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........... 147

... 227

.. 196

.............. 381

..... 161

....... 329

A garni-hee 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 hini..............
Service of process upon life insurance companies under

Acts of April 24, 1857, and April 8, 1868.. .................. 316
PUBLIC ROAD.. Effect of absolute confirination of

plan of laying out............
PAYMENT. Payment to one whose authority is, at best,

but prima facir, assumes all risks and consequences of
the failure of that assiuoption, 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 #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........ ..................... 111
The question of fact to be illustrated by testiinony was
whether risk, which occasioned injury, was of an ex-
traordinary and unusual character--risk not ordi-
marily 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
kuown by latter, and that he signed his name in both
moules is one of fact..........

............ 157
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-
meditater "intention to take the life of deceased......... 167
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......

............ 289
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

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


. 231
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 roarranto 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........... ..... 286
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
euch 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, 1819, requiring railroad com-
panies to reconstruct any portion of a turnpike or pub-
lic road, site of which they have found it necessary to

.................. 136
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 mandanus,
com pel 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..........

................. 136
The purchasing of a ticket from a scalper and using the
same, is not an offense under Act of May 6, 1863, and


the company has no right to question persons where and

how they procured tickets...
When company not liable for injury to child over five

years of age, and who was not a passenger........ ........ 155
REAL ESTATE. See Title--Tax Sales--Legacy.

Marble counter slabs, in a store, where the counter is
complete withont 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.....
When lien of judginent for purchase money cannot be

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.
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

of articles in question...........
RESERVATIONS IN DEED. Grantor of land ex-

cepted and reserved from his grant, inter alia, "all
minerals." Helit, 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-

.......... 174
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.........

location of property is not essentially necessary. If
purchase was in good faith and for valuable considerat-
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.

..... 382
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 affirina-
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.......

............ 165



... 286

....... 453




.. 202

... 127

..... 267


............. 418



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 dain-
ages arose ex-contractu, and the evidence was admis-

.................. 200
Damages for which an action sounding in tort might be
maintained may be set off in an action on a promissory

SEQUESTRATION. See Corporations.

tary notice of Albany Laro Journal on his retirement

from the bench......
Tribute by Philadelphia Bar to.........

Death notice of....

...... 411
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...... 23
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 & 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.
Hell, 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........

.................... 327
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 northwextirardly 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 eren date, and that mortgage

is to secure purchase money thereof.
Held, that a sheriff's sale on this mortgage gave a good


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

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............... 199
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.............

................. 243
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..........


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


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 suppleinent 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.................

... 371
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

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........... ......................................... 2
SUPREME COURT. Order transferring certain count-

ies from Middle and Western Districts to Eastern

....................... 422

....63, 76, 88
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................ 43
SURETY. On bond of voluntary assignee, when liable to

distributees under auditor's report.-See BoxDS.............. 107
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, 53
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 O., surety, was party. It was not revived
against terre-tenant, of which fact O., 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 coin missioners'
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

-Municipal Corporations.
Real estate of a national bank is subject to taxation,

distinct from other capital..
When payment of taxes will be considered as volun-

tary ..
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 & 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 lande, under a threat to sell the same




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................ 408



assignee's sallected and relified the vend


on a judgment which is not a llen thereon, cannot be
recovered back by reason thereof..
Taxation of Foreign Corporations doing business in this

State .......
TENANTS FOR LIFE. See Partition.
TERRE-TENANTS. Not necessary to serve, in
scire facias on mortgage...

.. 43
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 ro cut or
removed passing no title to vendee: Held, in an
action of trover against such vendee by non-consent-
ing part owner, that plaintifft 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

TITLE. As to quieting title of heirs and devisees, un-

der Act of February 24, 1834, as against creditors of

....... 170
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 affeet

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.
connt 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

............ 82
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 rapresented...
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 judy.
ment creditors of husband....
Negligence of, in making investments .......

........... 344
What facts, held sufficient to constitute trust, not with-

in Statute of Frauds........
Where cestui que trust can compel specific perform-

ance by trustee of contract creating trust, it can be
enforced by trustee against him........

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

er 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.......
Members of town councils are liable, under Act of


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.
med ........
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
fixtures attached by a tenant....

....... 215
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 .........

......... 235
The defense of ultra vires is never allowed out of re-
gard for the defendant, but rests solely upon public

..... 235

ute of Frauds.
An assignee's sale was made of land on certain terms.

The vendee neglected and refused to comply with said
terms; the assignee thon 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 bas 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 admig.
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................. 381
VERDICT. In suit for erection and construction of saw

mill, defense being tbat plaintiff bad not completed
mill, jury rendered verdict in favor of plaintiff for $240,
" and the plaintiff to complete the job according to

contract." Held, that such verdict would be set aside,
WAIVER. Of condition in policy of insurance, that

suit shall not be commenced within ninety days........ 80
WAGES. See Lien.
When attached for boarding, defendant can claim ex-

emption ...........
When not a lien under Act of April 9th,
WASTE. Payment of legacies charged upon residuary

estate, where personalty has been wasted...
WARRANTY. Plaintiff in action against fire insur-

ance company precluded from recovering on policy by

misrepresentations in application.....

Right to, not ousted by subsequent marriage.... ........... 77
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 Wi's indebtedness to A. could
not be deducted out of their legacies.......

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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..................


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




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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

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