MECHANICS' LIEN-(Continued.)
the time the last materials for it were furnished. The subsequent furnishing
of materials for the other building will not extend the time for the filing of the
lien for the materials furnished for the first building. Hudnit vs. Roberts, 535.
3. When a mechanics' lien which is defective has been filed, and the property
against which it is entered is sold by the sheriff before the expiration of the
six months allowed by law for filing the lien of a mechanic, the claim may be
made upon the fund with the same effect that it could be made, if a lien sufficient
in form and substance had been entered of record before the sale. Schrader vs.
Burr, 620.
MORTGAGE. See SHERIFF'S SALE.
A mortgage given by a corporation on its leasehold interest, machinery and
fixtures, and no objections made against its validity by the company, cannot be de-
feated by an assignee in bankruptcy of the company on his affidavit that it was
given without due authority. Lewis vs, Phila. Axle Works, 334.
MUNICIPAL CLAIMS. See EVIDENCE, 13.
NUISANCE. See EQUITY, 32, 33.
1. The power of the board of health does not extend to the removal of tenants
from their houses, and closing up the latter, unless justified by the existence of a
pestilential disease.-Such action will be restrained by injunction. Eddy et al.
vs. Board of Health, 94.
2. A special injunction to restrain the erection of a proposed abattoir and
slaughtering-house, will not be granted where the affidavits do not establish the
fact that they will be a nuisance. Sellers et al. vs. Railroad et al., 319.
3. A Chinese laundry in a basement so conducted as to injure the trade of a
tradesman in the next story may be such a nuisance as equity will interfere to
prevent damage from. Warwick vs. Wah Lee & Co., 160.
4. The business of a gold or silver beater, set up in a quiet dwelling neighbor-
hood and by its noise and concussion unreasonably interfering with the quiet en-
joyment, and perhaps safety, of neighboring property, is a nuisance which equity
will restrain. Wallace vs. Auer, 356.
5. The unauthorized occupation of a street by railway tracks is a nuisance per
se, which equity will restrain upon information of the attorney-general, without a
preliminary trial at law. Attorney-General vs. Railroad, 352.
1. The court not considering the verdict against the evidence or the weight of
the evidence will not grant a new trial. Comm. vs. Rogers, 187.
2. Where the judge mistook the evidence in his charge a new trial will be
granted. Comm. vs. Taylor, 184.
3. Evidence of alleged insanity of prisoner is ground for a new trial. Comm.
vs. Smith, 189.
Registers' courts having been abolished and "all their powers and jurisdiction”
having been transferred to the Orphans' Court by Article V., section 22, of the
Constitution, it is the duty of the register when any "disputable or difficult mat-
ter" arises before him in the probate of a will, upon the request of either party,
to transmit the proceedings to the Orphans' Court for adjudication, and this duty
is enforceable by mandamus. The right to remove the proceedings in such case
given by the 25th section of the act of 1832, is not taken away by the new Consti-
tution, but the Orphans' Court is substituted in the place of the register's court.
Comm. ex rel. vs. Člark, 419.
PARENT AND CHILD. DIVORCE, 10.
A father never having abandoned his child, nor legally committed its control to
others, has the right to appoint a testamentary guardian. Comm. ex rel. vs.
Hearne et ux., 199.
PARTNERSHIP. See EQUITY, 3.
1. The agreement of partners to make real estate part of the common stock
must be in writing, and ought to appear of record. Harding vs. Devitt et al., 95.
2. The name of a firm of special partners—“Bullock's Sons"—the special part-
ners being brothers of the general partners, does not make them liable as general
partners, the sign required by the act of 1868 being properly exhibited. Villas
Bank vs. Bullock et al., 309.
3. After dissolution of a partnership and payment of its debts, if there is no
special agreement, each partner should be paid ratably his advances. Christman
vs. Baurichter, 115.
4. A partner cannot be indicted for forgery of an instrument in writing with in-
tent to defraud the copartnership. Comm. vs. Brown, 184.
5. W., N. & R. formed a copartnership for the single purpose of erecting a fur-
nace for the Emaus Iron Company. They borrowed for partnership purposes
$15,000 from the Miners' Trust Company Bank, for which they gave their joint
judgment obligation, and also deposited with the bank stock of the Emaus Iron
Company as collateral security. The partnership was dissolved before the work
was completed, and a short time thereafter W. was declared a bankrupt. His
assignee in bankruptcy sold his real estate, at which time notice was given of the
above judgment. On petition presented by the purchaser for a rule to show cause
why the real estate bound by the lien of said judgment, including that of N. and
R., should not be sold in the proportion or in the succession, that the owners were
liable to contribute to the payment of said judgment, otherwise on the payment of
the judgment, that the Miners' Trust Company Bank might be compelled to assign
the judgment and the collaterals for such uses as the court might direct.
Held: 1. That as between the original parties, until there was a final settlement
of the partnership business, the court would not subrogate W. to the rights of
the plaintiff in the judgment notwithstanding the agreement of N. and R. to pay
the partnership debts, it being alleged that the partnership transactions were un-
settled, that W. was a debtor to N. and R. in a large amount, and that the con-
sideration for the promise of N. and R. to pay said partnership debts had failed.
2. That the purchase of the real estate, having been made with notice of the judg
ment, was made subject to its payment by the purchaser, and that he had no
claim to subrogation or contribution. Bank vs. Wren et al., 502.
1. When the foundation of a wall is partly on plaintiff's and partly on the
adjoining land, although the wall after it rises is all on defendant's land, still it
will be considered a party-wall and subject to the rules concerning party-walls.
Gordon vs. Milne, 15.
2. Easements or servitudes which are apparent and continuous, and which are
technically extinguished or put to sleep by unity of title, and are allowed to re-
main undisturbed, revive upon severance. Hurlburt vs. Firth, 135.
3. The act of May 20, 1857, applies to a division wall, as well as to a PARTY-
WALL. Id.
4. A erected a wall on his own lot and partly on the adjoining lot, which he
subsequently purchased; he afterwards sold the built-up lot, reserving the half of
the party-wall nearest to the vacant lot, and also sold the vacant lot to another
person. Held, that A did not thereby dispose of his interest reserved in the wall,
as it was a party-wall. If the wall had been wholly laid upon the land of the
plaintiff, it could not be considered a party-wall. Beaver vs. Nutter, 345.
PASSENGER RAILWAYS. See CITY OF PHILADELPHIA, 1, 2, 3, 4. ROADS AND
STREETS, 3, 4. PUBLIC BUILDINGS COMMISSION.
1. A railway cannot occupy a street with its track, even temporarily, unless
such right is clearly conferred by its charter. Attorney-General vs. Railroad, 352.
2. The councils of a city cannot confer such right; but only the people of the
whole State by their Legislature. Id.
3. The unauthorized occupation of a street by railway tracks is a nuisance per
se, which equity will restrain, upon information of the attorney-general, without
a preliminary trial at law. Id.
4. The act incorporating the defendants authorizing them to extend their road
at any time, repeals the 19th section of the act of 1849, as far as it applies to them.
Railway vs. Railway, 75.
1. An action for an infringement of a patent survives against an administrator.
Smith vs. Baker's Administrators, 221.
2. A mistake in the Christian name of a grantee of a patent will not render the
patent invalid, if his identity is otherwise established. Extinguisher Co. vs. Ex-
tinguisher Co., 227.
3. The grant of letters of administration by a competent court will be presumed
to be regular. Also the reissue of the patent to the administrator of the patentee.
Id.
4. The patentee having assigned the patent before his death, his administrator
is trustee for the assignee, and the heir is not a necessary party to an action for
infringement. Id.
5. The record of a rejected application to the patent office, the specifications,
models, etc., are admissible in evidence on a question of novelty of invention. Id.
6. Graham having invented, and in 1853 perfected, a practical mode of extin
guishing fires by the combined agency of carbonic acid gas and water, the inven-
tion of Carlier and Vignon is invalid from want of novelty. Id.
7. The mechanical combination of appliances for generating carbonic acid gas
claimed by Carlier and Vignon, are not novel, having been invented by Nichols
in 1854, and applied to the production of soda water. Id.
8. Under cover of securing his own invention, a patentee cannot expand his
claim so as to embrace the invention of another; the consequence of such an at-
tempt is to imperil his title to the product of his own mechanical skill. Screen
Co. vs. Boughton, 251.
9. The patent of the Locomotive Engine Safety Truck Company is not invalid
for want of novelty in the invention, for, when in combination with a locomotive
engine, it is substantially a different truck from any other in use. This combina-
tion is a patentable invention. Truck Co. vs. Railroad, 252.
10. The mere forbearance to apply for a patent during the progress of experi-
ments, and until the party had perfected his invention and tested its value by
actual practice, affords no just ground for presuming an abandonment. Id.
11. Burrows' patent for a furnace to be used in the manufacture of white oxide
of zinc, not upheld, as he was not the first inventor. Burrows vs. Zinc Co., 262.
12. On bill filed for an account, and to restrain defendants from the use of pat-
ents under a license alleged to have been fraudulently granted, an injunction order
was made by virtue of the 7th section of the act to further the administration of
justice, approved June 1, 1872, (17 Stat. 197,) enjoining the defendants from mak-
ing or vending any fruit jars containing the improvements secured by said letters
patent, until the decree of the court upon the motion for an injunction.
Application made to the court to modify the injunction order so as to allow de-
fendants to complete certain contracts for jars, upon the tender of security to the
complainant for all damages, and on the affidavit of one of the defendants, that
they had purchased the right to manufacture and sell under the license, in good
faith, and without notice of the alleged fraud.
The application was refused; the court holding-
That all the rights of defendants in the patents were acquired under an agree-
ment, which, in effect, was an attempt to apportion or subdivide the right to use
the patents, between a licensee and his grantee; and that whatever may be the
law, in regard to the assignment of the entirety of a license, by a licensee, the
right to apportion the same among different purchasers did not exist, and such
apportionment was void. Jar Co. vs. Whitney, 268.
13. That as it appeared by the bill, and by the admissions of one of the de-
fendants in his affidavit, that defendants had received notice of pending suit, set-
ting up fraud in their grantors in claiming said patent, their appeal to the equit
able powers of the court to allow them to fulfil certain contracts, not listened to,
until they should show that said contracts were entered into before they received
the said notice. Id.
14. That where the owner of a patent relies upon the use of the monopoly of the
invention, and not on the sale of licenses, for his gains and profits, he is not con-
pelled to accept the security which the bond of an infringer may give, in lieu of
the protection afforded by the injunction of the court. Id.
15. That in the absence of fraud, in obtaining the control of the patents, the
defendants may be protected by security from the complainant against all losses
and damages sustained from the interruption of their business, if the court should
ultimately hold, that the injunction order was improvidently issued. Id.
PENALTIES. See CRIMINAL LAW, 6.
1. A proceeding, however, to recover a fine for the violation of a borough or city
ordinance is not a summary proceeding; it is of a civil nature, and is to be con-
ducted according to rules applicable to civil suits. Where the penalty goes to the
city or borough, the corporate name of such city or borough should be used as
plaintiff; where it goes to the person suing, the corporate name of the city or
borough for the use of the informer, naming him, must appear as plaintiff'; but
where the action is qui tam, a part of the penalty going to the informer, and a
part to the city or borough, the informer must be named as plaintiff, suing for
himself as well as for the city or borough. Comm. vs. Davenger, 478.
2. Where, however, an offence is created by statute, and, on conviction, a penalty
is imposed, to be recovered by any person suing for the same, as debts of like
amount are by law recovered, the proceedings should be by summons in debt, in
the name of the Commonwealth for the use of the party suing, followed by judg-
ment for the penalty, if the evidence establishes the guilt of the accused. Id.
PLEADING. See PRACTICE. DIVORCE. LANDLORD AND TENANT.
PRACTICE. See ACTION. ATTACHMENT. AFFIDAVIT OF DEFENCE. ALDERMEN
AND JUSTICES. TURNPIKES. CONSTITUTIONAL LAW, 7.
1. Where a statement of the record of an assignment refers to a book which is not
in the recorder's office, the mistake is fatal to the action. Croasdale vs.
Brown, 12.
2. An inquisition to compel a turnpike company to open its gates, because it is
not in such good and perfect order as required by the act of 1803, must be in strict
conformity with the requirements of the act. In re Turnpike Company, 59.
3. A certiorari is not a supersedeas to a writ of possession issued upon proceed-
ings under the act of March 21, 1772. Ins. Company vs. DeCoursey, 88.
4. A return of nulla bona is not sufficient to found a bill under the act of 1863,
making the officers of certain corporations liable in equity for their debts. The
return must set out that no real or personal property of the corporation was ex-
hibited to the officer, sufficient to satisfy the debt, as required by the act. Bacon
vs. Morris, 93.
5. When the plaintiff sues as a public officer, the character of the work done and
materials furnished should appear affirmatively on the record. Cloud vs. Tatlow,
6. Judgment cannot be taken for want of a sufficient affidavit of defence where
the plaintiff was dead at the time of the issuing of the writ and the writ was
not amended till after judgment day. Lynch vs. Kerns, 335.
7. A fi. fa. was indorsed interest "from December 30, 1873," the facts being that
12 per cent. interest had been paid for that year: Held, that a rule would be
granted to correct the said indorsement to "interest from December 30, 1874."
Crosdale vs. Cadwallader, 343.
The application was made by the terre tenant, and the court held that he was
entitled to take credit for the excess of legal interest. Id.
8. A writ may be made returnable in Philadelphia county to the first or the third
Monday in September. Association vs. Gardiner, 361.
9. Judgment for want of an appearance can only be taken after fourteen days
have expired after service. Id.
10. In a sci. fa. sur mortgage no narr need be filed in order to take judgment for
want of an appearance. Id.
11. In taking a judgment for want of an appearance on a return of two nihils
on a sci. fa. sur mortgage, the fourteen days must be calculated from the return day
of the writ, and not from the teste of the writ. Faunce vs. Subers, 411.
12. A summons returned nihil habet, and an alias served, constitute but one
case, and a fi. fa, issued under the term and number of the original is not im-
proper. Shaw vs. Kenath, 444.
13. A fi. fa. and attachment execution may both issue and be pursued at the
same time, and plaintiff will not be compelled to elect upon which he will proceed
unless property is seized under either sufficient to pay the judgment. Id.
14. Judgment entered against administrators in a suit upon a contract of their
decedent for want of an affidavit of defence, is irregular and void, and will be
stricken off on motion. Wright's Executors vs. Cheyney's Administrators, 469.
15. A rule to show cause must not be predicated upon a mere abstraction, nor
upon any colorable pretext invented for the purpose of pumping the court, but
upon something actual and pertinent; which, when determined judicially, shall
control the subject-matter involved. Washburn vs. Baldwin, 472.
16. A case stated, whether the action has been instituted by amicable agree-
ment or by process issued, must contain a full and certain statement of all the facts
belonging to the case; so that when a judgment is entered thereon, it shall be
capable of enforcement to the same extent as though reached by the verdict of a
jury. Id.
17. A rule to show cause, and a case stated, must be real, never suppositi-
tious. Id.
18. Any attempt to obtain the opinion of the ccurt upon a question of law,
through the instrumentality of a mere supposititious case, is reprehensible, and
the parties offending may be punished for a contempt of court. Id.
19. A defendant is entitled to the benefit of the exemption law in a proceed-
ing commenced by attachment under the act of 17th March, 1869, if the original
demand be founded on contract. Id.
20. A husband confessed judgment to his wife, and she issued a fi. fa. against
his personal estate, which was lodged in the sheriff's hands a few moments before
a creditor's fi. fu. Held, that she could not issue such execution. In re Marvin,
21. A joint action against three. Award against two and in favor of the third,
Appeal by the two. No appeal as to the third. Subsequent proceedings against
the two. On the trial the signature of third defendant admitted to be forged.
Held, that the record might be treated as amended and a verdict against the two
sustained. School District vs. Bilborough, 542.
22. Where a claimant in a sheriff's interpleader files a narr within fourteen days,
as required by the rule of court, but neglects to give the bond, the court, on mo-
tion, will order the sheriff to sell and pay the proceeds of the sale into court to
abide the determination of the issue. Dillon vs. Conover, 450.
23. On a judgment obtained in the Common Pleas, either by adversary action
or by confession, which, without costs, shall not amount to more than one hundred
dollars (the plaintiff not having previously filed the required affidavit), costs of
execution will be allowed. Davenport vs. Williams, 575.
PUBLIC BUILDINGS COMMISSION.
1. The building commissioners have no right to obstruct the Market street rail-
road in their route along Market street. Railway vs. Perkins, 20.
2. The railroad company has no right to alter its course, nor can the commis-
sioners confer such right upon them. Id.
QUO WARRANTO. See BOROUGH, 3, 4.
1. An injunction will not lie to restrain the exercise of a public office. Quo
warranto is the remedy. Campbell vs. Taggart et al., 443.
2. Where the attorney-general is the relator, a writ of quo warranto will issue
in the first instance, and a preliminary rule to show cause should not be required.
Comm. ex rel. vs. Bunk, 156.
3. Private citizens having no particular or special interest to be affected, have
not the right to ask for a quo warranto to oust a member of councils. Comm. ex
rel. vs. Horne, 164.
4. A citizen who claims a seat in councils in place of one who has removed from
the ward, has sufficient interest to entitle him to a writ of quo warranto to deter-
mine the question of forfeiture. Comm. ex rel. vs. Bumm, 162.
RAILROAD. See CONSTITUTIONAL LAW, 9.
1. When a railroad takes private property for public use under the act of Feb-
ruary, 1849, and its supplement, they are bound to follow the provisions of the law
strictly. Any departure will render them trespassers. Railroad vs. Lawrence et al.,
604.
2. After entry and payment of damages or securing the same, the right of way
over the land vests in the company. After filing of the bond, the owner can
recover damages only. Id.
3. An owner within the purview of the act is one who has some interest in the
land at the time the injury was done. One who has acquired an interest therein.
either in fee or as tenant for years, or as lessee after the injury has been committed,
is entitled to no damages. Id.
4. If there be errors in the view or any part of the proceedings, the remedy
is to file exceptions in court, and if not sustained, to certiorari the proceedings.
When, however, an appeal is taken within the thirty days allowed by law to the
report of the viewers, all irregularities are waived, and all the requirements of the
statute are presumed to have been done. Id.
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