Imagens da página
PDF
ePub
[graphic]

- - - A disposition for temporary convenience will five feet wide. At the death of William Black, not have that effect. But when the disposition his said lot, except the part conveyed to Logan, is such that a servitude attaches, plainly visible vested in Robert E. and John Brown. They or notorious, and from the character of which made partition by deeds, and the land embracit may fairly be presumed the owner intended ing the lots now owned by the parties to this it for the permanent convenient enjoyınent of action, became vested in John Brown. He conthe property, it passes with a conveyance to the veyed to Helen Alexander on June 3, 1871, property: Phillips v. Phillips, 12 Wright, 178. and to John Montgomery, under whom Harris

"Although there was no plot of the alley on claims, on the 5th of the same month; the south record, and no reference to it in her deed, yet end of Mrs. Alexander's lot abuts on the Harris Mrs. Alexander had notice from the condition lot. When Mrs. Alexander bought, the line was of the properties at the time she purchased, ten feet south of her coal-shed and fence; and enough to put her on inquiry, when she could John Brown lad as good right to sell the part have learned the facts in the case. In Overdery south of the shed and fence as north. Had Montv. Updegraff, 19 P. F. Smith, 110, a case much gomery inquired when he bought, he would like the present, it was said by WILLIAMS, J., have learned that Mrs. Alexander's title was 'the alley was plainly to be seen on the ground, not subject to a right of way over either five feet and its use by the occupants of the adjoining or ten feet of her land. No survey or plan reclot was indicated by the gate in the partition ognizing a private alley was ever made; nor fence, which opened into the alley. This was was an alley or right of way granted or reserved sufficient to put him upon inquiry as to their in any deed. right to the alley.' In that case there was a There has been no controversy respecting the reservation of the right of way at the time of legal principles involved. These are well stated sale, but its validity was disputed, and the pur- in the master's report, and also in the opinion chaser of the servient property had no notice of of the court. In both the testimony has been it. But it was held that was immaterial. 'If reviewed at length, and it need not again be there had been no express reservation, con- remarked in detail. Upon the controlling questinues the opinion, 'of the right to use the alley, tion of fact, we are of opinion that the master's *** the latter would have taken it subject to conclusion was right, namely, that the evidence the servitude imposed upon it by the decedent does not warrant a finding that there was an for the use and benefit of the occupants of the implied reservation of a right of way in John adjoining lot. It was a continuous and appar- Black, his heirs and assigns, over the land he ent easement, and the law is well settled that, | conveyed to Helen Alexander. in such a case, the purchaser, whether at private Decree reversed and bill dismissed, costs to be or judicial sale, takes the property subject to the paid by the appellee. easement.'

The exceptions to the master's report are waTSON. MALONE & SON v. THE CITY OF sustained, and decree ordered in favor of plain

PHILADELPHIA. tiff to be drawn up by counsel.''

For appellant, Messrs. D. W. Bell and W. D. The city of Philadelphia is not liable to the lessees of Moore.

wbarves, who may be damaged by the filling up the Contra, John F. Edmundson, Esq.

space in front or at the sides of the same by matter dis

charged from culverts, emptying into the River DelaOpinion by TRUNKEY, J. Filed November

ware beyond low water mark, as such lessees have no

title beyond the low water line. 20, 1882. William Black, owning a large lot, built

Error to the Court of Common Pleas, No. 2, thereon four dwelling houses, two fronting on

n of Philadelphia county. Franklin street and two on Evans alley. For a Opinion by TRUNKEY, J. Filed October 2, 1882. number of years the occupants of these houses The Act of February 25, 1861, P. L., 43, authorused in common a piece of land ten feet wide izes the councils of the city of Philadelphia to in the rear of the houses fronting on Franklin continue the culvert intended to drain Cohockstreet. In 1866 said Black conveyed to John sink creek, from Front street into the River Logan the north west corner of his lot, sixteen | Delaware. In 1869 the city entered into a confeet front on Franklin street and fifty-five feet tract for the building of the culvert. It was finon Evans alley. Logan placed bis fence on the ished in 1872, the mouth being at the low water south line of his lot, and from that time the line of the river, at the foot of Laurel street. ground used in common by the tenants of The plaintiffs' wharf, held by lease, is materially the other houses, in the rear of his lot, was but injured by the filling of the dock, on its south

--side and in front of the street, with matter dis- It is the duty of a coroner to hold an inquest charged from the culvert. Upon these facts the super visum corporis, where he has cause to court entered nonsuit which judgment is the suspect the deceased was feloniously destroyed : specification of error.

County of Northampton v. Innes, 2 Casey, 156 ; The plaintiffs' title to the land does not extend / or when his death was caused by violence: beyond the low water line. Outside that line Commonwealth v. Harman, 1 Barr, 269. Whenhis right is subject to the control of the Com- I ever he holds one the presumption is that he monwealth under her laws. Veither allegation acted in good faith and on sufficient cause. nor proof shows want of care or skill in the con- | The question now presented is, whether, in a struction of the culvert; nor that it drains a suit by him for his services, that presumption larger district than was contemplated by the is conclusive against the county, or may it be statute; nor that it casts any substance on the overthrown by evidence. plaintiffs' land. The alleged nuisance is in the Here the offers were to prove by several witriver, where the title is in the Commonwealth, nesses, in substance, that, in holding this inand where the statute authorized the city to quest, the coroner did not act in good faith, but place the mouth of the culvert.

knowingly acted without any sufficient cause The principle is well settled that a municipal or reason ; that Hahn was nearly fourscore years corporation is not liable to an action for couse- old; that he had been ill for some days, and quential damages to private property, unless it attended by Dr. Atlee, a regular practicing phybe given by statute, where the act complained sician of the city of Lancaster; that he died a of was done under a valid Act of the Legislature, natural death in his own house, surrounded by and there has been no want of reasonable care, his family; that his death was a natural one; or of reasonable skill in the execution of the that there was nothing suspicious, sudden or power, although the same act done without extraordinary connected with it, and that all legislative sanction, would be actionable: Dill. these facts were communicated to the coroner on Mun. Corp., % 781; O'Connor v. Pittsburgh before he summoned the inquest. R., 6 Harris, 187; Allentown v. Kramer, 23 P. The learned juulge thought, inasmuch as the F. Smith, 406. Nothing appears in the evidence office of coroner is a judicial office, and the holdto take this case out of the operation of that ing of an inquest a judicial inquiry, therefore principle.

Judgment affirmed. this evidence was inadmissible. The duty of a For plaintiff's in error, Messi's. John R. Read coroner to hold an inquest rests on sound reaand Silas W. Pettit.

son. On that reason which is the life of the Contra, C. E. Morgan, Jr., Assistent City So

law. It is not a power to be exercised caprilicitor, and Wm. Nelson West, City Solicitor.

ciously and arbitrarily, against all reason. The

object of an inquest is to seek information, and THE COUNTY OF LANCASTER v. MISHLER.

| obtain and secure evidence, in case of death by

violence or other undue means. If there be A coroner acts in a judicial capacity in holding an in

reasonable ground to suspect it was so caused, quest, and his findings cannot be questioned as to it beconies the duty of the coroner to act. If he regularity in a collateral proceeding.

has no ground for suspecting that the death was A coroner is not warranted in holding an inquest, unless

not a natural one, it is a perversion of the whole he has ground for suspecting that the death was caused

spirit of the law to compel the county to pay by violence or other undue means. Liability of counties for the fees of coroners.

him for such services. In this case the inquest

found the decedent came to his death “from a Error to the Court of Common Pleas of Lan

paralytic stroke." Nay, more, if under the caster county.

facts offered in evidence, a coroner may hold Opinion by MERCUR, J. Filed October 4, 1882. an inquest, he may, in his discretion, at the

This is a suit by the coroner against the county expense of the county, order a post mortem exfor his fees and costs in holding an inquest on amination, whereby those bound to the deceased the body of one John Philip Hahn.

by the nearest and most tender ties may have In holding an inquiest the coroner acts in a their feelings lacerated in every case of natural judicial capacity. If he has jurisdiction in the death. The idea is preposterous and abhorrent particular case, and makes a suflicient record of to all the finer emotions of human nature. It the inquest, the regularity of the finding campot was error to reject the evidence. If he had be impeached in a collateral proceeding. We suficient cause to justify his action he may still see no such defect in this record, nor in the show it. If he had not, there is no good reason manner in which it was kept, as to prevent its why the county should pay for unnecessary being admitted in evidence.

l and meddlesome services. The county was no

[graphic]

party to the inquest, and this is the first oppor- ness then before the court or demanding its imtunity it has had of being heard.

mediate attention. And this is applicable to The other specifications are not sustained. attorneys of the court, having no immediate

Judgment reversed and venire facias de novo business with the court, as to other persons. awarded.

These remarks are induced by a circumstance For plaintiff in error, Me8878. J. Hay Brown which occurred at the trial of the recent case of and Hugh R. Fulton.

Keyser v. Forepaugh, before me. The courtContra, J. W. Johnson, Esq.

room was very crowded, and a member of the

Bar went to the door for admission of members Court of Common Pleas, No. 1, of the Bar, and, finding it fastened, went to the

door for the admission of suitors, witnesses and Philadelphia County.

| the general public. He was informed there ALL COURTS SHALL BE OPEN. that the court was full, and that there was no

room for his admission. He avers that there Rights of attorneys and others to enter court.

was room for him, and that he bad business Opinion by PEIRCE, J. Filed March 17, 1883. with one of the counsel then engaged in trying

The Constitution of Pennsylvania, Article I, the case. He told the officer in cbarge of the Section 11, declares: All courts shall be open, door that he was a member of the Bar, and inand every man, for an injury done him in his sisted on going in. The officer told bim he lands, goods, person or reputation, shall have could not go in; that there was no room there, remedy by due course of law, and right and jus and to go to the door for the admission of memtice administered without sale, denial or delay. bers of the Bar. This he did not do, and at

The meaning of the words "all courts shall tempted to go in against the will of the officer. be open," used in the Constitution of the Com- This the officer resisted, and used sufficient monwealth, is that all courts shall be open for force to put him out. He afterward went iu at the administration of law, right and justice, in the door for the admission of the members of controversies between suitors, as matter of right, I the Bar. and not as of grace or favor. It involves, of! There are differences of statement as to what course, the right of ingress and egress to and occurred between the member of the Bar and from the place where the court is held, to suitors, the officer; but the above is a substantial statejurors, witnesses and every person having busi- ment of the occurrence. ness with the court. Also to all officers of the This court requires not only a faithful, but a court, especially those who have immediate courteous discharge of the duties of its officers business with the court, as attorneys, etc. The to all persons having business with the court, general public also have the right of admission members of the Bar, suitors, witnesses, jurors to the court, as they are largely interested in and the public; and any complaint made against the public administration of law and justice. | them will always receive the prompt attention But all these rights are subservient to the or- of the court. But the members of the Bar, so derly and peaceful administration of law, with- | far as relates to their own conduct, are equally out which its administration would be im- bound to preserve the peace of the court as the possible and the courts would be brought into officers appointed for that purpose. And when, contempt. Therefore they are armed with the in this instance, the member of the Bar was repower to preserve order, and to summarily fused admittance by the officer, his course was punish as contempts all breaches of the peace to bring the matter to the attention of the judge committed in their presence. Aud to aid the at the first opportunity, and not to attempt to court in preserving order and for other purposes, force his way into the court-room against the officers are appointed whose duty is to see that will of the officer. To do this was to endanger there are no obstructions to free transit, the the peace of the court, and to bring the court orderly conduct of persons in the court-room, and its authority entrusted to its officers into and to aid in the general business of the court. contempt. But it is a mistake to suppose that when a court- For any improper or uingentlemanly language room is so croweded that other persons cannot used by the officer, and for refusing to admit be admitted without producing disorder and the complainant to the court-room, if there was inconvenience to those already in the court room for him, both of which the officer denies, room, that they have a right to enter without he would be justly censurable and punishable; regard to the rights of others and the peaceful but redress in the first instance should have administration of the law, unless they enter for been sought from the court, and not by act of purposes immediately connected with the busi- | the party,

Pittsburgh Legal Journal.

lease: and a sheriff's sale under said mortgage does not

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

of the mortgage, judgment and proceedings

thereon, under which the plaintiff in error deESTABLISHED 1853.

fended his possession of the premises in conE. Y. BRECK, : : : : Editor. troversy. V.S., Vol. XIII. !

In June, 1876, Mrs. Erwin, the beneficial de0, S., Vol. XXX. .

No. 38.

fendant in error, united with her then husband,
PITTSBURGH, PA., MAY 2, 1883.

Francis L. Johnston, in executing a mortgage
of a leasehold interest she then had in certain

premises described in the mortgage.
Supreme Court, Penn'a.

As recited in the mortgage, the lease com

menced in 1867, and expired January 1, 1877, DORIS V. ERWIN and WIFE.

before the mortgage was recorded, and prior

to the commencement of proceedings thereon. The lien of a mortgage of a leasehold does not extend to an after-acquired leasehold of the same parties in the

The lease itself contained no covenant or agreesame premises, which is not a renewal of the former ment for the renewal or extension of the same,

nor was it shown that the lessee had any right divest the interest under the second lease. A seme covert in Pennsylvania is not enabled to convey

whatever, legal or equitable, to demand either; or encumber real estate she may acquire by future pur but, at the expiration of the term, she procured chase, but in which she has no present interest what a second lease for sixteen years from that date, ever; nor is she empowered to enter into any contract

on terms and conditions essentially different in the nature of a covenant to stand seized or to convey

from those of the first. There is nothing in the an interest in realty to be acquired by purchase in futuro.

new lease to indicate that it was a renewal of

the former one, or that it had any connection Error to the Court of Common Pleas, No. 2,

therewith. Nor did it appear, as the learned of Allegheny county. Ejectment in the court below by Erwin and

judge says, that it had any connection with the wife, in right of said wife, against Michael Doris

mortgage, except that a copy (apparently landand Joseph Rupert, terre-tenant. Verdiet for

lord's copy) is recorded on the same day and in

the same book with the mortgage. plaintiffs.

The only estate or interest the beneficial deMrs. Erwin (then Johnston), being in possession of the premises in question as tenant under |

fendant had in the premises when she executed a lease to her dated September 30, 1867, and ex

the mortgage was the leasehold first above men

tioned. After accurately describing the lease, piring on January 1, 1877, executed, with her husband, a mortgage on the said leasehold prem

and reciting that it expired January 1, 1877, the

mortgage contains the following clause: “And ises in June, 1876, to John Doris. Jom Doris

also all the right, title, interest, claim and debeing dead, his administratrix sued out a scire

mand of same lessee of, in, to and out of said facias on the mortgage in December, 1978, on

premises, accruing or to accrue from a renewal which judgment was obtained in favor of plain

of said lease." It is this clause alone that has tifts on December 13, 1878. Upon levari facias the mortgaged premises were sold to Ellen Doris,

given rise to the contention of the plaintiff in

error that the mortgage was a valid pledge of who, the premises being vacant, took possession

the second as well as of the first lease. of the same, and subsequently sold her interest to Michael Doris, defendant below.

In December, 1878, a scire facias, in which no On December 30, 1876, Mrs. Erwin had pro

mention is made of the new lease, was issued cured a new lease of the said premises of that

and prosecuted to judgment, execution and sale date, and running to January 1, 1893.

of the premises. The plaintiff in error, as alThe court below held, on point reserved, that

ienee of the purchaser at sheriff's sale, obtained the lien of the mortgage did not extend to this

possession of the leasehold premises, and claims

to hold the same by virtue of the leases, mortlatter after-acquired leasehold, and entered judyment for plaintiffs below.

gages and the proceedings thereon. The first

lease, as we have seen, expired before the scire For opinion in court below see 30 PITTSBURGII LEGAL JOURNAL, 8.

facias issued, and of course he cannot hold unFor plaintiff in error, Messrs. ('. ('. Taylor and

| der it alone; nor can he successfully defend his John Coyle.

possession under the second lease, unless the Contra, J. H. White, Esq.

interest of the mortgagor therein was divested

by the sheriff's sale. Opinion by STERRETT, J. Filed November The judgment in the scire facias was conclu20, 1882.

sive between the parties as to the amount of the The question in this case is as to the effect debt intended to be secured by the mortgage,

1

and that the interest of the mortgagor, at the fairly be construed to authorize such contracts. date of the mortgage, should be taken in execu- As to all such acts their common law disability tion for the payment thereof. As has been ob- still exists.

Judgment affirmed. served, the only interest she had at that time was the unexpired residue of the term under / KITCHEN & DICK v. SMITH & SNOOKS. the first lease, which ended January 1, 1877.

When a private writing is not directly in issue, but The judgment also cured all formal defects and comes incidentally in question, its execution may be concluded all defenses, except, perhaps, that proved by any competent testimony, without calling arising from the common law disability of the the subscribing witness. feme covert mortgagor to pledge a leasehold in

Error to the Court of Common Pleas of Clarion terest which she did not then own, but might county. thereafter acquire; and it would have been con- Opinion by TRUNKEY, J. Filed December clusive as to that also if the record had not | 30, 1882. shown that she was a feme covert, and, as such, Assuming that the execution of the lease was executed the mortgage. If she had no power to not properly proved, and that, if proved, it convey or encumber that which she did not should have been received as evidence of the own-that in which she had no interest, legal or covenants of both lessor and lessee, the error in equitable, vested or contingent-in other words, admitting it was harmless. In adducing the if her pledge of a chattel real, to be thereafter testimony that followed, in the point submitted acquired, was void, the record was notice of her and in the charge of the court, the lease was disability to the purchaser at sheriff's sale and treated as in evidence for each party for all purthose claiming under her. The learned presi- | poses when pertinent to the issue; and in this dent of the Common Pleas held that, by reason court it was virtually conceded the lease was of her inability to pledge that in which she had genuine. The qualified admission was in reno present interest, coupled with record notice sponse to the defendants' objection. They could of that fact to the defendant below, the subse- have removed the qualification by withdrawing quently acquired leasehold was unaffected by opposition, and, as to that, they have no ground the mortgage and proceedings thereon. In this for complaint. But the lease was admissible we think he was right. At common law a feme upon the testimony of Whitehill. When a covert is disabled to dispose of or encumber her private writing is not directly in issue, but real estate, or to make any other contract obli- comes incidentally in question, its execution gatory on herself, because, in law, she, being may be proved by any competent testimony, one with her husband, has no separate existence, without calling the subscribing witness. The and also because of his supposed constraining plaintiffs' claim was the amount of taxes they influence. In England this disability was at had been compelled to pay, although assessed first overcome by the device of fine and common on land owned by defendants. One of the inrecovery. Afterwards a statutory mode of con- cidents in their case was the relationship of veyance, similar to ours, was adopted. Our Act landlord and tenant. This was not proved by of 1770, Purd., 460, pl. 13, prescribes the manner the lease alone, but by that and other evidence. in which husband and wife may “dispose of They did not need the lease to show the land and convey the estate of the wife, or her right, owners' liabilities for the taxes, for the landlord of, in or to any lands, tenements or heredita- | is liable, unless the lease obligates the tenant to ments whatsoever." The object of this and pay them. Their claim was founded upon a subsequent legislation on the subject was to re- payment of taxes which the defendants ought lieve married women from the disability inci- / to have paid, and any fact showing it was not dent to coverture, in so far only as was necessary a voluntarily payment was an incident. The to enable them to dispose of, convey or encum- lease was admitted on the testimony of the lessor, ber any existing interest in realty, whether it and no question is raised respecting the suffibe an interest in possession, reversion or re- ciency of the certificate of probate by the submainder. It was never intended to enable them scribing witness. to convey or encumber real estate they may It appears by the record that all the testimony acquire by future purchase, but in which they | which was received was submitted as if there have no present interest whatever; nor was it had been no questions reserved respecting its designed to empower them to enter into any | admissibility. Practicaily, that disposed of the contract in the nature of a covenant to stand reservations. After the verdict, to have ruled seized, or to convey an interest in realty to be any testimony incompetent would have called acquired by purchase in futuro. There is noth- for a new trial. Had any of the testimony been ing in our legislation on the subject that can incompetent, and of such a character as tended

-

M

« AnteriorContinuar »