27, 1919.</p> <p>1. A. defendant has a right to waive a preliminary hearing. A legislative intent to abrogate such a right should be clearly stated. The Act of May 27, 1919, P. L. 306, does not show such a clear intention.</p> <p>2. All objection to regularity on commitments should be made forthwith, and it is too late to move to quash an indictment after giving bail to appear.</p> <p>3. Where a defendant charged with an assault upon a constable endeavoring to serve a legal warrant waits for four months until after indictment by the grand jury and trial in the Quarter Sessions, and then moves for arrest of judgment on the ground that the return and transcript of the justice do not show a “full hearing and investigation, etc.,” the motion will be dismissed. No man can take advantage of his own wrong. To sustain such a motion after the defendant had waived hearing and then delayed for such a time would work a grave injustice to the Commonwealth.</p>

<p>Practice — Continuance—Surprise—Control by the court of its own order— Non-suit — Entry after regular term of the court.</p> <p>1. The court may control its own order for continuance of a case, and where the reason for entering such an order has been removed, the court may revoke it and require that the case proceed to trial.</p> <p>2. Where surprise is pleaded, it is not necessary that the case be continued to. the next term of the court; an adjournment to a time set is adequate protection to the party pleading surprise if it appear that he has sustained no prejudice or injury.</p> <p>3. A compulsory non-suit may be entered after the expiration of the regular term at which the case was set for trial if the case has been regularly adjourned by order of court to the date upon which the non-suit is entered.</p>

<p>Defective indictment — Larceny—Ownership not properly set forth.</p> <p>An indictment which charges the defendant with having stolen ?190 ‘'moneys and property of the estate of Jacob Helfrick, deceased,” is fatally defective, because it fails to set forth any person or legal entity entitled to possession of the money when the theft took place. Such a defect in the indictment is one of substance, and a motion in arrest of judgment will be sustained after trial and conviction.</p>

<p>Rule for new trial. C. P. Berks Co., Feb. T., 1921, No. 79.</p>

<p>Motion for new trial. Q. S. Dauphin Co., Sept. Sess., 1921, No. 132.</p>

<p>Mechanics’ liens — Real estate — Heating system — Conditional sale — Contract — Right to lien.</p> <p>1. Where one furnishes a heating plant for a building in course of erection, the fact that he executes a conditional sale contract with the owner of the building, reserving title to the heating plant until paid, does not preclude him from filing a mechanic’s lien against the real estate. Such a condition in a contract is but additional security to the vendor and does not affect his right to a lien upon the property, nor does it constitute a waiver of that right.</p> <p>Mechanics’ liens — Materials furnished for new building — Lien filed against whole plant.</p> <p>2. A mechanic’s lien filed against a tract of land, with buildings thereon, constituting a hosiery plant, will not be stricken off on the ground that the materials were furnished for only one new building, where it appears that all of the buildings, including the new one, were on the same tract of ground, belonged to the same owner, and were so related to each other as to subserve a common purpose, and together comprised the hosiery plant.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1921, No. 755.</p>

<p>Beneficial associations — Meeting—Authorization to officers to dispose of property — Bill in equity by minority — Demurrer—Bight of member to file bill.</p> <p>1. A member of an unincorporated beneficial association may maintain a bill in equity against the officers of the association to protect the interests of the association and prevent the disposal of its property against the wishes of the minority. Where threatened or consummated wrongdoing on the part of the officers is clearly alleged in the bill, the plaintiff need not first apply to the association for measures of redress.</p> <p>2. A demurrer to a bill in equity, containing a prayer asking that the officers of the association be directed to deliver over all of the property in their possession to the association, will be overruled where the bill alleges that the officers were unfaithful to their trust and were contemplating an unlawful diversion of the property.</p>

<p>Appeal from award of referee and Compensation Board. C. P. No. 6, Phila. Co., Dec. T., 1921, No. 8993.</p>

<p>Exceptions to supplemental adjudication. O. C. Phila. Co., Jan. T., 1921, No. 270.</p>

<p>Landlord and tenant — Lease of room for business purposes — Right to use outside wall — Advertising sign — Equity—Injunction—Nuisance.</p> <p>1. Defendant was lessee of a store on the first floor of a business building, and plaintiff was lessee of the second floor front room above it, which was used as a music studio. The leases to both reserved to the landlord the right to display “For Rent” and “Por Sale” cards thereon. Defendant, without the knowledge of plaintiff, obtained from the landlord permission to erect an electric advertising sign on the front of the building, running above the first floor, outside the windows of plaintiff’s room. When the work was begun, plaintiff protested against it, and later filed a bill in equity, asking for an injunction. The testimony showed that the sign was lighted until 10.30 P. M., and caused annoyance to plaintiff: Hela, granting an injunction, that the defendant, by placing the sign on the outside of the wall of the second floor, became a trespasser upon the rights of plaintiff, and that the sign, by reason of the proximity of its lights to plaintiff’s windows, was a nuisance.</p> <p>Landlord and tenant — Lease of portion of building for business purposes— Rights in outer wall for advertising signs.</p> <p>2. The lease of a portion of a building for a store or other business gives the lessee the exclusive right to the use of the outer walls of that portion of the building for advertising purposes. Where a second floor front room in a store building is leased for business purposes, the lessee of that room has the exclusive right to the outside front wall of the leased portion for advertising the business carried on therein.</p>

<p>Practice, C. P. — Automobiles—Negligence of chauffeur — Contributory negligence of passenger — Affidavit of defence alleging no cause of action.</p> <p>1. Plaintiff sued to recover damages sustained in an automobile accident while riding as a passenger in defendant’s car. The statement of claim alleged that the driver, in an effort to overtake another automobile to transfer one of the other passengers of his ear, ran in a reckless, careless and negligent manner at a speed of at least fifty or sixty miles an hour, and, while so doing, collided with a telephone pole, injuring the plaintiff. The defendant filed an affidavit of defence, alleging that the plaintiff’s statement set forth no cause for action, because it did not sufficiently allege the agency of the driver, and because the statement disclosed contributory negligence on the part of the plaintiff in joining with the driver in testing a manifest danger: Held, that both the fact and scope of the driver’s agency for the defendant and the adequacy of plaintiff’s compliance with her duty under the circumstances and according to the authorities were matters for the determination of a jury. The defendant was allowed fifteen days to file a supplemental affidavit of defence.</p> <p>Automobiles — Negligence of chauffeur — Liability of owner — Scope of employment.</p> <p>2. In a suit for damages for injuries received in an automobile accident by a passenger through the negligence of the driver in the absence of his employer, the plaintiff must show that the relation of master and servant existed between the defendant and the driver at the time of the accident, that the driver was engaged in his employer’s business and that he was acting within the scope of his employment in operating the car. The employer may not be relieved of liability for the tortious act of the driver when acting for him in furthering his business, although he is acting contrary to instructions and outside of his “line of duty” and without regard to his motives.</p> <p>Automobiles — Negligence of chauffeur — Contributory negligence of passenger — Joining in testing a manifest danger.</p> <p>3. Where danger, arising out of the operation of a vehicle by another, is manifest to a passenger, who has adequate opportunity to control the situation, his negligence will bar recovery if he sits without protest and permits himself to be driven to his injury. Such negligence is not the negligence of the driver, imputed to him as a passenger, but is his own negligence in joining with the driver in testing manifest danger.</p> <p>4. A passenger’s reliance upon the driver’s judgment cannot relieve him from the necessity of acting with due care and prudence.</p>

<p>Divorce. Rule for attachment. C. P. Berks Co., April T., 1919, No. 41.</p>

<p>Exceptions to viewers’ report. Q. S. Lehigh Co.</p>

<p>Workmen’s compensation — Hearsay—Res gestm — Act of June 26, 1919.</p> <p>1. The finding that claimant’s decedent sustained an injury in the course of his employment cannot he based upon declarations made by him some time after the alleged occurrence had terminated; such declarations are hearsay and not part of the res gestos, and, hence, incompetent.</p> <p>2. Section 422 of the Workmen’s Compensation Act of June 26, 1919, P. L. 663, although permitting liberal investigation by providing that the technical rules of evidence shall not apply to the conduct of the hearing, in requiring all findings of fact to be based upon competent evidence, indicates that, in making the findings, irrelevant and incompetent evidence must be excluded from consideration.</p>

<p>Appeal from settlement of capital stock tax. C. P. Dauphin Co., Commonwealth Docket, 1921, No. 31.</p>

<p>Divorce — Libel by husband — Constructive desertion — Cruelty and indignities.</p> <p>Where a wife has by cruel and barbarous treatment of her husband, or indignities to his person, rendered hia condition intolerable or life burdensome, he may file a libel on the ground of desertion and sustain the action by proof that he left the home of the respondent by reason of her ill-treatment of him.</p>

<p>Public officers — Appointed officer — Elected officer — Removal—Secretary of school board — Const., art. vi, sect. U — Acts of May 18,1911, and May 20,1921.</p> <p>1. The so-called election of a public officer hy a school board or a municipal council is not an election, but an appointment, and the persons in that way appointed are subject to removal at the pleasure of the appointing- power.</p> <p>2. The secretary of a school board is a public officer, and under art. vi, 5 4, of the Constitution, may be removed by the board of directors which appointed him without any cause whatever.</p> <p>The School Code of May 18, 1911, §§ 314-323, P. L. 309, 326, ana the Act of May 20, 1921, P. L. 972, considered.</p>