A garnishee in an attachment execution having ap peared and joined issue, cannot after verdict against him, except to the validity of the service of the writ upon him.....
Service of process upon life insurance companies under Acts of April 24, 1857, and April 8, 1868.. PUBLIC ROAD.. Effect of absolute confirmation of plan of laying out..... PAYMENT. Payment to one whose authority is, at best, but prima facie, assumes all risks and consequences of the failure of that assumption, otherwise if payment be compelled by a court of competent jurisdiction...... Payment to a father as guardian, of money belonging to his infant, who was not duly appointed as such, but who was recognized by the Orphans' Court as such, was considered as good after thirty years.... QUESTION OF LAW OR FACT. Whether or not a fence enclosing a barnyard was sufficient to keep a stallion from breaking out, one of fact..... Whether exempted property of an assignor for benefit of creditors, who has presented same to his wife, is her own separate estate, one of fact.. The question of fact to be illustrated by testimony was whether risk, which occasioned injury, was of an ex- traordinary and unusual character-a risk not ordi- narily incident to employment in which deceased was engaged. In absence of testimony to this effect, the case should not have been submitted to the jury......... Where lien of judgment is in question, and it appears that it is entered in name by which debtor is known, though it be not his Christian name, and he be also known by latter, and that he signed his name in both modes is one of fact..
What is, and what is not negligence in a particular case, is always a question for jury when measure of duty is ordinary and reasonable care.... Wherever death is caused by use of a deadly weapon, it must be for the jury to say, under the evidence, whether there existed "a willful, deliberate and pre- meditated" intention to take the life of deceased... Ordinarily the assignment of a judgment carries with it the right to proceed with any outstanding process issued thereon; and it is a question for the jury to de- termine from the evidence and the nature of the trans- action whether such was the intention of the parties at the time the assignment was made.. QUO WARRANTO. To oust from office councilmen who are alleged to have forfeited their membership by violation of law, will not be issued on petition of tax- payers who have no interest in the question, except that which is common to the other citizens of the borough......
Will not be issued at instance of private relator for the purpose of determining existence of public corpora- tion, nor to dissolve such a corporation, nor to deter- mine the right of a person to hold an office, or his usurpation thereof, unless relator himself has a claim thereto....
Where a private relator institutes proceedings to remove the respondent from a corporate office, in order that he himself may enjoy and exercise the rights and duties of said office, he must show,-first, that he has title to the office; second, that the respondent has been guilty of usurping the exercise of its duties and privileges, or at least some of them.... Where proceedings in quo warranto are commenced for the protection of the public against an illegal usurpa- tion of a corporate franchise, the State, through the attorney-general, being the prosecutor, it rests with the respondent to show title, and if the title be incom- plete the State is entitled to judgment.... RAILROADS. See Negligence-Courts. What is contributory when a child is permitted to pass over and stand upon crossing.....
Power to construct right of way through burial ground... 22 The location of railroad on public road is an appropria- tion of latter, and extension of a city so as to include such public road, subsequent to location but prior to construction, does not so change character of the road as to withdraw it from operation of 13th section of Act of February 19, 1849, requiring railroad com- panies to reconstruct any portion of a turnpike or pub- lic road, site of which they have found it necessary to change.. When railroad company, subject to provisions of above act, fails to comply with 13th section thereof, the mu- nicipality may reconstruct road taken and recover cost thereof from railroad company, or may, by mandamus, compel the company to reconstruct, but failure to re- construct concerns the public. It is therefore an injury to Commonwealth, to which belongs franchise of every highway, and for such general injury to public an indictment may be sustained.
The purchasing of a ticket from a scalper and using the same, is not an offense under Act of May 6, 1863, and
Marble counter slabs, in a store, where the counter is complete without them, and weathers vanes attached to the roof of a house, are not parts of the realty, and hence do not pass to the sheriff's vendee of the land..... 17 When lien of judgment for purchase money cannot be impeached....
There is no obligation upon the owner of a vacant lot or unused brick yard to fence it, so far as his duty to passers-by is concerned....
Charged with legacies, where there is a general residuary clause in a will......
Inferential dedication for school purposes, how limited.. 21 Tenants for life are entitled to have their shares set apart in land, if it can be done without prejudice......... When conversion of worked by terms of a will.. RECORDING ACTS. See Husband and Wife. REMOVAL OF CAUSES. See Courts. REPLEVIN. See Vendor and Purchaser. An assignment of a bill of sale of an animal pledged for the payment of a debt, passes a sufficient title to the assignee to maintain an action in replevin against an owner who stealthily takes it out of his possession.. 225 Replevin for articles severed from realty will not lie by one who has neither possession nor right of possession 381 of articles in question...... RESERVATIONS IN DEED. Grantor of land ex- cepted and reserved from his grant, inter alia, all minerals." Held, that exception did not include petroleum or mineral oil... 465 RIPARIAN OWNER. A party who is the owner of land adjoining a pond used as a reservoir by a water company under the right of eminent domain, cannot be considered as a riparian owner in the proper sense of the term...
RIGHT OF WAY. See Injunction. Where a right of way is granted by deed, the owner has a right to its enforcement in the mode and form stipu- lated by the deed, and the fact that such enjoyment is prevented is sufficient ground for interference by in- junction....
A right of way appurtenant to a tract of land, whose use is not in way or manner qualified or restricted, may be used by not only the party in whom such right is vested, but also by all to whom he may grant permis- sion for its use..
Those who are entitled to the use of the dominant tene- ment cannot be regarded as trespassers.. RURAL PROPERTY. Where on scire facias on mu- nicipal claim for paying in Philadelphia, defense was charge had been made according to frontage rule of assessment, whereas property is rural, classification of property by Board of Revision of Taxes for purposes of taxation is not conclusive evidence as to its rural character. It is for jury to decide from all evidence in case whether property is rural or not..... 455 SALE OF PERSONAL PROPERTY. Change of location of property is not essentially necessary. If purchase was in good faith and for valuable considera- tion, followed by acts intended to transfer possession as well as title, and vendee assumed such control of property as to reasonably indicate a change of owner- ship, delivery of possession cannot, as matter of law, be held insufficient..
SAVINGS BANK. What was held an investment and not a deposit.......
SCHOOLS. See Burial Grounds.
An alleged dedication of land for educational purposes which can only be inferred from the actual use of a portion of the land for that purpose, must be limited to the ground actually occupied therefor.... By virtue of provisions of Act of June 8, 1881, P. L., it is now unlawful to exclude any child from public school nearest to his place of residence on account of color alone.
Where there are in one school district two school houses, one for white children and one for colored, colored hild living near former school cannot be excluded therefrom on account of his race alone....
SEDUCTION. See Evidence.
The "good repute of the woman alleged to be seduced is an essential ingredient of the offense, and must not only be averred in the indictment but proven affirma- tively by the Commonwealth by such evidence as will justify the submission of the question to the jury. The ordinary presumption of her good reputation for chastity is insufficient..
SET OFF. An attachment under the Act of 17th March, 1869, where bond was filed, was dissolved; plaintiff then brought assumpsit, in which defendant offered in evidence as set off, the bond and proof of damages re- sulting from the attachment. Held, that such dam- ages arose ex-contractu, and the evidence was admis- sible... Damages for which an action sounding in tort might be maintained may be set off in an action on a promissory note......
SEQUESTRATION. See Corporations. SHARSWOOD, CHIEF JUSTICE. Complimen- tary notice of Albany Law Journal on his retirement from the bench..
Tribute by Philadelphia Bar to.......... Death notice of..
SHERIFF. It is the duty of the sheriff to allot, where the jury has parted decedent's real estate, so as to cor- respond with the parties in interest.. Some of personal property that had been levied upon and advertised for sale was loaned by sheriff to third party; sheriff told the bidder at sheriff's sale that property loaned by him was to be sold with the other property in his actual possession. Held, that bidder could recover from the sheriff...
SHERIFF'S SALE. If a sheriff's sale is made with the intention of hindering, delaying or defeating cred- itors, and the purchaser has knowledge of such, it is null and void, although the full value may be paid...... 257 But, a mere fraudulent intent or effort, if not successful, is not sufficient, nor is the mere fact that the property was purchased at less than its value.... A sheriff's levy described the premises as "having erected thereon a large two-story brick building, known as the Corry Wooden-ware Works, with ma- chinery for manufacturing tubs, pails, etc., large boilers and engine, pulleys, shafting, belting," etc. Held, that the levy embraced two patented machines, although loose and portable, used in the works in the ordinary course of the manufacture of tubs and pails, to paint or grain designs thereon and thus finish them for the market...
Market street runs north to and at right angles with Stanton avenue and ends there. A lot situated on west side of Market street forty feet south of Stanton avenue is described in purchase money mortgage as "beginning on westwardly side of Market street, at a point distant forty feet from northwestwardly corner of Market street and Stanton avenue, thence south- wardly," etc., correctly describing lot in other respects, and stating that it is same lot conveyed to mortgagor by mortgagee by deed of even date, and that mortgage is to secure purchase money thereof. Held, that a sheriff's sale on this mortgage gave a good title....
SHERIFF'S INTERPLEADER. Claimant filed an approved bond, but no narr. The court rule made this neglect equal to abandonment. Subsequently un- der an al. fi. fa., another levy was made. Claimant's demand for another issue was refused. The al. fi. fa. was set aside, but vend-ex., which had been issued was sustained.... SHERIFF'S SALE. See Amendment-Municipal Lien-See Real Estate-Errors and Appeals. Validity of title of vendee, without notice of parol mort- gage, under..
Sale on municipal lien, in Pittsburgh, under Act of Janu- ary 6, 1864, divests prior fixed on the property sold........ 199 Where such sale was procured by A. for the purpose of divesting a charge on the land for the support of an imbecile, and the vendee purchasing for A., to whom he subsequently conveyed. Held, that the land in the hands of vendee was not subject to the charge...... Execution creditors purchasing real estate at judicial sale take the same title thereto as would be taken by a stranger; and the amount of the bid is the sole meas- ure of credit on the claim.....
The law presumes that a public judicial sale is made in good faith. This presumption stands, unless overthrown by clear and satisfactory evidence of fraud, or unfair
Duty of judgment creditors at sheriff's sales. Right of plaintiff to adjourn sheriff's sales... STARE DECISES. A party who selects a form of pro- ceeding which a higher court cannot review, is con- cluded by the decision...... STATUTES-CONSTRUCTION OF. A general statute without negative words cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. To effect such re- sult the repugnancy must be strong or the inconsistency irreconcilable.
When a statute creates a right and provides a particular mode by which it may be vindicated, no remedy other than that afforded by the statute can be enforced........ 212 A supplement to an act of incorporation is a mere license of the State, and may be revoked by the State at any time. It is not a contract....
SUBROGATION. See Surety.
SUICIDE. Attempt at, what effect, in criminal cases. See Evidence.
STATUTE OF FRAUDS. Where a vendee of land, under articles of agreement, contracts with third party, that the title shall be conveyed to such third party upon consideration that the vendee shall share in the profits of a resale, this is not a contract for an interest in land within the meaning of the Statute of Frauds........
Possession to which is added permanent improvements of great value is such a part performance as will take parol contracts for the sale of land out of the Statute of Frauds..
SUPREME COURT. Order transferring certain count- ies from Middle and Western Districts to Eastern District... SUPREME COURT DECISIONS. Announcement of...
SUMMARY CONVICTION. See Crimes.
Mayor of the City of Pittsburgh has no jurisdiction by, for selling liquor on Sunday.
Record in summary conviction must contain finding that special act has been done by defendant, and describe and define it in such way as to individuate it, and show that it falls within an unlawful class of acts............ SURETY. On bond of voluntary assignee, when liable to distributees under auditor's report.-See BONDS....
In an action against a surety, a judgment recovered against the principal debtor is, in the absence of fraud or collusion, conclusive as to the amount of the indebt- edness as against the surety....... SURETY. See Bonds.
Rights of bankrupts, as against the assignee, to appro- priate collaterals, and proper method to contest same, Where the estate of a deceased surety in a judgment is compelled to pay the amount thereof, the adminis trator of such deceased surety is entitled in his official capacity to be subrogated to the rights of the plain- tiff in the judgment....
A. had a judgment against B. and against C. as surety. He revived it by amicable writ of scire facias, to which C., surety, was party. It was not revived against terre-tenant, of which fact C., surety, had knowledge. Held, that failure to revive against terre-tenant did not relieve the surety. Mere forbearance, however prejudicial to surety, will not discharge him. This rule applies where creditor suffers judgment to lose its lien for want of revival against principal debtor, and thereby subsequent creditors are enabled to take land..
TAX SALES. See Defenses.
The owners of timber land sold at a tax sale have, prior to the execution of the bond for the balance of the purchase money, the full right of enjoyment of the land and the timber...
On sale of unseated lands bid in by county commis- sioners at sale for taxes, in accordance with provisions of Act of 1824, when proceeds of such commissioners' sale are not sufficient to pay both county and town- ship taxes, township is entitled to its proportion from amount realized..
TAXES AND TAXATION. See Constitutional Law
Where there is a compulsion actual, present, potential in inducing the payment by force of process available for instant seizure of person or property, and the de- mand is really illegal, there the party by giving no- tice of the illegality and his involuntary payment can recover back the money so paid.... 128, 213 A protest is of no avail except in the case of payment made under duress and coercion, and then only as evidence tending to show that the alleged payment was the result of duress
A payment of taxes is not compulsory because made under a threat, expressed or implied, that the legal remedies for its collection will be resorted to..
213 A voluntary payment of money, under a protest, to pre- vent the sale of lands, under a threat to sell the same
TENANTS FOR LIFE. See Partition.
Not necessary to serve, in scire facias on mortgage.. TICKET SCALPING. See Rail Roads. TIMBER. It being by statute (Act of May 4, 1869), un- lawful for owner of undivided interest in timber land to cut down or remove from land any timber trees, without having first obtained consent of his co-ten- ants and as against his non-consenting co-tenants his sale of lumber manufactured out of timber so cut or removed passing no title to vendee: Held, in an action of trover against such vendee by non-consent- ing part owner, that plaintiff was entitled to re- cover value of his interest in lumber, as of date of de- fendant's conversion, with no allowance for expense and labor of trespassing vendor. Timber unlawfully cut down by owner of undivided interest in land without consent of his co-tenant and still lying upon land at time of marshal's sale of un- divided interest in land of non-consenting owner who had not elected to treat felled timber as personalty, remains part of freehold, and interest of defendant in execution therein passes to marshal's vendee as realty.......
TITLE. As to quieting title of heirs and devisees, un- der Act of February 24, 1834, as against creditors of decedent.
When one purchases land with knowledge of secret equity in third person, he may perfect his title by outstanding liens, and his knowledge does not affect the title derived from a sale upon the liens purchased, 12 One who purchases land at assignee's sale, subject to existing mortgages, is not bound to pay them off un- less he expressly or by implication agrees to do so, and may secure his own title by purchasing them and proceeding to perfect his title under them..... Where holder of equitable, borrows a sum of money from third party, portion of which is applied on ac. count of purchase money, and holder of legal title executes to lender a deed which is not recorded, it being understood that the property is conveyed simply as security, transaction will be held to constitute a parol mortgage from borrower to lender, which will be ineffectual as against the title acquired by a vendee of the land at sheriff's sale under a subsequent judgment against the borrower. Where the amount of loan has been left by borrower with lender, and subsequently purchase money for the land is paid directly from said amount to vendor, vendee at sheriff's sale will not be compelled to ten- der amount so paid out to lender before he is entitled to recover possession...
When taken in husband's name, but paid for with wife's money, subject to resulting trust in favor of latter....
When at time of parol contract for purchase of land vendor held deeds for the land with name of grantee in blank, which fact was unknown to plaintiff, vendor did not have a good and perfect title as represented... 148 TRESPASS. See Damages -Right of Way. A child can be treated as a trespasser...... TRUSTS AND TRUSTEES. Where wife's money goes for purchase of land, and, at time of sale, she de- mands that deed be made to her, but is overruled by her husband, who takes title himself, land is sub- ject to a resulting trust in favor of wife. By an Or- phans' Court sale whereat purchaser takes land free from all liens, etc., resulting trust is transferred to fund which is awarded to wife in preference to judg ment creditors of husband.... Negligence of, in making investments
March 31, 1860, both to forfeiture of their offices and to punishment, if they become interested, directly or indirectly, by suretyship or otherwise, in matters over which they have no supervision as such council-
It is not necessary that conviction be first had of the misdemeanor to give the court jurisdiction to declare the forfeiture..... TOWNSHIP. Township road having been taken and condemned by railway company, a dangerous road on side of railroad was used as township road for num- ber of years. Township for a time protected a nar- row portion at edge of embankment by guards, but finally permitted the guards to fall into decay........... 491 TROVER. Trover will not lie against the owner of freehold, who has taken possession of premises, for 215 fixtures attached by a tenant... TURNPIKE COMPANY. When, cannot exact toll, 421 TURNPIKE ROAD. Where parties own lots front- ing on turnpike road which is vacated, and new street run at an angle to course of old turnpike. Held, that the lines of lots in dispute should be the continua. tion of old lines at right angles with the vacated road, 343 ULTRA VIRES. Such contract, if fully executed, except payment of consideration money, cannot be avoided by corporation....
The defense of ultra vires is never allowed out of re- gard for the defendant, but rests solely upon public policy.....
VOLUNTARY PAYMENT. See Taxation. VENDOR AND PURCHASER.
An assignee's sale was made of land on certain terms. The vendee neglected and refused to comply with said terms; the assignee then notified the vendee he would apply at the next term of court for an order to sell, under the Act of 17th February, 1865, and the sale was subsequently made, but on different terms and for a lower price per acre. Held, that the vendee could not be held for the difference in price by reason of the terms of payment being different. After contract for sale of land had been executed, and before any money had become due thereunder, land in question was seized and sold by sheriff, upon judg. ment obtained against vendor prior to the contract of sale. The amount realized at sheriff's sale was more than sufficient to pay all judgments against vendor, and more than whole sum vendee had agreed to pay for land. Both vendor and vendee claimed excess. Held, that excess was rightly awarded to vendee...... 368 Vendee of land by articles of agreement is owner, sub- ject to the vendor's lien for unpaid purchase money, and vendor has no such title thereto as will support an action of replevin for house which is being removed from land by one to whom the vendee has sold it...... 381 If, however, such sale by the vendee were for the pur- pose of hindering and delaying vendor from recovering unpaid purchase money, evidence would be admis sible to show that vendor had purchased house in question under fieri facias on judgment entered by him against vendee, in order thereby to show title to chattel which would support the replevin...........
VERDICT. In suit for erection and construction of saw mill, defense being that plaintiff had not completed mill, jury rendered verdict in favor of plaintiff for $248, "and the plaintiff to complete the job according to contract." Held, that such verdict would be set aside, 365 WAIVER. Of condition in policy of insurance, that suit shall not be commenced within ninety days........ 86 WAGES. See Lien.
Where one, not defendant, having any interest in land is induced to confide in verbal promise of another that he will purchase for benefit of former at sheriff's sale, and, in pursuance of this, allows him to become holder of legal title, a subsequent denial by latter is such a fraud as will convert purchaser into a trustee ex maleficio...... TOWNS AND VILLAGES. All questions of fact and of expediency, in a proceeding to incorporate a town or village, are to be determined by the grand jury and Court of Quarter Sessions, and an appeal does not lie from the decree of the court...... 185 Members of town councils are liable, under Act of
WIDOW'S APPRAISEMENT. See Decedents' Es-
Right to, not ousted by subsequent marriage.... WILL. See Devise-Deed-Legacy. What was held to be a deed and not a will.. A. bequeathed portion of his estate to heirs and assigns of his deceased son W. who was indebted to A. Held, that W.'s children took in their own right and not by representation, and that W.'s indebtedness to A. could not be deducted out of their legacies.......
By the residuary clause of A.'s will his estate was di- vided into four equal shares, his widow being one of the residuary legatees. She having refused to take under the will, held, that other residuary legatees were entitled to whole of residue..
Where by terms of, executors are directed to sell realty at their discretion, and may be compelled to sell after certain time, held, that this works a conversion of the real estate....
Where testator gave to his executrix part of his estate, directing her to pay his debts, and then by codicil di- rected her to sell a lot and pay the debts out of the proceeds, which was insufficient for the purpose, she was required to pay the balance of the debts. John Adams by will devised real estate to his wife for life and directed that after her death it should be sold and proceeds divided among his children, and then pro- vided as follows: "It is also my will that no one of husbands or wives of aforesaid children shall have any interest in or control over property hereby bequeathed, but that shares of my said children shall belong to them separately and exclusively, whose receipts therefor shall be deemed and taken as a full discharge to my executors. At testator's death he had two mar- ried daughters. After death of testator's wife, child- ren by writing, in which the husbands of the two mar- ried daughters joined, agreed to accept the land as real estate, and afterwards partition was made and purparts awarded to each. Held, that under this will the interests of married daughters were separate use trust and that upon death of mother interest vested in them under the provisions of will. While it is true that married women could not dispose of or incumber their estate because of trust, yet it does not follow that they may not exercise a power of election which the law recognizes to exist in ordinary legatees to take land itself instead of its product when sold........ Construction of a will-Direction to executors to sell farm after death or marriage of widow works conver- sion of the real estate, and when so qualified, the fol- lowing clause: "I also bequeath to said children farm on which I now reside, subject to estate of my widow in same, etc.," does not operate as devise, but children take as legatees, not as devisees..... Devise to testator's son and son's wife for life, with "re- mainder in fee-simple to his heirs at law in case he should have issue, then said tract of land to revert to heirs at law of my three daughters, A., B. and C. in fee-simple," gives only a joint life-estate to the son and his wife. The failure of issue meant is not an in- definite failure of issue, and rule in Shelley's case does not apply. As soon as son has a child, remainder in fee vests in that child, opening to let in afterborn children. When once vested in such children fee is absolute..
Direction in will that all testator's estate, real and per- sonal, be appraised and sold as soon as it can be done with advantage, and that all the money arising from sale of real estate be equally divided among my child- ren, share and share alike, works a conversion of the real estate which took effect at the death of tes- tator. Provision that any of his sons might, at his op- tion, take farm at appraisement, did not change effect of direction to sell. Were it not for devise over, in case any of devisees died before reaching the age of twenty-one years, and without lawful issue, legacies must be taken as vested. When child, therefore, lived beyond that period, her share became absolute..... 497 A testator devised and bequeathed to his wife the resi- due of his estate in trust to apply the income of the same to herself and to his children living at his death in equal shares, empowering her, at the expiration of seven years from his death, to make partition of his real estate to and among his children (the children of those deceased to take their parent's share), and allot to them their several and respective shares, expressly ordering and declaring that until such partition was made no interest was to vest in any of his children. He also gave his wife such power over the income of the estate that she might retain any child's share until the distribution of the corpus of the estate was made, and then incorporate the same with such child's share. Held, that no child had any vested interest in the testa- tor's estate until partition was made, and that any in- come retained became a part of the estate, and did not vest until the share of which it formed a part was allotted....
Testator made will dated November 20, 1871. On Jan- uary 13, 1873, he executed another, and on January 1873, he executed a codicil to the last will, wherein he referred to each distinctly, and declared that if he should die before a certain date the earlier will was to be taken as his last will and testament. He died be- fore the date he had provided for. Held, that as there was no intimation that codicil should not take effect, the clear intent was that it should attach itself to
whichever writing became operative, and that it should have full effect...
In proviso to his will testator directs manner in which net share of each child shall be ascertained. After- wards he revokes bequest to R., as contained in two sentences of his will quoted by him in his codicil, but carefully avoids changing or annulling mode in which share of each child is to be ascertained. He then gives the share of his son R. to his son's wife. Held, that share to which R.'s wife was entitled was share which R. would have taken if his wife had been substituted as legatee in his stead....
A man of sound mind and disposing memory is one who has full and intelligent knowledge of act he is engaged in, full knowledge of property he possesses, an intelli- gent perception and understanding of disposition he desires to make of it, and of persons and objects he de- sires shall be recipients of his bounty. It is not neces- sary that he collect all these in one review. If he un- derstands in detail all that he is about, and chooses with understanding and reason between one disposi- tion and another, it is sufficient for the making of a will 405 He directed "that the money coming from R. must be equally divided between all my heirs except B., and her share shall go to M." There were seven children. Held, that this fund was to be divided into seven equal parts, two of which were to be distributed to M. An express and positive direction to pay at a specified period will not be overborne by inference or argument from other parts of the will......
Testator directed that his executors should sell certain real estate, invest the proceeds thereof for the period of twelve years after his decease, and pay over annually to each of his nine grandchildren one-ninth of the in- terest thereof; "or if any of them have died leaving heirs, then pay same to said heirs." 'And at the full expiration of twelve years from the time of my de- cease shall, in like manner, pay over the principal.".... 294 Two of the grandchildren having died before the expira- tion of the twelve years, each leaving a widow and children to survive him; held, that the legacies were contingent and that distribution was to be made to their heirs. Held further, that the word heirs meant the persons entitled to distribution under the intestate act, and that the surviving widows took the one-third of their legacies....
One of the deceased grandchildren left four children to survive him, one of whom subsequently died. Held, that one-sixth part of the contingent legacy be- queathed to his father vested in him so as to be trans- missible to his legal representatives....
Testator devised all his property in trust to pay certain annuities, and after the annuitant's death to pay over the estate to the Pennsylvania Hospital. Held, that although the testator's estate yielded an income large- ly in excess of what was necessary to pay the annuities, the trustees should retain the whole estate, as it was not to be paid over to the hospital by the terms of the will till after the decease of the annuitants... 302
An attempt, in a will, after granting fee simple absolute, to appoint guardian to take charge of property for life of devisee, and to declare property free from liability for debts of owner, is inconsistent with grant..... 403 Especially it cannot be done without use of apt words..... Ib WITNESS. A joint obligor was called to prove the exe- cution of the note, in a suit against his deceased co- obligor. Held, incompetent....
One who is both executor and beneficiary under a will is a competent subscribing witness, and may testify as to the execution of the will upon an issue of devisavit vel non...
One not directly interested in case before court is com- petent witness, although he is directly interested in 441 question involved.....
WHARFAGE. Municipal corporation claiming right to exact wharfage for use of public wharf must show plain legislative grant of franchise; and such au- thority cannot be deduced from powers to lay out, regulate and exercise all needful jurisdiction over roads, streets, lanes and alleys, and to make laws, ordi- nances, by-laws and regulations for good order and government of municipality not repugnant to or in- consistent with laws of the Commonwealth. Borough of Elizabeth has no such riparian proprietorship in wharf at foot of Market street as will sustain its claim to wharfage...... WHARVES. City of Philadelphia is not liable to lessees of wharves, who may be damaged by filling up in front or at sides of same by matter dis-
space from culverts emptying into river Delaware
beyond low water mark, as such lessees have no title beyond low water line.... WORDS-CONSTRUCTION OF. Heirs in an
LOSS OF GOODS BY CARRIERS.
JOHN S. MURRAY, Publisher.
arrived at the defendants' offices, and, at the plaintiff's request was retained there till June, and then delivered to the plaintiff. The plain| tiff afterwards brought an action for £210 damages for the loss of the trunk and injury to its contents. The miscarriage and loss for the time were admitted, as also that some of its contents had been injured in New York, owing to the custom-house officer unpacking the trunk, and negligently and unskillfully repacking it. It was further admitted that certain silk dresses and a sealskin jacket which it contained were articles within the carriers act, that their value exceeded £10, and that no declaration had been
[FROM THE IRISH LAW TIMES.] In the case of Eyre v. Midland Great Western (of Ir.) R. Co., recently decided by HARRISON, J., on appeal, it appeared that a railway passenger, in consequence of the non-arrival of his luggage, had been obliged to purchase various personal necessaries in substitution for those which were detained; but in the award of damages nothing was included for this consequential loss. This rather surprised us at the time, but on inquiry we ascertained that no claim in respect of those articles had been pressed for. We made some researches for authorities on the sub-made. The jury were discharged by consent, ject, but could find none directly in point-the nearest, which, however, are distinguishable, being British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P., 499; 37 L. J. C. P., 235, and Walton v. Fothergill, 9 C. & P., 394, and to those cases we referred accordingly. It is satisfactory that at last a decision rather more in point has been reported which we find in last Saturday's | tained in the trunk. Law Times-Millen v. Brash & Co., 45 L. T. (N. S.), 653. And not only may that case be collated with those already collected in our papers on remoteness of consequential damage, but on several special points in the law of carriers, to which we have previously adverted, it will be found of importance, as, indeed, LOPES, J., indicated.
and all questions of law and fact were left to the decision of LOPES, J., who presided at the trial, the amount of damages, in case the plaintiff was entitled to a verdict, being agreed upon, including a sum of £10 for the repurchase by the plaintiff of certain other articles of clothing in | Rome at enhanced prices, to replace those con
The defense rested on the Carriers Act. It was, in the first place, contended on behalf of the plaintiff, that the act did not apply, because the loss was temporary and not permanent. LOPES, J., however, observed that there was nothing in the act or in the authorities to justify the placing of so narrow a construction on the word "loss,” and, in his opinion, it was immaThe defendants were carriers from London terial whether the loss was temporary or absoto Rome; and on November 13, 1879, the plain- lute, and, not being delivered within a reasontiff's agent delivered to them a trunk to be sent able time, the trunk and its contents were lost by rail from London to Liverpool, and then to the owner within the meaning of the act. shipped in one of Bibbey's steamers for Italy. He cited no decisions on the subject, but the It happened that the defendants had in their reader will do well to refer to Hearn v. London, possession a case of paper goods (Christmas etc., R. Co., 10 Ex., 793; 24 L. J. Ex., 180, holdcards) consigned to Mr. Hamburger, of Newing that "loss" within the act means total loss, York; and by the carelessness of the defend- | and does not apply to protect the company from ants' servants, the trunk belonging to the plain- liability for consequential loss by reason of delay tiff was taken to the Victoria Docks, and shipped in delivery; while in Wallace v. Dublin, etc., as and for Hamburger's case to New York. The R. Co., 8 Ir. L. T. Rep., 163, a plea excusing defendants did not become aware of this mistake delay in delivery upon the ground of a tempotill about the 15th of December following, on rary loss of the goods, while in charge of the dewhich day they wrote to Hamburger, and on fendants, was held a good answer to an action the 19th the trunk arrived in New York. On for not delivering within a reasonable time. In the 11th of March, 1880, the miscarried trunk the next place, the plaintiff contended that the
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