Volume 3 — Pennsylvania District & County Reports

<p>Statutory demurrer. C. P. Lancaster Co., Feb. T., 1922, No. 82.</p>

<p>Suit on lost note — Evidence—Interested witness against decedent — Proof of signature — Services.</p> <p>1. Before the contents of an instrument alleged to have been lost can be proved, there must be proof of diligent and unsuccessful search for the original paper.</p> <p>2. In a suit on a promissory note alleged to be lost, given by one decedent to another, the plaintiff executrix, who is also a legatee of the decedent, is barred as an interested party from testifying to anything which happened in the lifetime of the defendant’s decedent, but she may testify that she made diligent search for the note sued upon and could not find it.</p> <p>3. In a suit upon a lost note against a decedent’s estate, the testimony of witnesses that they saw such a note signed with the name of the decedent, is admissible, though they could not testify as to the genuineness of the signature.</p> <p>4. Such witnesses, though they never saw the decedent write, could, nevertheless, testify as to whether or not the signature on the note was similar to a genuine signature of the decedent.</p> <p>5. Such suit being on a promissory note, evidence is inadmissible as to services performed by the payee for the maker.</p>

<p>Equity — Jurisdiction — Certification to law side of court — Answer — Demurrer — Pleading—Practice, G. P. — Mines and mining — Lease—Principal and agent — Act of June 7, 1907.</p> <p>1. Under the Act of June 7, 1907, P. L. 440, where the defendant in an equity suit desires to question the jurisdiction of the court, he may raise the question in the answer without filing a demurrer.</p> <p>2. Where a clear right is involved and there is no serious dispute as to the existence of such right, equity has jurisdiction to afford relief, but where the right is controverted, a question of fact arises which should be submitted to a Jury.</p> <p>3. On a bill in equity to restrain the mining of coal, where plaintiff avers that he had not authorized any one to mine coal on his lands, and the defendant sets up authority to mine under a parol lease made by an agent of plaintiff duly authorized to make the lease, a material question of fact is raised, which requires the court to certify the case to the Common Pleas to be passed upon by a jury.</p>

<p>Case stated. C. P. No. 5, Phila. Co., June T., 1919, No. 523.</p>

<p>Practice, C. P. — Certiorari—Justice of the peace — Record—Matters outside the record — Depositions.</p> <p>1. Upon appeal to the Common Pleas from the judgment of a justice of the peace, it may he said that it has been the uniform tendency of our courts to dispose of questions arising upon certiorari from the record alone, but there are exceptions to this rule. Depositions may be taken and read to show that the claim made before a justice was not within his jurisdiction, or that partiality or fraud exists on the part of the justice and the record is not correct.</p> <p>Jurisdiction, J. P. — Trespass vi et amis — Trespass on the case — Master and servant — Liability of master for acts of servant.</p> <p>2. The facts upon which the jurisdiction of a justice of the peace is based must appear affirmatively upon the record.</p> <p>3. In an action where a justice of the peace awarded damages for trespass upon lands, where the transcript is contradicted with reference to the evidence produced before the justice by depositions of a witness, who denied that he had testified as stated in the transcript, and the transcript, as thus contradicted, shows that the action was trespass on the case rather than trespass vi et armis, jurisdiction is not established, and judgment will be reversed.</p> <p>4. A master cannot be held for the trespass vi et armis of his servant, unless such trespass was by the command of the master or with his assent. Evidence of the presence of the master at the time of the commission of the trespass, or thereafter, and evidence that he made no objection to the trespass, must be produced before acts of a servant will be esteemed the acts of the master.</p>

<p>Divorce — Annulment of marriage — Misstatement as to age — Coercion— Acts of May 8,1854, and April 14,1859.</p> <p>1, There is nothing in the Act of April 14, 1859, P. L. 647, which authorizes a proceeding for the annulment of a marriage because of misstatement of the age of one of the parties, in reliance upon which the license was issued, or because of coercion exercised upon the wife.</p> <p>2. A divorce will not be granted under the Act of May 8, 1854, P. L. -'644, because of fraud, force or coercion on the part of the respondent in bringing about the marriage, where nothing more is shown than that respondent wrongfully stated his wife’s age when procuring the marriage license in another state, and that she acquiesced in such statement.</p>

<p>Negligence — Contributory negligence — Automobiles—Negligence of driver not attributed to guest — Grade crossings — Charge of court — New trial.</p> <p>1. When dangers which are either reasonably manifest or known to an invited guest confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery.</p> <p>2. Although a guest is not required to exercise the same degree of care and watchfulness as the driver, and the carelessness of the latter is. not to be imputed to the former, yet a passenger must bear the consequences of his own negligence when he joins in testing a danger.</p> <p>3. The extent to which one in the position of a guest should appreciate an impending peril and act in relation thereto depends upon the facts peculiar to each case, and unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issues involved must be submitted to the jury for determination.</p> <p>4. In an action by a widow for damages for personal injuries to herself and for the death of her husband in a railroad grade crossing case, where it appeared from the evidence that the automobile in which the plaintiff was riding at the time of the accident was driven by her daughter-in-law, the court charged the jury that for the purpose of inquiring into the question of contributory negligence, "the daughter-in-law who was driving the automobile may be regarded as the agent of her father-in-law and her mother-in-law, and her actions and omissions, if any, as theirs:” Held, error, and rule by plaintiff for a new trial made absolute.</p> <p>Practice, C. P. — Reasons for new trial — Rules of court — Special leave.</p> <p>5. Whilst under rule xli, section 1, of the Rules of Court, reasons for a new trial must be filed within four days after the verdict, the court in a proper case may consider reasons filed later without special leave.</p>

<p>Rule for new trial. Q. S. Susquehanna Co., Aug. Sess., 1922, No. 18.</p>

<p>Trespass. Motion for judgment n. o. v. C. P. Lawrence Co., Dec. T., 1916, No. 89.</p>

Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1923, No. 143.

Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1892, No. 450. From the record it appeared that Michael J. Dohan died on Oct. 24, 1891, leaving a will giving a power of appointment to his daughter, Mary Dohan Huneker, as to the estate left in trust for her benefit. Mary Dohan Huneker died on July 7, 1916, leaving a will, by which she left her residuary estate in trust for the benefit of her husband, John F. Huneker.

<p>Motion to supersede or quash writ of alternative mandamus. C. P. No. 1, Phila. Co., Dec. T., 1922, No. 10035.</p>

<p>Wills — Trusts and trustees — Dry trust — Gift to children.</p> <p>1. Where a testator directs that his real estate "shall not be sold but held in trust for the benefit of my grandchildren so long as any or either of them shall live in all cases the Estate is to go to my heirs,” the trust so created is a dry one.</p> <p>2. In such case the grandchildren are not only entitled to receive all of the income, but they also have vested interests in remainder, no matter whether the testator’s heirs are to be ascertained as of the date of his death, or as of the date fixed for the termination of the trust.</p>

<p>Rule for a new trial. C. P. Lancaster Co., Feb. T., 1921, No. 23.</p>

<p>Motions for judgment non obstante veredicto and for new trial. C. P. No. 5, Phila. Co., Sept. T., 1920, No. 7564.</p>

<p>Practice, C. P. — Set-off—Torts—Acts of Jan. 12, 1705, and May H, 1915.</p> <p>1. Set-off and counter-claim did not exist at common law.</p> <p>2. Set-off is founded upon the Act of Jan. 12, 1705, 1 Sm. Laws, 49, but under the act is confined to actions on contracts.</p> <p>3. There is nothing in the Practice Act of May 14, 1915, P. L. 483, or other legislation, that permits set-off or counter-claim to be pleaded in an action of tort.</p>

<p>Statutory demurrer. C. P. No. 5, Phila. Co., March T., 1922, No. 390.</p>

<p>Petition to terminate trust. O. C. Phila. Co., Jan. T., 1918, No. 42.</p>

Interpleader under the Act of May 26, 1897, P. L. 95. Rule to show cause why the plaintiff’s statement should not be stricken off. C. P. Snyder Co., Oct. T., 1922, No. 36.

<p>Demurrer to return to alternative mandamus. C. P. No. 5, Phila. Co., Sept. T., 1922, No. 6569.</p>

<p>Workmen’s compensation — Insurance carrier — Insurance policy — Cancellation — Notice to insured — Acts of June 2,1915, and July 22,1919.</p> <p>1. Where an insurance policy has been deposited by an insurance company with the Rating Bureau, as provided by the Acts of June 2, 1915, P. L. 769, and July 22, 1919, P. L. 1120, the policy remains in force for its term until canceled; but, in order to effect a cancellation, written notice thereof must be given by the insurance company to the insured, if the policy by its terms provides, for such notice.</p> <p>2. The referee, upon the application of a claimant, may make the insurance carrier a party to the proceedings.</p>

<p>Scire facias sur recognizance. C. P. Lebanon Co., March T., 1922, No. 163.</p>

<p>Arson. Motions in arrest of judgment and for a new trial. O. and T. Phila. Co., Oct. T., 1922, No. 517.</p>

<p>Bill for cancellation of deed and for decree of conveyance, etc. C. P. Allegheny Co., July T., 1922, No. 2102, in Equity.</p>

<p>Attachment of wages for hoard — Acts of May 8, 1876, April 10, 1905, and May 1, 1918 — Special legislation — Constitution, art. Hi, sect. 7.</p> <p>The Acts of May 8, 1876, P. L. 139, April 10, 1905, P. L. 134, and May 1, 1913, P. L. 132, authorizing the attachment of wages of persons indebted for boarding, are in conflict with article iii, section 7, of the Constitution, in that they change the method for the collection of a special kind of debts for the benefit of a special class.</p>

<p>Rule for judgment on affidavit of defence raising point of law. C. P. Lancaster Co., March T., 1922, No. 56.</p>

<p>Attachment execution. C. P. Somerset Co., Sept. T., 1921, No. 5.</p>

<p>Motion for judgment sec. reg. C. P. Lackawanna Co., May T., 1922, No. 197.</p>

<p>Practice, O. C. — Partition—Possession—Proceedings to obtain possession— Decree of court — Notice — Title — Deed — Citation — Return^day — Rules of court, Luzerne County.</p> <p>1. Where the Orphans’ Court has decreed a partition of real estate, and one in possession refuses to surrender the same, alleging that he has not had notice of the court’s decree, an order will issue for possession to be surrendered within ten days after service thereof. If the respondent refuses to deliver the property after that time, the proper writ giving possession may then issue.</p> <p>2. Proceedings to gain possession after a decree of partition need not be brought in conformity with the Act of April 9, 1849, P. L. 524, 527, for such a decree is not a “sale under the order of and confirmed by the Orphans’ Court,” as contemplated by that act.</p> <p>3. A deed is not required in ord'er to vest title awarded under a decree of court.</p> <p>4. A citation awarded by the Orphans’ Court, under the Rules of Court of Luzerne County and the statutes relating thereto, is returnable in ten days.</p>

<p>Statutory demurrer to statement of claim. C. P. Luzerne Co., Dec. T., 1921, No. 616.</p>

Exceptions to decree sustaining appeal from assessment of collateral inheritance tax. O. C. Phila. Co., Jan. T., 1923, No. 555. Held: in an opinion in which many of the cases are reviewed, that John took a life estate only. “Parkhurst v. Harrower, 142 Pa. 432, is so similar to the case at bar as to be controlling; Taylor v. Taylor, 63 Pa. 481 (1870), is also an authority in point.

<p>Plaintiff’s reply raising questions of law. C. P. Dauphin Co., Jan. T., 1921, No. 18.</p>

<p>Practice, O. C. — Decedents’ estates — Executors—Accounts—Confirmation ■ — Petition for review and rehearing.</p> <p>1. After an executor’s account has been confirmed, questions as to whether rents collected by the executor were a part of the decedent’s estate, and whether such rents may be applied to payment of a balance due upon a mortgage given by decedent, cannot be determined upon a petition for a review and rehearing of the account and of the audit and adjudication upon the same.</p> <p>2. It is against the policy of the law that final decrees should be lightly disturbed.</p>

<p>Habeas corpus. Q. S. Phila. Co., July T., 1923, Miscellaneous Docket.</p>

<p>Affidavit of defence raising questions of law. C. P. Dauphin Co., June T., 1922, No. 879.</p>

<p>Prisons — Prison labor — Prison products — Surplus knit goods — Exportation for sale — Act of May 25,1921.</p> <p>1. The purposes for which prison labor is to- be used in the manufacture and production of supplies, and the vendees to whom such products may be sold, are limited and classified by the Act of May 25, 1921, P. L. 1144. No provision is made for the exportation of any such products.</p> <p>2. Ho-wever desirable the opportunity to dispose by exportation of surplus stocks of knit goods and like products of prison labor may be, there is no legal authority to employ prisoners for, or to make sale of, prison products for export and delivery outside of the United States.</p>

<p>Practice, C. P. — Statement of claim — Corporation—Affidavit—Officer making affidavit — Foreign notary — Copy of contract attached to statement — Acts of Aug. 10, 186b, and May lb, 1915.</p> <p>1. In an action by a corporation, where the assistant treasurer makes the affidavit to the statement of claim and swears that the facts set forth therein are true, he need not aver information or belief.</p> <p>2. Under the Act of Aug. 10, 1864, P. L. 962, a notary public of another state is not obliged to affix to the affidavit a certificate showing his authority to act as such.</p> <p>3. Where a statement of claim contains an averment that a true and correct copy of the contract sued upon is attached thereto, the court will treat the exhibit as what it purports to be until it is proven otherwise.</p> <p>The Act of May 14, 1915, P. L. 483, considered.</p> <p>Corporations — Foreign corporations — Registration—Doing business — Act of Jtme 8, 1911.</p> <p>4. A foreign corporation is not doing business in Pennsylvania, within the meaning of the Registration Act of June 8, 1911, P. L. 710, which merely accepts orders from residents of Pennsylvania and delivers the goods f. o. b. at the place of its domicile.</p> <p>5. An affidavit of defence in an action in which the plaintiif is a foreign corporation is insufficient which merely avers, without a statement of any facts, that the plaintiff is a foreign corporation doing business illegally in this State.</p>

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1899, No. 592.

<p>Motion to lift compulsory non-suit. C. P. Lackawanna Co., March T., 1918, No. 234.</p>

<p>Rule to open judgment. C. P. Columbia Co., May T., 1922, No. 129.</p>

<p>Mechanics’ liens — Formal defects — Lumping charge — Motion to strike off— Work on adjoining houses — Apportionment of claim — Repudiation or ratification of contract — Question for jury.</p> <p>1. The proper remedy for a lumping charge in a mechanic’s lien is a motion to strike off the lien. Formal defects in the lien cannot be taken advantage of after a trial on the merits.</p> <p>2. In a mechanic’s lien for work done upon adjoining houses, it is not necessary that the plaintiff state in his claim that the amount due on each house is determined by apportionment. The determination of the amount due may be thus made, though not so stated in the claim.</p> <p>Practice, C. P. — Parties—Decedent’s estate as defendant.</p> <p>3. Whether a tenant in remainder has ratified or repudiated a contract for repairs and improvements to buildings, made by the life-tenant, is a question for the jury.</p> <p>4. An estate is not an entity, and, on the trial of a scire facias on a mechanic’s lien against the estate of a former owner and others, a verdict against the estate is erroneous.</p>

<p>Costs — Surveys and draft.</p> <p>A bill for cost of surveys and drafts cannot properly be taxed against a losing party as part of the costs in a suit involving a boundary-line between two tracts of land.</p>

<p>Trespass — Posted property — Joint action — Several defendants — Act of April 14, 1905.</p> <p>1. Where an offence for which a fine or penalty may he imposed is a violation of an act of assembly, the action must be brought in the name of the Commonwealth. This is so, even though part or all of the money recovered must be paid to the informer or a municipality.</p> <p>2. Nothing can'be left to inference in a proceeding under the Act of April 14, 1905, P. L. 169, against defendants charged with trespassing upon lands posted as private property. When two or more persons are made defendants in a joint action, the testimony must not only clearly establish a trespass, but must also show that the defendants acted together or in concert.</p>