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...... 411


Orphans' Court as such, was considered good after
Executors having rented real estate for three years,

thirty years....

under power and will, and then relinquished pos- Where guardian uses trust funds in his business, he
session under agreement of partition between

is liable for interest thereon at rate of 6 per cent... 385
residuary beneficiaries, held liable to account for F. was discharged as guardian, being insolvent,
rents due and uncollected on transfer posses-

and filed his account, showing balance due by

392 him. In subsequent proceeding in partition, in
Where they exercise ordinary prudence not liable

which he was attorney for petitioner and his suc-
for loss resulting from non-payment of taxes

cessor party, he was allowed fee. Held, that his
within specified time.

Ib successor should have retained his ward's propor-
Will not be allowed credit for payment for legal

tion of fee.....

services made necessary by their negligence......... 431 Judgment against guardian may be inquired into
FACTOR. See Principal and Agent.

as between gardian and ward on settlement of
guardian's account.


Measure of liability of guardian for failure to pay
FEME SOLE TRADER. See Husband and Wife. taxes, make repairs, etc., on real estate of his
A feme sole trader has power to bind herself by

ward, is loss resulting....

agreement for the sale of her real estate, without GUARDIAN AND WARD. See Judgment.
acknowledgment of said agreement or the join-

Duty of guardian to bring ejectment for ward's
der of her husband therein, and although she was

land, and practice as to settling compensation of
living with her husband at the time of making

the attorney employed......

the agreement.....


When guardian is entitled to proceeds of benefiei-
FETTERMAN, G. L. B. Action of Allegheny

ary certificate which is payable to administrator
County Bar on death of..

of donor's children....


A guardian cannot claim for maintenance of his
See Real Estate Landlord and

ward, who worked about the former's house and

shop and who had made no charge against the
Fixtures are not goods and chattels for all pur-

ward, nor had any intention so to do, until the
poses. They are not unless made so by tenant's

minor, when eighteen years of age, went to work
severance, or for benefit of execution creditors.

for himself......

While they remain attached they are part of free- HAMILTON, GEORGE P. Action of Allegheny
215 County Bar on death of....

FOREIGN ATTACHMENT. Service of foreign HEIRS, in agreement, cannot be construed to mean
attachment by sheriff is good, where he states


that he went to store, and, in the presence of two HUSBAND AND WIFE. Act of 9th April, 1872,
credible persons, declared that he attached stock

P. L., 35, (separate earnings of married women)
of goods in store, consisting of silks, etc., and

only confers right to retain earnings from hus-
then and there made known the contents of said

band and creditors, and does not make one taking
writ to A. and B., who were found in possession

benefit of it feme sole trader. To become seme sole
of said goods....


trader married woman must bring herself within

Act of 220 February, 1718, or of 4th May, 1855.... 172
summons on officer of, casually in this State-

Act of 9th April, 1872, is an extension of Act of 11th
see practice....

189 April, 1818. It secures to married woman her sepa-
Doing business within this State are liable under

rate earnings, and, impliedly, authorizes her to
existing laws to pay license tax for protection

engage in business. By taking benefit of it she
afforded by State; but they cannot be taxed for

assumes rights and is subject to liabilities of feme
whole amount of their capital stock, unless they

make this State their domicile and situs of their

Husband need not be joined in a suit under this act, ib

339 Feme covert in Pennsylvania is not enabled to con-
Mere act of foreign corporation, sending its agents

vey or incumber real estate she may acquire by
to transact business within this Commonwealth,

future purchase, but in which she has no present
does not render its entire capital stock liable to

interest whatever; nor is she empowered to enter
taxation under existing laws......

Ib into any contract in the nature of covenant to
State has no power to tax foreign corporations

stand seized or to convey interest in realty to be
for the mere holding of stock in corporations

acquired by purchase in futuro......

or limited partnerships in this Commonwealth,

Married woman, by virtue of Act of 29th February,
which have already paid the tax levied upon

1872, has power to make contract for conditional
them. Distinction, for the purposes of taxation,

purchase of sewing machine, and therein to waive
between capital stock of corporation and certifi.

benefit of the exemption law....

cates of stock held by its members...

Ib Married woman alleging that at her suggestion her
Foreign corporation does not render itself liable to

husband purchased land for her and that she
taxation within this State by purchase of raw

furnished money for all payments, must show
material which is shipped to its place of domicile

that she had means to buy with, and that she so ap-
for manufacture.....

Ib plied those means in payment of purchase money 481
When an act giving to Commonwealth power of

A married woman is not bound to record her deed
collecting taxes, together with penalties for non-

under pain of losing her land if seized by her hus-
payment, etc., is repealed, reserving to Common-

band's creditors.....

wealth right to collect all taxes accrued, penalties

In interpreting conveyance by husband to wife,
cannot be recovered upon suits afterwards insti-

executed at a time when former had no creditors
tuted collect the taxes.....

Ib to question bona fides of the transaction, construc.

tion which courts place on conditional convey-
FORFEITURE. When not incurred, on policy of

ances, especially where there is slightest evidence


that security was the object intended, does not
FOX, JOHN A. Action of Allegheny County Bar

prevail, but it is to be construed most strongly
on death of......
271 against husband.....

FRAUD. See Sheriff's Sale.

The conveyance or pledge, by a married woman, of

a chattel real, to be thereafter acquired, is void.... 8
Construction of, to bar bankrupt's discharge... 37

Release of legacy charged on land by married wo-
The mere fact of an arrangement between the pur-

man to her husband, is not conveyance of land,
chaser and the defendant in an execution, that

and hence does not fall within the provisions of
the sale should be for the benefit and advantage

the Act of February 21, 1770, relating to acknowl.
of the latter, does not of itself make the sale abso-

edgments; but unless duly acknowledged it would
lutely void. It would be voidable by any creditor

not come within recording acts...

defrauded, but was good as between the parties to Effect of such a release upon judgment creditors of
the arrangement.....


husband, who are induced and misled thereby to
GAMBLING CONTRACTS. Where stock trans-

loan money to husband.

actions were declared illegal, after settlement be-

Provisions of Act February 29, 1872, P. L., 21, do not
tween parties and entry of judgment on bond

enable married woman to render her husband
given by one to the other for alleged balances....... 238

liable for price of a sewing machine purchased by
GIBSON, ROBERT M. Action of Allegheny

her separately for her own use, unless such ma-
County Bar on death of....

chine be a necessity for the use of the joint family,

and where not such a necessity, vendor can re-
GUARDIAN AND WILL. Payment to a father,

cover judgment for price thereot only against wife,
as guardian of his infant child, who was not duly

and can issue execution only against her separate
appointed as such, but was recognized by the




Resulting trust in favor of wife, where land is paid

tor with her money, but title taken in husband's
name, and fund arising therefrom awarded to wife, 82
Husband who executes bond accompanying mort-

gage of wife to building association, is liable on
bond, although he received none of consideration,
and although his wife is not liable on mortgage

by reason of her disability incident to coverture... 92
When assignor for benefit ot creditors may present

absolutely to his wife his exempted property...... 111
IMPLIED ASSUMPSIT. Decedent boarded with

her son-in-law and did some work about the
house. Held, that while relationship was not of
itself sufficient to rebut the presumption that she
was to pay for her boarding, yet it made it more

easily rebutted, and his claim was not allowed..... 385
INCUMBRANCES. See Title--Lien.

INJUNCTION. See Equity-Burial Grounds.
When nuisance to right of way created by deed
will be restrained.

When the covenant is of such a nature that it can,

consistently with the principles of equity, be spe-
citically enforced, the court will not, unless under
exceptional circumstances, take into considera-
tion the comparative injury to the parties from
granting or withholding the injunction....

INSURANCE-LIFE. A policy of insurance con-

tained a provision that the same should be for-
feited if the insured should fail to give notice to
the secretary of the insurance company of any
change in his residence. The insured notified the
agent through whom he had obtained his policy
and from whom he had received his notices of
assessment, and to whom he paid the same. After
bis removal he continued to receive like notices
and to make like payments. Held, that he had
sufficiently complied with the provision of the

policy, and that said policy was not forfeited.. 89
Where the proceeds of a beneticiary certificate are

made payable to the “administrators" of the
donor's children, who at the issuance of the policy
were minors. Held, that the guardian of such

children was entitled to receive the proceeds... 126
Where policy stipulated to pay a specitied sum and

underneath qualified the amount to be paid ac-
cording to time when assured died, the company
was held liable for full amount..

Suit may be brought in county where subject of

risk insured against was domiciled or located,
and summons may be served on company in any
other county of Commonwealth in manner pro-

vided by the original Act of April 24, 1857..... 481
INSURANCE-FIRE. Where the agent of a com-

pany examines a building and fills up an applica-
tion, which he reads to the owner, and which is
signed by him, such agent is to be regarded with
respect to such application as the agent of the
owner, and hence the company will not be es-
topped from setting up the falsehood of state-
ments in the application as a defense to an
action on a policy of insurance issued by it in
pursuanc of such application....

Where the secretary of a mutual insurance com-

pany declares that the company will not pay a
loss, it is a waiver not only of preliminary proofs
but also of a condition in the policy that suit
shall not be commenced until the expiration of
ninety days after proof of loss...

Where general agent of insurance company fraud.

ulently misrepresents to local agent solvency of
company, and latter, in the honest belief that
statements made to him are true, procures an in-
surance by stating again the representations
made to him, insured may defend against an ac-
tion by company upon his premium note upon
ground of such misrepresentations..

INTEREST. There are no State banks of issue in

this State entitled to receive more than six per
cent. interest, consequently national banks can-
not contract for or receive higher rate than six
per cent...

Where money is recoverable under statute that

makes no provision for interest none can be re-

INVESTMENTS. Where a committee deposits in

a savings bank, receiving a certificate, by the
terms of which he is to be entitled to draw the
money, with interest, at three months from date,
on giving thirty days' notice. Held, to be an in-
vestment and not a deposit......


Liability of committee of lunatic for losses sus.

tained through the insolvency of the savings
bank in which lunatic's money had been in-

Liability of trustee for losses occasioned by supine

negligence in investment of trust funds; certain
investments made in what are known as “bonus
mortgages" were too speculative to justify the
investments, and the trustee was justly held
liable for loss thereby occasioned..


tolls exacted by canal company, whose right to
same is disputed, but which by exercise of threats
and other means of coercion compels parties to
accede to its demanóls or be put to considerable
loss in their business, are such involuntary pay-
ments that company will be compelled to make
restitution upon suit for their recovery

JUDGMENT. Where Difference in Names Creates

Question as to Lien-See Questions of Law and

Where judgment entered upon a bond given to
secure payment of stone to be delivered at speci-
fied times, should have been opened. The testi-
mony under the rule to open being very conflict-

ing as to the cause alleged in support of the rule... 176
A judgment entered against an executor is good,
although the testator's joint obligor is, at the
time, in full life...

Ordinarily the assignment of a judgment carries

with it ihe right to proceed with any outstanding
process issued thereon...

Lien of judgment is neither destroyed nor affected

by an order of court opening judgment for pur-
pose of letting defendant into defense.

Where, pending proceedings under rule of court to

open judgment for purpose of letting the defend.
ant into defense, judgment is transferred to an-
other county by exemplification of record, lien of
judgment is not lost or affected by proceedings to
open it in original court in which it is entered ...... Ib
When corporation gives mortgage, the validity of

which is unquestioned by corporation itself--no
defense set up to an action brought to recover on
bond-and judgment is regularly obtained, such
judgment cannot be collaterally attacked except

for fraud or collusion.
Lien o1, upon award of arbitrators when entered
within five years..

For purchase money-under what circumstances
cannot be impeached...

Lien of mortgage not indexed--when not post-
poned to subsequent judgment....

Against married woman separately for sewing
machine--when recovered...

Entered upon judgment note given by guardian,

both in his individual and official capacity, to
secure payment of fees for professional services
rendered to estate of his ward, does not consti-
tute lien upon real estate of ward. If ward, after
coming of age, agrees with holder of judgment
that said real estate shall be sold with same effect
as if it had been sold by guardian under order of
court for payment of debts, holder will be entitled
to claim whatever is justly due out of fund pro-
duced by sale of land.

Confession of, contained in lease, proceedings under

Act of March 14, 1876, can only be taken when
judgment is paid in full...


Postponed, in distribution of fund to wife of execu-

tion defendant, where the land sold was charged
with resulting trust in favor of wife.....

JURORS. Commonwealth in criminal cases may, with-

out assigning cause, stand aside any number until the
entire panel is exhausted...

Under the Act of 1834 the additional number of jurors

called to make up the number to twelve, to try a cause
in which a view shall have been had, should be drawn
from the special renire which the prothonotary is di-
rected to issue..

JUSTICES OF THE PEACE. A justice is not

bound to accept as security for costs, upon an appeal,
a bond executed away from his office and out of his

The jurisdiction of, to hold inquest super visum corporis

is purely statutory, is confined exclusively to cases ex-
pressly named in the act, and should appear on face of

LANDLORD AND TENANT. Before expiration

of a yearly lease containing confession of judgment
for the first year, with notice to quit, &c., tenant gave




notice that he would not remain without certain im-
provements, and after paying the first quarter's rent of
the new year, vacated. Held, that the confession of
judgment in the lease, applied only to that year.... 100
The liability of an assignee of a term is founded upon
the privity of the estate, and does not spring from any

contract relation between the assignor and the lessor... 178
A landlord is not required to credit on rent in arrears

anything except actual payments and such sums as the
parties agree to treat as payment on account of rent.
He is not obliged to deduct a tenant's claim for un-
liquidated damages......

An agreement between landlord and tenant that the lat-

ter may remove fixtures at end of term does not either
perinit him to do so thereafter nor to maintain trover
against the landlord..

Where, under a lease of coal lands, the lessor reserves

the option of buying the tenant's fixtures at the end
of the term, such option will not give the lessor any
title to the fixtures as against execution creditors un-
til the same are appraised and accepted....

Effect of agreement between landlord and tenant as to

character of fixtures upon the demised premises.... Ib
Upon the question of an implied renewal of a tenancy

all the terms of the former lease must be considered.
Hence, if a landlord elect to treat one holding over as
a tenant, he thereby affirms the form of tenancy under

which the tenant previously held..
Where no rent is in arrears, although under section 3 of

the act the person distraining is liable for double the
value of the goods, the person injured may elect to
bring an action at common law, and, if the circum-
stances warrant, recover exemplary damages exceed-
ing the amount of the statutory penalty ; and a dis-
tress when the claim is wholly false is a mere trespass,
but when the landlord distrains for more rent than is
due, trespass does not, but case will lie, though the
goods distrained were of less value than the rent really
due, and nominal damages may be given......

The Act of 1772, under which goods were sold for rent in

arrear, is imperative upon landlord, and it would seem
to give the proceedings the character of an execution;
only so much of the defendant's property should be
sold as will pay the rent due, nor should the sale pro-
ceed upon a tender of the debt and costs.....

LARCENY. See Crimes.
When defendant indicted for false pretenses cannot be

convicted of, under proviso to Act of March 31, 1860,
Sec. III..

LEGACY. fee Husband and Wife-Wills.
Release of, by wife to husband...

Where a testator, without creating an express trast to

pay legacies, makes a general residuary disposition of
his whole estate, blending the realty and personalty in
one fund, the real estate is constructively charged with
the legacies...

As to apportionment and payment of such legacies, where
the personalty has been wasted...

D. devised and bequeathed to M. all his real estate and

personal property, except what was thereinafter men-
tioned, and then bequeathed legacies to J. and G.
Held, that the legacies were a charge on the real es-
tate devised to M...

LEGISLATURE. Power of, to provide remedy to en-

force payment of debts due corporations whose charters
have expired by limitation....

LEGITIMATION. The Act of May 14, 1857, to be
liberally construed. See Evidence..

LIEN. See Municipal Lien-Distribution-Maritime

Purchaser may avail himself of a, to perfect title.

Property purchased with notice of, held subject to... 46
Divestiture of prior fixed, by sheriff's sale on municipal
lien ..........

An innkeeper or agister has a lien upon an animal for
boarding and keep, and may maintain replevin if the
said aniinal is removed clandestinely or without his

When wages not a lien under Act of April 9, 1872... 336
Notices of claims for wages under Act of April 9, 1872,

must be given within time limited by Act, and must
comply with other provisions thereof, relating to the
labor, sumns due, and that the property subject to the
lien is embraced in the levy....

The business of cutting saw-logs and driving them to

the place of manufacture is not within the Act of 1872.. 347
Third section of Act of 1872 does not give lien on choses

in action in favor of wages claimants: lien is limited
to such property as is subject to seizure and sale on exe-

ment between the parties, a debt is not due and

able until the occurrence of a future event, the statute


of limitations will not begin to run until the occur-
rence of such event....

In the case of a technical or express trust, no period of

time less than will raise the presumption of payment
will toll the running of the statute...

When new promise of one partner after dissolution to

pay partnership debt barred by statute, will not bind

LIQUOR. The Act of 3d April, 1872, Purd., 951, in rela-

tion to the sale of liquors in Allegheny county, repealed
all acts in force in said county.

LUNATIC. See Investments.
The committee of a lunatic can only protect himself

from risk when he invests the trust funds in real or
government securities, or makes the investment in pur-
suance of an order of the court...

After lunatic's death the Court of Coinmon Pleas has no

jurisdiction to make distribution to the next of kin, of
the funds in hands of the cominittee (who has filed his
account), but must award the same to the personal
representative for distribution ......

MANDAMUS. In case of an unlawful exclusion of

colored child from school, parent of such child may

proceed by mandamus to enforce his admission....... 382
MARITIME LIEN. The general maritime law gives

no lien for services in raising a sunken vessel, rendered
in her home port....

Nor is a contract for raising a sunken vessel within the

purview of a local statute which gives a lien for work
done or materials furnished “in the building, repair-
ing, fitting, furnishing or equipping" vessels, al-
though the execution of the contract involves the bulk-
heading, planking up and closing the breaks in her

hull to keep her afloat while being towed to the docks... Ib
MARRIAGE. See Evidence.
If female under age of twelve years enters into marriage

contract and ratifies it after she arrives at that age, it
is binding upon her..

MARRIED WOMAN. See Husband and Wife.
MASTER AND SERVANT. The fact that a par-

ticular accident might have been prevented by some
special device or precaution, not in common use, does
not render the employer liable..

If the risk is an ordinary one, the employer is not liable,

even if the employee did use ordinary care. In all
cases the risk of injury is one of the hazards which the
employee assumes when he engages in the service to
which it is incident.....

MECHANIC'S LIEN. It is no answer to a mechanic's

lien, that the mechanic drew upon the contractor to the
order of the equitable plaintiff, and that the latter ac-
cepted also the note of the contractor, in the absence
of any express agreement that they should be taken in

Courts lean in favor of sustaining mechanic's lien when

the property is so described therein that those ac-
quainted with neighborhood are able to identify it.
The lien in this case was filed against “all that certain

two-story brick stable, having a front of 20 feet and a
depth of 88 feet, erected upon a lot situate in the
Seventh ward, Allegheny, fronting 20 feet on the east-
ern side of East street, and extending back 250 feet to

Locust street." Held, that description was sufficient... 404
A mechanic's lien filed against one as contractor and re-

puted owner, but not naming the real owner, is futally

Mechanic's claim for repairs, alterations and additions,

is a lien only from filing, and does not relate back of
filing. When terre-tenant dies before same is filed,
mechanic claimant has no priority, and his clain connes

in pro rata with other debts of decedent not of record, 440
MINING. When owner of coal mine must support sur-
face at all events. See Easement...

common carriers....

Misrepresentations leading to contracts.

Personal actions, survival of.

Flogging as a punishment.

MORTGAGES. See Distribution-Partition.
Purchaser of land subject to, may avail himself of same
to perfect his title.

Not necessary to serve scire facias on a mortgage on
terre-tenants or give them notice......

Lien of, when not postponed to subsequent judgment,

although not indexed..
What held to be a parol.
Mortgagee of interest in an undivided estate, not entitled

to notice or to be made party to proceedings in parti-

Party relying upon title regular on its face and without


notice of any trust or equity affecting its force and
effect, loans money upon mortgage thereon, and after-
wards assigns mortgage, assignee will take such mort-
gage discharged of equities of persons not parties to it
of which he has no notice....

Mortgagee is within equity of rule that when several

pieces of real estate, subject to common incus brance.
are successively aliened, properties so disposed of are
liable for amount of incumbrance in inverse order of
alienation--mortgagees in such cases, to extent of mort-
page debts, being considered as purchasers having cer-
tain interest in lanıls defeasible on payment of mort-
gage debts....

Lien of mortgage of leasehold does not extend to after-
acquired leasehold of same parties in mame premises,
which is not renewal of former lease ; sheriff's sale un-
der said mortgage does not divest interest under sec-
ond lease..

Although note secured by mortgage be harred by statute

of limitations, mortgage is not; and where real estate,
other than that on which the mortgage is specific lien,
is sold under authority of the deceased inortgagor, such
mortgage is payable out of proceeds of sale..

MOWRY LAND CASE. Charge of Judge Butler...... 281

The mayor of the city of Pittsburgh has no jurisdiction

by summary conviction of the offense of selling liquor
on Sunday

Per Ewing, P. J.: Under existing legislation the coun-

cils of Pitt. burgh have ample power to pass an ordi-
nance making it an offense against the city to main-
tain a place for the illicit sale of liquors.....

When the taxes levied by a city are clearly for a proper

publie purpose, and are authorized by the State law,
though some of the property assessed be farm land
within the city, the Supreme court of the C.S. cannot
say that such a statute deprives the owner of his pror-
erty without dne process of law.

License tax upon national banks by, is unconstitutional. 74
When damages are sought to be recovered from a muni-

cipal corporation by reason of negligence in the con-
struction of a sever, the action cannot be sustained if
it appears that the injury would have occurred in all
human probability in the absence of such negligence.. 204
Municipal corporations are only bound to exercise rea-

sonable and proper care as to their sidewalks, and if
rain falls and frost follows and sidewalks become
slippery they are not required to immediately make
them safe to walk upon.

The law imposes duty of keeping bighways in safe con-

dition for travelers ; but not in condition of such abso-
lute safety as would preclude possibility of accident or
injury, which would be wholly impracticable...

MUNICIPAL LIEN. A sheriff's sale on & municipal

lien filed under the Act of January 6, 1861, relating to
streets, etc., in the city of Pittsburgh, divests a prior
fixed lien on the property soldi..

Sufficiency of entry.

Municipal liens for grading and paving streets are a

species of taxation binding the entire estate in the
land, except wbere the Act of Assembly directs other-
wise, and no charge created by the owner of the prop-
erty can avail as against them......

MUTUAL AID SOCIETY. Where conditions of cer-

tificate of inembership in mutual aid association re-
quire approval by association of assignment of such
certificate, conditions must be fulfilled before assign-
ment can be of any effect. The mere fact of assignee
paying assessments due upon such a certificate is not

suthicient to warrant jury finding in his favor...... 330
MCCONNELL, THOMAS. Action of Allegheny County
Bar on death of.

MCINTOSH, KENNETH. Action of Allegheny County
Bar on death of

NECESSARIES. See Husband and Wife.
NEGLIGENCE. Wbere R. R. ('o. is not liable for death
of its employee. killed while coupling cars....

Unless the duty of protection is owed, the omission to

furnish it is not negligence, and no liability is incurred
therefor either to adults or children....

A corporation which is bound to keep its highway in re-

pair and safe condition, is answerable for an injury
caused by a temporary occupation of the road by a per-
son engaged in building, if sufficient time had elapsed
since the placing of the obstruction for the corporation
by reasonable vigilance to have discovered it and pro-
vided a safeguard

When ignorance of such defect is the result of omission

of duty, actual knowledge of its existence is not an
essential to the fixing of such liability...

To drive at the rate of twelve or fifteen miles an hour is
not negligence per se....


Where Municipal Corporation not liable for defective
construction of sewer..

Plaintiff sustained injury in day time by slipping and

falling on ridge of ice and snow extending across side-
walk from building line into street: it was three to
four feet high on inside line, then gradually sloping
down. Held, that as she knew dangerous character of
this obetruction, and could have avoided it by going
out into street, it was contributory negligence.

When sole basis of liability is omission to perform cer-

tain duty, suddenly and unexpectedly arising, there
ought to be at least a consciousness of facts which
raises the duty, on part of person who is charged with
its performance, and a reasonable opportunity to dis-
charge it....

Where one diverges from ordinary traveled portion of

sidewalk, and undertakes to pass along such part as is
ordinarily taken up with gas pipes, stepping stones,
tree boxes, hydrants, hitching ports, and such other
obstructions as are common and usual on edge of side-
walk, he must exercise greater degree of caution to pre-
vent accidents than if he were on usually traveled por-
tion of walk, and if he fails to do so, and by want of
such care and caution he comes in contact with some-
thing that reasonable observation would have cuabled
him to see and avoid, and is injured, law will not al-

low him to recover-Negligence-Measure of damages. 461
What is contributory to injuries sustained by a child

when permitted to pass over and stand upon railroad

What is not negligence in foot passenger who tripped

upon a slight elevation in a slippery crossing, fell and
was injured......

Who entitled to recover for a death caused by....

Where boy was drowned in well, over one hundred feet

from highway, dug in an open field, owners thereof
cannot be held guilty of negligence in permitting well
to remain without a guard.......

A child of tender years cannot be charged with contribu-

tory negligence. “But this principle cannot be applied
as a rule of law in all cases to children nearly eight
years of age." Such cases should be referred to the
jury; it is error to rule them as questions of law....... I b
The owner of a stallion two or three years old, who per-
mits him to roam on the public highway, is liable for
injury done by him......

NEXT OF KIN. See Equity-Burial Grounds.

Who entitled to make distribution to, of lunatic's estate 3
NOTICE. See Title.
What was held sufficient, to preserve lien....

The absolute confirmation of a plan for laying out a road,

is constructive notice to all parties interested in the
location thereof, and of its liability to be thereafter

Land was sold on a Municipal Lien, whereby a personal

charge was divested. The sheriff's vendee mortgaged
same, which was foreclosed and purchased by the
assignee of mortgage. Helil, that the Records did not
give him sufficient notice, &c.. (ause him to inquire as
to the character of the first sale, and that he held the
land from the charge..

Under Act of April 9, 1872...

NUISANCE. Although a wooden building erected con-

trary to law is not, per se, a public nuisance, yet it may

become such by the manner in which it is used......
A private person, if specially aggrieved, may abate a
public nuisance, peaceably and without a riot.

When nuisance to right of way created by deed, will be
restrained by injunction......

OFFICERS. The acts of an officer de facto are valid so

far as the public and third persons are concerned, but
none but an officer de jure can successfully claim com-
pensation for official services....

Section 4 of Article 6th, of the Constitution of Pennsyl-

vania, in reference to the removal of “appointed
officers," applies to municipal officers as well as to
State or county officers. The Receiver of Taxes in the
city of Philadelphia has the right to remove the Col-
lector of Delinquent Taxes.

ORPHANS' COURT. Does not have jurisdiction of a
claim on an official bond..

Where it sets aside inquisition on ground of under

valuation at instance of tenant for life, it has no
power to restrict functions of alias jury.

May, on settlement of guardians account, fix coinpensa-

tion of attorney employed to prosecute action..
Has jurisdiction under Act of March 20, 1832, over minor

children of living, as well ilk clearl parents. The
power to care for such carries with it every incident
necessary to effectuate that care..

When the general rule, that the surviving parent is en-

titled to custody of the persons of his children, will be
departed from, for the welfare of such children........... 130


An order was made authorizing petitioner, who repre-

sented herself as guardian, but who in fact was not
such, to mortgage Ward's estate. In proceedings to
cancel mortgage, the order was held void...

Has jurisdiction to allow contribution out of estate of

on basis of settlement made by ex-
ecutor with himself as surviving partner where it is
shown that such settlement was made in good faith
and after proper investigation, although this involves
investigation of partnership, affairs...

Valid objection to balance claimed that it is made up in

part of firm debts assumed by surviving partner in-
dividually with view to claiming contribution out of

deceased partner's estate provided firm be released...... 372
Powers of the register's court are now vested in the

Orphans' Court, and when letters of administration
are revoked by it, it should direct to whom new letters
should issue.....

Orphans' Court in settlement and distribution of estates

of decedents has undoubted jurisdiction to decide
upon claims of creditors...

PARENT AND CHILD. See Legitimation.
When surviving father will be deprived of the custody
of the persons of his minor children..

Contract between for boarding or services rendered ........ 319
PARTITION. See Orphans' Court.
When tenants for life entitled to have shares set apart,
and when it is the sheriff's duty to allot..

Any undivided interest in fee-simple in lands or tene-

ments may be partitioned on the death of one of the
tenants in common under the Act of 13th March, 1847.
Purd. Dig., 431..

When the partition results in a sale by the sheriff,

the lien of a mortgage executed by one co-tenant is di-
vested and the mortgagee must look to the proceeds of

the sale
When the allotment divests the lien against a co-tenant,

without furnishing other security, the lien creditor
must resort to the owelty which takes the place of the
debtor's interest in the land......

When widow estopped from causing partition of deceased
husband's land.....

PARTNERSHIP. This power of one partner to bind

another after dissolution, being exceptional, the facts
which give rise to it must appear in any case where it
is claimed to exist, and if they do not appear the gen-
eral rule of non-liability applies and controls...

A new promise by a partner after dissolution of the co-

partnership, to pay a debt existing against the firm,
will not take the debt out of the statute of limitations
so as to make his copartners liable, excepting when the
partner takes the stock in hand and becomes the liquid-
ating partner.....

In cases in which the rule to marshal assets as between

individual and partnership creditors is applicable and
is invoked, a surviving partner cannot enforce contri-
bution against the separate estate of a deceased partner
for partnership debts which have not been paid prior
to such decease....

While one of several partners may justly subject partner-

ship property to levyand sale in discharge of partnership
debt by giving judgment note therefor in name of firm,
he has no right to thus undertake to pay his individual
debt without knowledge of his copartner, even though
money for which judgment note was given was used

for firm purposes.
Such judgment is a fraud upon creditors of firm, and

may be set aside as to them in collateral proceeding.... 366
Real estate held in name of firm and bought with its

funds is not thereby converted into personalty; in
order to effect such conversion as against strangers
and creditors of the individual partners, it is necessary
that deed should expressly state that it is held as part-
nership property, or there must be actual notice to

One who holds judgment against an individual who is

member of firm is entitled to revival thereof, as ngainst
terre-tenant, who is assignee for benefit of creditors of
firm in question ....

One member of partnership, to whom others have trans-

ferred their interest in partnership property and claims
cannot sue and recover, debt which was owing to firm,
in his own name...

PATENTS. Under an agreement or license to use a pat-

ent, the licensee, after a time, ceased to pay the royal-
ties, whereupon suit was brought against him and he
successfully defended on the ground of want of novelty;
Held, that until the patent was so declared by a court
of competent jurisdiction, he was bound to pay the

Whatever right to use a patented machine the defend-

ant in an execution may have, passes with the machine
to the purchaser upon a sale thereof by the sheriff...... 327

PLEADING. See Amendments.
It is not necessary to join the husband in a suit against

a married womnan doing business under the Act of 1872.. 172
POWER. A power of attorney, or any other instrument

of the same nature, unless coupled with such an inter-
est as to render it irrevocable, ceases upon the death
of the donor of the power or when the purpose of its
creation has been fully executed......

PRESUMPTION OF LAW. When malice presumed
from reckless and wanton act..

PRINCIPAL AND AGENT. Where bank account is

opened in naine of one as agent, in which is deposited
money belonging to different principals, it is not nec-
essary that names of the principals should be desig-
nated on face of deposit to preserve fund for them as
against general creditors of agent.....

Where a factor is instructed to sell goods upon credit,

and that his principal will dispose of the note of the
purchaser, the factor will be liable for the amount of
the note, if, instead of transmitting it to his principal,
he takes it in his own name and has it discounted

Who are, in certain cases of fire insurance.

Whatever an agent says or does in the transaction of the

business he is employed to perform may be given in
evidence to affect his principal. But declarations
made afterwariis cannot be so used...

An agent is liable personally to a party with whom he

deals, (1) where he makes a false representation of his
authority with intent to deceive; (2) where with
knowledge of his want of authority, but without iu-
tending any fraud, he assumes to act as though he
were fully authorized, and (3) where he undertakes to
act bona fide, believing he has authority, but in fact
has none..

The authority of an agent cannot be established by

proof of declarations of agent, whether made under
oath or not..

PRINCIPAL AND SURETY. Character of relation

of, and duties of co-sureties.
PROMISSORY NOTES. A notice of protest enclosed

in an envelope properly stamped and directed to the
post-office address of the endorser, and handed to a let-
ter carrier, whilst in the discharge of his official duties,
for mailing, is sufficient evidence of mailing the no-
tice of protest to fix the liability of the endorser,
whether he received the notice or not...

Christian name of payee made by the promissor after

note had been signed by himself and surety, but with-
out the knowledge or consent of said surety, will not
release latter from his liability on said note, said al-
teration being immaterial, and placing on him no
responsibility to which he was not subject before the

Interest on note, which, by its very words, is payable in

gold, is payable in gold or its equivalent in legal ten-
der notes. Such payment is not usurious.....

PRACTICE. See Courts-Errors and Appeals.
Proper method to be pursued by assignee in bankruptcy

to contest the right of surety of the bankrupt to appro-
priate collaterals.

Proper practice in Courts of Common Pleas, on “rules to

show cause,” is to take depositions in support of such
rules. Unless this is done, the rules will be discharged
at argument, even though no answer may have been

Orphans' Court may, on settlement of guardian's ac-

count, fix compensation of attorney employed to pros-
ecute action....

How bankrupt must proceed when discharged judgment
note is subsequently entered against him.

In a legal proceeding the court has nothing to do with

equitable plaintiff to whose use it is marked, unless
some defense is shown as against him...

Advantage of errors in the trial of a criminal case must

be taken at the time such error is comunitted, by ex-
cepting thereto, having the judge note the same, and
then atfix his seal before record is removed..

Under sheriffs' Interpleader Act......

It is discretionary with the court to recommend special

verdict and its refusal cannot be reviewed on error...... 187
The circumstances which subject foreign corporations to

be sued in Pennsylvania courts, need not be set forth
in the precipe or summons.

The return of service of such summons is conclusive be-

tween the parties, which the court cannot set aside
upon extraneous evidence.....

Service of summons on othicer of foreign corporation,

when casually present in this state, in a case where
such corporation is not suable in our courts, the de-
fendant must file a plea to the jurisdiction..

Matters of claim and account, which the parties do not

agree to treat as payment, must be enforced by the
tenant, either under the Defalcation Act before a jus-
tice of the peace or by separate suit...


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