........... 147 ... 227 .. 196 .............. 381 ..... 161 ....... 329 PRACTICE-Continued. upon hini.............. Acts of April 24, 1857, and April 8, 1868.. .................. 316 plan of laying out............ but prima facir, assumes all risks and consequences of considered as good after thirty years...... fence enclosing #barnyard was sufficient to keep a stallion from breaking out, one of fact......................... creditors, who has presented same to his wife, is her case should not have been submitted to the jury........... that it is entered in name by which debtor is known, ............ 157 is always a question for jury when measure of duty is ordinary and reasonable care......... the right to proceed with any outstanding process ............ 289 who are alleged to have forfeited their membership by borough......... purpose of determining existence of public corpora- ................ . 231 the respondent from a corporate office, in order that he or at least some of them..... the protection of the public against an illegal usurpa- plete the State is entitled to judgment........... ..... 286 over and stand upon crossing........... .................. 136 act, fails to comply with 13th section thereof, the mu- ................. 136 RAILROADS-Continued. the company has no right to question persons where and how they procured tickets... years of age, and who was not a passenger........ ........ 155 Corporations. impeached....... unused brick yard to fence it, so far as his duty to passers-by is concerned....... clause in a will....... apart in land, if it can be done without prejudice.......... for the payment of a debt, passes a sufficient title to an owner who stealthily takes it out of his possession.. 225 one who has neither possession nor right of possession of articles in question........... cepted and reserved from his grant, inter alia, "all ............... 465 land adjoining a pond used as a reservoir by a water of the term............. a right to its enforcement in the mode and form stipu- .......... 174 is not in way or manner qualified or restricted, may be 342 Ib nicipal claim for paying in Philadelphia, defense was in case whether property is rural or not......... location of property is not essentially necessary. If be held insufficient....... and not a deposit......... which can only be inferred from the actual use of a to the ground actually occupied therefor.... is now unlawful to exclude any child from public color alone. one for white children and one for colored, colored ..... 382 ............ 165 231 ................. ... 286 ....... 453 3 18 ...... .. 202 ... 127 ..... 267 ... ............. 418 11 ...... SET OFF. An attachment under the Act of 17th March, 1869, where bond was filed, was dissolved; plaintiff .................. 200 note.. tary notice of Albany Laro Journal on his retirement from the bench...... 179 ...... 411 the jury has parted decedent's real estate, so as to cor- 60 could recover from the sheriff........ the intention of hindering, delaying or defeating cred- is not sufficient, nor is the mere fact that the property erected thereon & large two-story brick building, .................... 327 Stanton avenue and ends there. A lot situated on west is to secure purchase money thereof. 333 an approved bond, but no narr. The court rule made 122 Lien-See Real Estate-Errors and Appeals. gage, under..., ary 6, 1864, divests prior fixed on the property sold........ 199 divesting a charge on the land for the support of an hands of vendee was not subject to the charge............... 199 sale take the same title thereto as would be taken by a ................. 243 plaintiff to adjourn sheriff's sales......... ceeding which a higher court cannot review, is con- 163 statute without negative words cannot repeal a previous 119 STATUTES-Continued. than that afforded by the statute can be enforced........ 212 ... 371 See Evidence. under articles of agreement, contracts with third Frauds....... Statute of Frauds........... ......................................... 2 ies from Middle and Western Districts to Eastern ....................... 422 ....63, 76, 88 for selling liquor on Sunday.......... special act has been done by defendant, and describe that it falls within an unlawful class of acts................ 43 distributees under auditor's report.-See BoxDS.............. 107 378 priate collaterals, and proper method to contest same, 53 compelled to pay the amount thereof, the adminis- terre-tenant did not relieve the surety. not discharge him. This rule applies where creditor creditors are enabled to take land..... to the execution of the bond for the balance of the ............. sioners at sale for taxes, in accordance with provisions amount realized......... -Municipal Corporations. distinct from other capital.. tary .. in inducing the payment by force of process available remedies for its collection will be resorted to.............. 213 .......... . ......... ....... 499 ..... ict of ............ 414 ............. 128 .......... ..... Ib ............. 213 - 339 ......... 231 ... ................................... ................ 408 0 0 assignee's sallected and relified the vend TAXES AND TAXATION-Continued. on a judgment which is not a llen thereon, cannot be State ....... .. 43 lawful for owner of undivided interest in timber land interest in land without consent of his co-tenant and realty...................... der Act of February 24, 1834, as against creditors of ....... 170 equity in third person, he may perfect his title by the title derived from a sale upon the liens purchased, 12 existing mortgages, is not bound to pay them off un- proceeding to perfect his title under them........ from third party, portion of which is applied on ac. to recover possession............... wife's money, subject to resulting trust in favor of ............ 82 vendor held deeds for the land with name of grantee did not have a good and perfect title as rapresented... A child can be treated as a trespasser. goes for purchase of land, and, at time of sale, she de- ........... 344 in Statute of Frauds........ ance by trustee of contract creating trust, it can be ....... is induced to confide in verbal promise of another er maleficio........ and of expediency, in a proceeding to incorporate a does not lie from the decree of the court....... TOWNS AND VILLAGES-Continued. March 31, 1860, both to forfeiture of their offices and 231 condemned by railway company, a dangerous road on finally permitted the guards to fall into decay........... 491 freehold, who has taken possession of premises, for ....... 215 ing on turnpike road which is vacated, and new street tion of old lines at right angles with the vacated road, 343 except payment of consideration money, cannot be ......... 235 ..... 235 ute of Frauds. The vendee neglected and refused to comply with said 290 Held, that excess was rightly awarded to vendee...... 368 from land by one to whom the vendee bas sold it...... 381 pose of hindering and delaying vendor from recovering chattel which would support the replevin................. 381 mill, defense being tbat plaintiff bad not completed contract." Held, that such verdict would be set aside, suit shall not be commenced within ninety days........ 80 emption ........... estate, where personalty has been wasted... ance company precluded from recovering on policy by misrepresentations in application..... tates-Evidence. of his deceased son W. who was indebted to A. Held, ........ 60 ..... ... 48 ....... 185 .... 31 ............... 95 ....., 391 ....... 141 onertenti ld, that thi!! go to My all my he 284 WILL-Continued. WILL-Continued. By the residuary clause of A.'s will his estate was di whichever writing became operative, and that it should vided into four equal shares, his widow being one of have full effect............... the residuary legatees. She having refused to take In proviso to his will testator directs manner in which under the will, held, that other residuary legatees were net share of each child shall be ascertained. Afterentitled to whole of residue....... wards he revokes bequest to R., as contained in two Where by terms of, executors are directed to sell realty sentences of his will quoted by him in his codicil, but at their discretion, and may be compelled to sell after carefully avoids changing or annulling mode in which certain time, held, that this works a conversion of the share of each child is to be ascertained. He then gives real estate.............. the share of his son R. to his son's wife. Held, that Where testator gave to his executrix part of his estate, share to which R.'s wife was entitled was share which directing her to pay his debts, and then by codicil di R. would have taken if his wife had been substituted rected her to sell a lot and pay the debts out of the as legatee in his stead... proceeds, which was insufficient for the purpose, she A man of sound mind and disposing memory is one who was required to pay the balance of the debts........... has full and intelligent knowledge of act he is engaged John Adlams by will devised real estate to his wife for in, full knowledge of property he possesses, an intellilife and directed that after her death it should be sold gent perception and understanding of disposition he and proceeds divided among his children, and then pro desires to make of it, and of persons and objects he devided as follows: “It is also my will that no one of sires shall be recipients of his bounty. It is not neceshusbands or wives of aforesaid children shall have any sary that he collect all these in one review. If he uninterest in or control over property hereby bequeathed. derstands in detail all that he is about, and chooses but that shares of my said children shall belong with understanding and reason between one disposito thein separately and exclusively, whose receipts tion and another, it is sufficient for the making of a will 405 therefor shall be deemed and taken as a ful discharge He directed “that the money coming from R. must be to my executors.” Attestator's death he had two mar equally divided between all my heirs except B., and ried daughters. After death of testator's wife, child her share shall go to M." There were seven children. ren by writing, in which the husbands of the two mar Held, that this fund was to be divided into seven cqual ried daughters joined, agreed to accept the land as parts, two of which were to be distributed to M........... 141 real estate, and afterwards partition was made and An express and positive direction to pay at a specified purparts awarded to each. Held, that under this will period will not be overborne by inference or argument the interests of married daughters were separate use from other parts of the will........... trust and that upon death of mother interest vested Testator directed that his executors should sell certain in them under the provisions of will. While it is true real estate, invest the proceeds thereof for the period of that married women could not dispose of or incumber twelve years after his decease, and pay over annually their estate because of trust, yet it does not follow to each of his nine grandchildren one-ninth of the inthat they may not exercise a power of election which terest thereof; " or if any of them have died leaving the law recognizes to exist in ordinary legatees to take heirs, then pay same to said heirs." "And at the full land itself instead of its product when sold.................. 423 expiration of twelve years from the time of my deConstruction of a will-Direction to executors to sell cease shall, in like manner, pay over the principal.".... 294 farm after death or marriage of widow works conver Two of the grandchildren having died before the expirasion of the real estate, and when so qualified, the fol tion of the twelve years, each leaving a wilow and lowinx clause: "I also bequeath to said children children to survive him ; helid, that the legacies were farm on which I now reside, subject to estate of my contingent and that distribution was to be made to widow in same, etc.," does not operate as devise, but their heirs. Hell further, that the word heirs meant children take as legatees, not as devisees......... ......... the persons entitled to distribution under the intestate Devise to testator's son and son's wife for life, with "re act, and that the surviving widows took the one-third mainder in fee-simple to his heirs at law in case he of their legacies............ .......... Ib should have issue, then said tract of land to revert to One of the deceased grandchildren left four children to heirs at law of my three daughters, A., B. and C. in survive him, one of whom subsequently died. Held, fee-simple," gives only a joint life-estate to the son that one-sixth part of the contingent legacy beand his wife. The failure of issue meant is not an in "queathed to his father vested in him so as to be transdefinite failure of issue, and rule in Shelley's case missible to his legal representatives.......... does not apply. As soon as son has a child, remainder Testator devised all his property in trust to pay certain in fee vests in that child, opening to let in afterborn annuities, and after the annuitant's death to pay over children. When once vested in such children fee is the estate to the Pennsylvania Hospital. Held, that absolute...................... ................................ 491 although the testator's estate yielded an income largeDirection in will that all testator's estate, real and per ly in excess of what was necessary to pay the annuities, sonal, be appraised and sold as soon as it can be done the trustees should retain the whole estate, as it was with advantage, and that all the money arising from not to be paid over to the hospital by the terms of the sale of real estate be equally divided among my child will till after the decease of the annuitants................. 302 ren, share and share alike, works a conversion of the An attempt, in a will, after granting fee simple absolute, real estate which took effect at the death of tes to appoint guardian to take charge of property for life tator. Provision that any of his sons unight, at his op of devisee, and to declare property free from liability tion, take farin at appraisement, did not change effect for debts of owner, is inconsistent with grant............. of direction to sell. Were it not for devise over, in Especially it cannot be done without use of apt words. case any of devisees died before reaching the age of twenty-one years, and without lawful issue, legacies WITNESS. A joint obligor was called to prove the exemust be taken as vested. When child, therefore, cution of the note, in a suit against his deceased colived beyond that period, her share became absolute..... obligor. Held, incompetent.......... **................. 230 A testator devised and bequeathed to his wife the resi One who is both executor and beneficiary under a will due of his estate in trust to apply the income of the is a competent subscribing witness, and may testify as same to herself and to his children living at his death to the execution of the will upon an issue of devisarit in equal shares, empowering her, at the expiration of vel noil....... ......... 305 seven years from his death, to make partition of his One not directly interested in case before court is conreal estate to and among his children (the children of petent witness, although he is directly interested in question involved............ those deceased to take their parent's share), and allot ................................ 1 1 to them their several and respective shares, expressly WHARFAGE. Municipal corporation claiming right ordering and declaring that until such partition was to exact wharfage for use of public wharf must show made no interest was to vest in any of his children. plain legislative trant of franchise; and such auHe also gave his wife such power over the income of thority cannot be deduced from powers to lay out, the estate that she might retain any child's share until regulate and exercise all needful jurisdiction over the distribution of the corpus of the estate was made, roads, streets, lanes and alleys, and to make laws, ordiand then incorporate the same with such child's share. nances, by-laws and regulations for good order and Hell, that no child had any vested interest in the testa government of municipality not repugnant to or intor's estate until partition was made, and that any in consistent with laws of the Commonwealth. Borough come retained became a part of the estate, and did not of Elizabeth has no such riparian proprietorship in vest until the share of which it formed a part was wharf at foot of Market street as will sustain its claim allotted..... ......... 309 to wharfage......... Testator made will dated November 20, 1871. On January 13. 1873, he executed another, and on January WHARVES. City of Philadelphia is not liable to 1873, he executed a codicil to the last will, wherein he lessees of wharves, who may be damaged by filling up referred to each distinctly, and declared that if he space in front or at sides of samne by matter disshould die before a certain date the earlier will was to charged from culverts emptying into river Delaware be taken as his last will and testament. He died be beyond low water mark, as such lessees have no title fore the date he had provided for. Held, that as there beyond low water line....... .... 360 was no intimation that codicil should not take effect, | WORDS-CONSTRUCTION OF. "Heirs" in an the clear intent was that it should attach itself to agreement.. 101 ....... ...... 459 LOSS OF GOODS BY CARRIERS. arrived at the defendants' offices, and, at the plaintiff's request was retained there till June, (FROM THE IRISH LAW TIMES.) and then delivered to the plaintill. The plainIn the case of Eyre v. Midland Great Western till afterwards brought an action for £210 dam(of Ir.) R. Co., recently decided by HARRISON, ages for the loss of the trunk and injury to its J., on appeal, it appeared that a railway pas- contents. The miscarriage and loss for the time senger, in consequence of the non-arrival of his were admitted, as also that some of its contents luggage, had been obliged to purchase various had been injured in New York, owing to the personal necessaries in substitution for those custow-house othicer packing the trunk, and which were detained; but in the award of dam- negligently and unskillfully repacking it. It ages nothing was included for this consequential was further admitted that certain silk dresses loss. This rather surprised us at the time, but and a sealskin jacket which it contained were on inquiry we ascertained that no claim in re- articles within the carriers act, that their value spect of those articles had been pressed for. We exceeded £10, and that no declaration had been made some researches for authorities on the sub-made. The jury were discharged by consent, ject, but could find none directly in point-the and all questions of law and fact were left to the nearest, which, however, are distinguishable, decision of LOPES, J., who presided at the trial, being British Columbia Saw Mill Co. v. Vettle the amount of damages, in case the plaintiff was ship, L. R. 3 C. P., 499; 37 L. J. C. P., 235, and entitled to a verdict, being agreed upon, includWalton v. Fothergill, 9 C. & P., 394, and to those ing a sum of £10 for the repurchase by the cases we referred accordingly. It is satisfactory plaintiff of certain other articles of clothing in that at last a decision rather more in point has Rome at enhanceri prices, to replace those conbeen reported which we find in last Saturday's tained in the trunk. Law Times-Millen v. Brash & Co., 45 L. T. (N. The defense rested on the Carriers Act. It S.), 653. And not only may that case be collated was, in the first place, contended on behalf of with those already collected in our papers on the plaintiff, that the act did not apply, because remoteness of consequential damage, but on the loss was temporary and not permanent. several special points in the law of carriers, to LOPES, J., however, observed that there was which we have previously adverted, it will be nothing in the act or in the authorities to justify found of importance, as, indeed, LOPES, J., in- ithe placing of so narrow a construction on the dicated. 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 lIcarn v. London, possession a case of paper goods (Christmas etc., R. Co., 10 Ex., 793 ; 21 L. J. Ex., 180, holdcards) consigned to Mr. Hamburger, of New ing that “logy" 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. (0., 8 Ir. I. 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 |