Imágenes de páginas

Atl. 1084, holding prohibition against liens operative in spite of other provisions protecting owner against liens; Rhine v. Mauk, 21 Pa. Co. Ct. 345, 14 Montg. Co. L. Rep. 198, holding contractor's stipulation against liens binding though written contract embodying provision not executed at time; McElroy v. Braden, 152 Pa. 81, 31 W. N. C. 198, 25 Atl. 235, holding parol stipulation of contractor against liens binding on subcontractors; Benedict v. Hood, 134 Pa. 292, 19 Am. St. Rep. 698, 19 Atl. 635, holding change of building plans does not alter obligation of subcontractor's bond to owner for performance without filing liens; Bohem v. Seabury, 141 Pa. 597, 21 Atl. 674, holding successor to contracting partnership cannot file lien under contract without showing assignment thereof; Bevan v. Thackara, 143 Pa. 200, 28 W. N. C. 477, 24 Am. St. Rep. 529, 22 Atl. 873, holding material man cannot recover for supplies to stable on claim against house, where they were erected under separate contracts of which owner was ignorant; Commonwealth Title Ins. & T. (o. v. Ellis, 44 W. N. C. 429, holding stipulation against filing liens by subcontractor “or any person" precludes contractor, though owner otherwise protected against him.

Cited in footnotes to Smith v. Neubauer, 33 L. R. A. 685, which authorizes lien for materials furnished to subcontractors as well as to contractors; Hightower v. Bailey; 49 L. R. A. 255, which sustains lien to subcontractors or material men irrespective of notice of claim or state of account between owner and principal contractor; Steger v. Arctic Refrigerating Co. 11 L. R. A. 580, which holds lien for laying pipes on land of strangers for refrigerating company enforceable against entire plant of company.

Cited in notes (12 L. R. A. 35) on priority of mechanics’ lien over subsequent liens; (20 L. R. A. 565) on payment to contractors or subcontractors as affecting liens of subordinate claimants; (13 L. R. A. 703) on legislative intent in New York mechanics’ lien law of 1885.

Distinguished in Evans v. Grogan, 153 Pa. 122. 25 Atl. 804, and Loyd v. Krause, 147 Pa. 403, 23 Atl. 602, holding filing of lien not precluded by contract exempting owner from personal claim, and providing that final payment shall be with held until "complete release of liens;" Schmid v. Paim Garden Improv. Co. 162 Pa. 217, 34 W. N. C. 463, 29 Atl. 727; Murphy v. Morton, 139 Pa. 346, 20 Atl. 1049; Murphy v. Ellis, 11 Pa. Co. Ct. 303, ? Pa. Dist. R. 399, holding contract for building and delivery of house free of liens does not preclude material man from filing same; Taylor v. Murphy, 148 Pa. 340, 30 W. N. C. 28, 33 Am. St. Rep. 825, 23 Atl. 1134, holding contractor's agreement to "release and discharge” property of liens does not prevent filing of same; Jarvis v. State Bank, 22 Colo. 316, 55 Am. St. Rep. 129, 45 Pac. 505, holding subcontractor not precluded from filing lien by contractor's waiver of lien and agreement to defend owner therefrom; Willey v. Topping, 146 Pa. 430, 23 Atl. 335, holding material man not affected by contractor's release from liens executed after original contract, though before materials supplied; Cook v. Murphy, 150 Pa. 43, 30 W. N. C. 336, 24 Atl. 630, holding supplementary contract does not affect lien under original contract, where not brought to subcontractor's notice; McCollum v. Riale, 163 Pa. 608, 43 Am. St. Rep. 816, 30 Atl. 282, holding material man entitled to lien though owner secretly sold property and agreed to build without permitting liens; Aste v. Wilson, 14 Colo. App. 326, 59 Par. 846, upholding subcontractor's right to file lien where contractor has right thereto, though contract prohibits same in favor of subcontractor: Ditto v. Jackson, 3 Colo. App. 283, 33 Pac. 81. holding complaint on foreclosure of mechanic's lien not demurrable where owner's indebtedness to contractor alleged; Connell v. Ker, 9 Pa. Dist. R. 146, 17 Lanc. L. Rev. 207, holding builder's contract duly recorded not part of court record on motion to strike off subcontractor's lien; Richards v. Waldron, 9 Mackey, 590, holding lien of unrecorded trust deed superior to subsequent mechanics' liens; Keim v. McRoberts, 18 Pa. Super. Ct. 170, holding description of building in contract as old or new not binding on subcontractor in filing lien.

Disapproved in Miles v. Coutts, 20 Mont. 50, 49 Pac. 393, holding contractor's stipulation against liens does not preclude same by subcontractor not assenting to contract. Constitutionality of mechanic's lien law.

Cited in Barrett v. Millikan, 156 Ind. 514, 83 Am. St. Rep. 220, 60 N. E. 310, holding statute creating mechanics' liens not taking of property without due process of law; Jones v. Great Southern Fireproof Hotel Co. 30 C. C. A. 116, 58 C. S. App. 397, 86 Fed. 378, holding statute giving subcontractor lien to extent of contract price irrespective of payments to contractor on terms of contract constitutional; Mallory v. La Crosse Abattoir Co. 80 Wis. 186, 49 N. W. 1071 (dissenting opinion), majority holding statute giving material man lien irrespective of contractor's agreement on payment to contractor by owner constitutional.


Cited in McCaul's Estate, 28 Pa. Co. Ct. 172, holding compensation for engineer's plans for building dependent upon acceptance by owner, under special terms of contract.

7 L. R. A. 715, PEOPLE ex rel. KEMMLER v. DURSTON, 119 N. Y. 569, 16 Am.

St. Rep. 859, 24 N. E. 6.
Presumption of constitutionality of statute.

Approved in McGrath v. Grout, 69 App. Div. 315, 74 N. Y. Supp. 782, bolding that legislature will be presumed to have acted within limits of authority in passing act; Rathbone v. Wirth, 150 N. Y. 509, 34 L. R. A. 426, 45 N. E. 15, Affirming 6 App. Div. 284, 40 N. Y. Supp. 535 (dissenting opinion), as to necessity of upholding statute unless clearly and substantially in conflict with constitution; Bell v. Gaynor, 14 Misc. 339, 36 N. Y. Supp. 122 (dissenting opinion) as to presumption in favor of constitutionality of act;. New York v. Chelsea Jute Mills, 43 Misc. 269, 88 N. Y. Supp. 1085, upholding constitutionality of act prohibiting employment of children under fourteen years of age during school terms; People v. Lochner, 177 N. Y. 159, 69 N. E. 373, upholding constitutionality of act limiting hours of labor in bakeries; Tenement House Department v. Moeschen, 89 App. Div. 536, 85 N. Y. Supp. 704, upholding constitutionality of act requiring tenement house school sinks to be replaced by individual water closets; People ex rel. Metropolitan Street R. Co. v. State Tax Comrs. 174 N. Y. 446, 63 L. R. A. 894, 67 N. E. 69, holding right local selfgovernment not violated by imposing duty of assessing tax on special franchises nipon state officers. Extrinsic evidence of unconstitutionality of act.

Cited in Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 360, 14 L. R. A. 485, 28 N. E. 358, holding that purpose of legislature to appropriate public money for benefit of individual cannot be determined by court on testimony of expert witness where the act itself states purpose to be enlargement of public canal.

Cited in note (14 L. R. A. 459) as to consideration of extrinsic evidence to show unconstitutionality of statute. Cruel and unusual punishments.

Approved in Storti v. Com. 178 Mass. 553, 52 L. R. A. 522, 60 N. E. 210, holding electrocution not cruel or unusual punishment; People v. Kemmler, 119 N. Y. 586, 24 N. E. 9, raising without deciding question of validity of sentence to death by electrocution.

Cited in footnote to Com. v. Murphy, 30 L. R. A. 734, which sustains statute imposing imprisonment for life for criminal intimacy with girl under sixteen.

Cited in note (35 L. R. A. 575) as to cruel and unusual punishments. Conclusiveness of decision against constitutionality.

Cited in note (39 L. R. A. 457) as to decision against constitutional right as a nullity subject to collateral attack.

7 L. R. A. 717, PEOPLE v. DETROIT, G. H. & M. R. CO. 79 Mich. 471, 44

N. W. 934.
Fencing track and maintaining gates.

Cited in Louisville, N. A. & C. R. Co. v. Hughes, 2 Ind. App. 78, 28 N. E. 158, holding object of statutes requiring railroads to fence is as much to diminish danger of travel as to provide compensation for animals injured.

Cited in footnote to Pittsburgh, C. C. & St. L. R. Co. v. Crown Point, 35 L. R. A. 684, which denies power of town to compel railroad company to keep watchman and maintain gates at crossing at own expense.

Cited in note (39 L. R. A. 619) on municipal control over nuisances created by railroads on highways.

7 L. R. A. 720, LANG v. SALLIOTTE, 79 Mich. 505, 44 N. W. 938. When arbitration permissible.

Cited in McCord v. Flynn, 111 Wis. 87, 86 N. W. 668, holding submission of controversy involving specific performance of contract to convey interest in land in compensation of services not void under statute forbidding submission as to claim to estate in fee or for life.

Cited in note (17 L. R. A. 211) on submission to arbitration,

7 L. R. A. 722, HANFORD v. ST. PAUL & D. R. CO. 43 Minn. 104, 44 N. W. 1144. Waters; title and rights of riparian proprietor.

Cited in footnote to Webb v. Demopolis, 21 L. R. A. 62, which holds riparian owner's title extends to low-water mark on navigable river.

Cited in notes (12 L. R. A. 677) on title to soil under navigable rivers; (12 L. R. A. 636) on qualified property in water front; (40 L. R. A. 647) on private contracts respecting wharves. Separation of riparian rights from shore lands.

Cited in Bradshaw v. Duluth Imperial Mill Co. 52 Minn. 62, 53 N. W. 1066, holding sale of submerged land by riparian proprietor disassociates shore land from riparian right; Gilbert v. Eldridge, 47 Minn. 214, 13 L. R. A. 413, 49 N. W. 679, holding where land platted beyond shore line, conveyance of inland block with reference to plat does not carry with it right to submerged blocks and streets; Concord Mfg. Co. v. Robertson, 66 N. H. 20, 18 L. R. A. 690, 25 Atl. 718, holding abutter's private right of use and occupation in public water is severable from estate in upland; Northern P. R. Co. v. Scott & H. Lumber Co. 73 Minn. 32, 75 N. W. 737, holding riparian rights originally belonging to shore block marked on plat, may be severed therefrom and attached to submerged land; Duluth v. St. Paul R. Co. 49 Minn. 209, 51 N. W. 1163, holding riparian proprietor may convey fee in' land above shore line, and reserve private rights in land under water originally appurtenant to estate; Gibson v. Kelly, 15 Mont. 424, 39 Pac. 517, holding riparian proprietor may maintain action for recovery of land between high and low water mark from one in possession without right.

Cited in note (40 L. R. A. 394) on separation of riparian rights from upland.

Distinguished in State v. St. Paul & D. R. Co. 81 Minn. 424, 84 N. W. 302, holding riparian rights are incident to shore property, having no separate existence until severed from paramount estate by act of owner; Lake Shore & M. S. R. Co. v. Platt, 53 Ohio St. 267, 29 L. R. A. 55, 41 N. E. 243, holding alvean rights are incapable of separation from riparian title to which they are incident. Riparian rights follow conveyance of riparian estate.

Cited in Minneapolis Trust Co. v. Eastman, 47 Minn. 304, 50 N. W. 82, holding conveyance of submerged land above low-water mark carries with it right to subsequent alluvial deposits; Mills v. Evans, 100 Iowa, 716, 69 N. W. 1043, holding riparian owner on navigable lake may construct pier below high-water mark.

Cited in footnote to Prior v. Swartz, 18 L. R. A. 668, which holds riparian right to build wharves not destroyed by statute designating land for planting oysters.

Distinguished in St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 367, 42 L. ed. 504, 18 Sup. Ct. Rep. 157, holding grant of right to maintain dams and sluices in river subject to rights of navigation, and right of public to divert waters for public use.

7 L. R. A. 729, GARDNER v. BUNN, 132 Ill. 403, 23 N. E. 1072. Proof of execution of power of attorney or confession.

Cited in Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 316, 58 N. E. 994, Affirming 89 Ill. App. 585, and Oppenheimer v. Giershofer, 54 Ill. App. 41, holding judgment by confession invalid without proof of execution of power of attorney; l'irst Nat. Bank v. Havens & G. Co. 61 Il. App. 225, stating proof of execution of power of attorney was filed in compliance with rule announced in main

case; Epstein v. Ferst, 35 Fla. 514, 17 So. 414, holding judgment entered without proof of execution of confession of judgment invalid; Matzenbaugh v. Doyle, 156 Ill. 335, 40 N. E. 935, Affirming 56 ml. App. 345, holding authority of attorney to execute cognovit and of clerk to enter judgment should fully appear from papers, and cannot be supported by evidence aliunde. What must be Aled.

Cited in People v. Whitehead, 90 Ill. App. 620, holding there must be filed with clerk declaration, original warrant of attorney, affidavit verifying it, and plea confessing amount for which judgment is entered; Snyder Bros. v. Bailey, 165

111. 453, 46 N. E. 452, holding clerk authorized to enter judgment on declaration, warrant of attorney valid on its face, proof of its execution and plea of confession.

Cited in note (13 L. R. A. 800) on proof necessary to authorize entry of judgment confessed on warrant of attorney. Strict construction of power.

Cited in Graves v. Whitney, 49 111. App. 442, holding authority to confess judg. inent without process must be clearly given and strictly pursued; J. W. Butler Paper Co. v. Robbins, 151 Ill. 624, 38 N. E. 153, holding power conferred by resolution on president of corporation to borrow money and secure its repayment should be strictly construed. Appearance by attorney as conferring jurisdiction.

Cited in Ward v. White, 66 Il. App. 157, holding jurisdiction of person acquired by entry of appearance by attorney in fact. Confession statutory proceeding.

Cited in Pond v. Simons, 17 Ind. App. 87, 45 N. E. 48, as holding confession of judgment in vacation statutory proceeding in derogation of common law. Replevin.

Cited in note (55 L. R. A. 281) on right to replevy property from levying cfficer.

7 L. R. A. 731, MOORE v. THORP, 16 R. I. 655, 19 Atl. 321. Allowance for improvements.

Followed in Langley v. Langley, 19 R. I. 506, 36 Atl. 1133, holding cotenant may be allowed value of improvements in case of sale or division of property.

Cited in Carson v. Broady, 56 Neb. 654, 71 Am. St. Rep. 691, 77 N. W. 80, holding on partition improvements should be allotted to tenant making them; and on sale proceeds should be divided after deducting sum in which saleable value increased by improvements; Ward v. Ward, 40 W. Va. 621, 29 L. R. A. 461, 52 Am. St. Rep. 911, 21 S. E. 746, holding on sale coparcener making improvements should receive amount by which value of property is enhanced and balance should be divided; Pulse v. Osborn, 30 Ind. App. 636, 64 N. E. 59, raising, but not. deciding, question whether cotenant entitled, upon partitior, sale, to be recompensed for actual amount of present value due to improvements.

Cited in notes (8 L. R. A. 290) on allowance for improvements; (29 L. R. A. 449, 450, 452) liability of cotenants for improvements.

7 L. R. A. 733, STATE ex rel. TAYLOR v. EIDSON, 76 Tex. 302, 13 S. W. 263. Incorporation as affected by inclusion of farming on vacant land.

Followed in Ewing v. State, 81 Tex. 177, 16 S. W. 872, holding incorporation invalid which embraced area of 10 square miles, 8 of which was farming and unoccupied land.

Cited in State v. Baird, 79 Tex. 64, 15 S. W. 98, holding incorporation of town will not be dissolved because small strip of agricultural land included within its limits; McClesky v. State, 4 Tex. Civ. App. 323, 23 S. W. 518, holding attempt to include unreasonable amount of vacant land will annul attempted incorporation; Copeland v. St. Joseph, 126 Mo. 433, 29 S. W. 231, holding inclusion of reasonable amount of agricultural land permissible; State ex rel. Perrin v. Hoard,

« AnteriorContinuar »