5. A bottler of "cider, perry, ale, porter, or beer" must make application to the court
upon petition, endorsed by twelve of his fellow-citizens, as a man of temperate habits, and of
good moral character. It must appear by certificate that such license is necessary, and before
the license is granted, he must give bond with sureties conditioned for the faithful observance of
the law regulating the sale of this kind of liquor. Com. v. Flacks, 1.
LIQUORS. See CONSTABLE. LICENSE.
1. Prior to the act of May 8, 1874, no time was fixed by law within which an inquisition of
lunacy must be traversed. In Re Lunacy of Truxton Benedict, 96.
2. The limitation fixed by that act is three months, within which a traverse is matter of
right, but after which period it is a matter resting in the discretion of the court. Id.
3. Circumstances under which this discretion will be exercised. Id.
MANDAMUS. See COMMON SCHOOLS. PLEADING and Practice.
1. On the hearing of a rule to show cause why a mandamus should not issue, the only ques-
tion is, whether the petition discloses sufficient ground for the allowance of the writ. Com.
ex rel. v. Norton, et al., 231.
1. A mandamus execution to enforce a judgment against a school district regularly does not
issue until allowed by court. Penn'a School Supply Co. v. Dennison School District, 64.
2. If regular in all other respects, this defect will not justify a treasurer in treating it as a
void writ. He should move to have it set aside. Id.
3. On a motion for attachment against a treasurer, it appeared that the writ contained no
command to him. Held, that the attachment could not issue. The command of the mandamus
must be directed to the directors and treasurer, not to the school district. Id.
MARRIED WOMEN. See CAPIAS. CERTIORARI. POOR.
1. The court has not jurisdiction to annul a decree constituting a married woman a feme sole
trader upon her own application. In Re Petition of Catherine Haman, 63.
2. Justices' record averring a claim for "family necessaries" is not sufficient to support a
judgment against a married woman unless it also avers a contract made by her. Stephens v.
Hadsell et ux., 66.
3. A married woman may, with the consent of her husband, adopt a child under the act of
May 4, 1855. In Re Forest's Application, 95.
4. The deposit of money arising from a husband's business, by the wife, in a bank in her
own name, even though it be with the husband's knowledge, is not presumptively a gift of the
money to her. McDermott's Appeal, 73.
5. The wife's possession of such money in bank is the husband's possession, and is not of
itself sufficient evidence of her ownership. Id.
6. The fact that the account for such money is in her name is no evidence of her owner
ship. Id.
7. A joint action of debt against a husband and wife for rent cannot be maintained, it not
appearing on the record that it was alleged or proved that the debt was contracted by her and
was for necessaries. Edwards et ux., v. Carr, 192.
8. It is not necessary that a married woman should actually be declared a feme sole trader
in order to render her liable on her contracts. Greacen v. Foster, 265.
9. As a general rule a married women's confession of judgment is absolutely void, and this
applies to a confession of judgment in an amicable action of ejectment to which the husband is
not a party. McMonegal, Assignee, v. Featherston, 507.
10. A decree in not essential to the enjoyment by a married woman of the privileges con-
ferred by the feme sole trader acts of 1718 and 1855. Id.
11. It seems that a married woman who, by reason of the desertion or drunkenness and
neglect of her husband, is entitled to the benefits of those acts, may confess a judgment in eject-
ment in favor of the vendor for land held by her under contract, without the joinder of her
husband. Id.
MASTER AND SERVANT. See NEgligence,
MECHANIC'S LIEN. See CONSTITUTIONAL LAW.
1. Laborers employed by a sub-contractor cannot file a lien. Ferren et ux. v. Perry.et
522.
2. A lien will not be stricken off upon proof dehors the record that the person named in the
claim as the contractor was not such. Id.
3. Where the contract was with a person, not the owner, the claim must show with reason-
able certainty that he bore to the owner the relation of contractor, architect or builder. Id.
4. The language of the claim was: "The person with whom said claimants contracted is
William Cool. The amount claimed to be due is forty dollars," etc. Held, that the lien was
defective on its face, because it did not aver that William Cool was the contractor, architect or
builder. Id.
1. A butcher having a slaughter house, and selling meat of his own killing in the public
market or from his wagon, is not liable to assessment for a license. But if, in addition, he deals
in cured or salted meats not of his own killing, to the extent of over five hundred dollars per
year in value, he is liable to taxation for license. Commonwealth v. Finnel, 340.
2. Persons styling themselves "butchers," but having no slaughter houses; who sell meats
in market, or otherwise, not of their own killing, but prepare and handle it after it has been
dressed, and cut it into suitable pieces for sale, are taxable for license as dealers in meat.
Commonwealth v. Bickings et al., 346.
3. Butchers having meat stores apart from their slaughter house premises are liable to assess-
Commonwealth v. Beener et al., 351.
MESNE PROFITS. See EJECTMENT.
MINES AND MINING. See WILLS.
1. The new mine law approved June 30, 1885, is a penal statute, and, as such, is to be
strictly construed, but its wise and benevolent purpose is not to be defeated by judicial refine-
ments, and an over-sensitive regard for possible doubts. Commonwealth v. Coonrad, 381.
2. Under Rule 8th of Article XII., if, by reason of noxious gases, or of any cause what-
ever, an anthracite coal mine has become dangerous, it is the duty of the mine foreman to com-
pel every workman to retire from the mine, and to remain out until after a proper examination of
its condition has been made. Failure do to this is negligence and a disobedience of the law. Id.
3. The nature and character of the duty and authority vested by this act in the mine fore-
man, and the responsibility of that officer for disasters which occur because of non-compliance
with the requirements thereof. Id.
MUNICIPAL CORPORATION. See SUMMARY CONVICTION.
1. The law of negligence as between employer and employee. Drew v. Gaylord Coal
Company, 207.
2. Where an injury happens to a servant in the use of machinery in the usual course of his
employment, of the nature of which he is as much aware as his master, and the use of which is
the proximate cause of the injury, the servant cannot recover. Id.
3. Nor does it vary the rule in this respect that the master has in use an engine or machine
less safe than some other which is in general use, or that there was another and safer mode of
doing the business. Id.
4. If the machinery be of an ordinary character, and such as can, with reasonable care,
used without danger to the employee, it is all that is required from the employer. This is the
limit of his responsibility and the sum of his duty. Id.
1. If the note appeared on its face to have been regularly negotiated before maturity, the
contrary could not be proved by the endorser in order to make way for his testimony as to mat-
ters of defense existing anterior to, and at the time of, the making or negotiation of the note.
Pardee v. Markle & Johns, 251.
2. In a suit by an endorsee against the maker, a release of the endorser by the maker would
not make him a competent witness for the latter to testify to facts invalidating the note, there
being no evidence aliunde that it was not negotiated before maturity. Id.
NEW TRIAL. See CRIMINAL LAW. PLEADING AND PRACTICE.
1. It is the duty of the court to grant a new trial where the verdict is clearly against the
weight of the testimony. Rothkofski v. Haddock, 485.
1. The court will not direct a resale of real estate for payment of debts on account of not
being properly advertised, unless the costs of resale are secured to be paid in case the property
should not bring an equal price on a resale. Forney's Estate, 29.
2. Proceedings in Orphans' Court should be according to equitable forms, by petition,
answer, and replication. Estate of Daniel Lee, 286.
3. The amount found due in the hands of an administrator was distributed by an auditor,
before whom a note payable to the decedent and signed by one of the heirs was presented, and a
claim made that the amount thereof should be deducted from the share in the estate of said heir.
The auditor held that he had no authority to make such deduction, and suggested that the ad-
ministrator make a demand for the debt when the heir called for his distributive share. No ex-
ception was taken to this ruling, and the report of the auditor was confirmed. The heir subse-
quently asked the Orphans' Court to issue a fi. fa. to collect from the administrator the amount
awarded him, which was less than the amount of note, whereupon the administrator resisted,
claiming the right to setoff said note against such distributive share. Held, that the confirma.
tion of the auditor's report was conclusive upon the parties interested, and that if any remedy
existed it was by review. Id.
4. An Orphans' Court sale will not be
the court, if no one offers more at a re-sale.
1. Notice in. Davis' Estate, qr.
set aside if fairly made on the terms prescribed by
Estate of William Wright, 442.
2. In an action of partition, where the plaintiff has filed his declaration, and the defendant
has filed his plea, a summary judgment quod partitio fiat is improper. Schwartz v. Hepler,
128.
3. The usual commissions allowed in proceedings to sell real estate in partition are two and
one-half per cent., and not five per cent., as in cases of general administration of personal estates.
Welch's Estate, 434.
1. Where a partnership is registered, a suit against the partners, not in the firm name, con.
not be maintained. McCahan et al. v. Gensemer et al., 40.
PARENT AND CHILD. See POOR.
PAYMENT. See ACCORD AND SATISFACTION. JUSTICE OF THE PEACE. SETOFF.
1. After the lapse of twenty years, mortgages, judgments, recognizances, and all evidences
of debt, are presumed to be paid. Peter's Appeal, 77.
2. Such presumption stands until rebutted, gathers strength as time advances, and cannot
be overcome by proof, vague and uncertain. Id.
3. A witness testifying to payment "by judgment and property must give facts, not con-
clusions, and if from such facts payment would legally result as a conclusion, the question as to
the existence of the facts goes to the jury. Pardee & Markle v. Johns, 251.
4. The rule of the common law in regard to the application of payments, is to allow the
creditor to make such application as he pleases, provided there is no direction by the debtor,
and no definite contract on the subject. Brown v. Coray, 377.
PLEADING AND PRACTICE, See ARBITRATION. ATTACHMENT AND ATTACHMENT EXECU
TION. AUDITOR. CAPIAS. CASE STATED. CENSUS. CERTIORARI COURT. COMMON
SCHOOLS. CRIMINAL LAW. DIVORCE. EJECTMENT. EQUITY. EVIDENCE. JUDGMENT.
MARRIED WOMEN. ORPHANS' COURT. PARTNERSHIP. PARTITION. REFEREE. SETOFF.
SHERIFF'S INTERPLEADER. SHERIFF AND SHERIFF'S SALE. SPECIFIC PERFORMANCE.
1. Where, in an action of slander, the affidavit of the plaintiff contains no averment of
special damage, or that the defendant is about to leave the state, and the alleged slanderous
words do not impute a crime, the defendant is entitled to be discharged on common bail.
Pfouts et ux. v. Cresley, 40.
2. That the court below erred in prescribing the order in which counsel should address the
jury is not ground for reversal in the Supreme Court. Staub v. Wolfe, 70.
PLEADING AND PRACTICE. (Continued.)
3. It seems that a venire de novo is sometimes allowed where the plaintiff has no right to
Laurel Run Building Association v. Sperring, 67.
4. When the charge of the court as an entirety is correct, a new trial will not be granted
because of the phraseology of a single sentence. Totten v. Hicks, bo.
5. The duty of the court to grant non suits in certain cases. Drew v. Gaylord Coal Co., 207.
6. An answer is not required until the alternative writ has been allowed and issued. Depo-
sitions in denial of the facts therein alleged cannot be considered. Unless it admits the material
allegations of the petition it should be met by demurrer, plea, or traverse, and an issue should
be thus formed upon which judgment can be rendered. If it be an issue of fact it goes to a jury.
Commonwealth ex. rel. v. Norton et al., 231.
7. Where a defendant in an action for wages (in Luzerne county) appeals from the judgment
of a justice, and on the trial of the case in court a verdict is rendered against him, he is liable
for the costs, no matter what the amount of the verdict, unless, when taking the appeal, he filed
an affidavit admitting a certain amount to be due, and judgment was entered for said amount by
the justice as provided in the act of February 28, 1870, P. L. 269. Redmer v. Markle & Co.,
8. A plea in abatement will not ordinarily be received after a plea in bar, but where a plea
in bar has been entered inadvertently and by mistake, and the defendant has not been in default,
and applies at once, it is in the discretionary power of the court to permit him to withdraw it
and to plead in abatement. Harrison v. Tillinghast et al., 270.
9. On a rule to show cause of action, counter affidavits cannot be read; nor can the plaintiff
be cross-examined; nor, if his affidavit is insufficient, will supplementary affidavits be received.
Falk v. Wurzburger, 321.
10. The release of the lien of an incumbrance, after the defendant's arrest on a capias, will
not authorize an abatement of the writ upon the ground that he is a freeholder. Gerry v. Sheri-
dan, 513.
11. Possibly it would authorize his discharge on common bail. Id.
12. A freeholder to be privileged from arrest must have an estate clear of incumbrance, and
the court will not inquire if the estate is sufficient beyond the incumbrance to satisfy the de-
mand. Id.
13. Judgment by default taken in violation of an act of assembly and rule of court will be
stricken off. Piatt v. Sickler et al., 519.
14. Mere lapse of time after the entry of judgment, where it is not shown that the defendant
knew of such entry, will not be considered a waiver of an irregularity in taking judgment. Id.
15. Judgment by default must be taken in term time. Id.
16. Plaintiff may enter a nolle prosequi as to one defendant only. Nyman v. Sullivan, 345.
1. Under act of 1836 (Purdon 1157, pl. 27), the children and grandchildren of a pauper are
on precisely the same footing of liability for the relief of such pauper. In Re Hadsall et ux., 129.
2. A grandchild is not discharged from this liability by proof of other grandchildren not
reached by process, or even of children out of the jurisdiction of the court; his liability is indi-
vidual, to be measured by his individual ability. In this case, a poor district asked for an order
of relief against certain children and grandchildren of a pauper. There were other children and
grandchildren either out of the jurisdiction or not served with process, some of whom were well
able to give relief. None of the respondents except one, a grandson, was able to contribute
towards pauper's support. Held, that said grandson was liable to the extent of his individual
ability. Id.
3. Upon the confirmation of an order of removal the appellant is chargeable with the expenses
of maintaining the pauper by the appellee incurred prior to the order of removal, there being no
laches or unnecessary delay in obtaining the order. In Re Ross Poor District, 198.
4. The appellant is also liable for such costs incurred after obtaining the order, where
notice has been given to the appellant of the order and the pauper is too ill to be removed. Id.
5. The confirmation of an order of removal is a conclusive adjudication of all matters essen-
tial to the adjudication. Id.
6. A justice is incompetent, on the ground of interest, to join in an order of removal from
his own township to another, but not to issue an order of relief. Id.
7. The court will take judicial notice of the official character of justices of the peace. Id.
8. Expenditures by de facto overseers may be recovered on confirmation of the order of
removal. Id.
9. Election of overseers in boroughs considered. Act June 27, 1881, P. L. 120. Id.
10. Where tax books are produced showing assessments upon a certain party which are
marked "paid," this is prima facie evidence of payment in a question as to the legal settlement
of the party assessed. In Re Scranton Poor District, 197.
11. A husband may gain a new settlement by residence and paying taxes in a new district,
notwithstanding the fact that during such time his wife receives support as a pauper in the town
of his old settlement. In such case it is proper to order the removal of the wife from said old
settlement to the new one gained by the husband. Id.
12. For opinion of the court below see 13 Luz. Leg. Reg. 315, 2 Kulp, 457.
1. Where the bond of a railroad company for the payment of damages for the taking of
land for a branch road is merely informal, not fatally defective in its execution, objection should
be made at the time of its presentation for approval. Myers v. Delaware, Lackawanna and
Western Railroad Company, 347.
2. The formal attestation of the seal of the company and of the signature of the president is
not essential to its validity. In a suit on the bond these may be proved otherwise. Id.
3. Authority from the company to file the bond is to be presumed in the first instance from
its execution and presentation for approval. After the corporation proceeds under it to take the
land they will be estopped from denying the authority under which it was filed. Id.
4. Authority of railroad company to take land for "branch" or "side track" consid
5. Where a bond of a railroad company is presented for approval, and it does not appear
upon the face of the proceedings that the proposed appropriation of land is illegal or unconstitu-
tional, the court will not receive testimony tending to show that the corporation is proceeding
in excess of its powers. Id.
6. The giving and approving of the bond are conditions precedent to the exercise of the
power to appropriate land by a railroad company, but these acts are not conclusive against the
land owner, except as to those matters which are essential to the adjudication. Id.
RECEIVER. See ATTACHMENT AND ATTACHMENT EXECUTION.
1. The appointment of a receiver in one state is recognized, as a matter of comity, in others,
unless his claims are in conflict with those of citizens of the others. Filley et al. v. The Ithaca
Organ and Piano Company, 396.
2. Where a receiver has been appointed by a court of competent jurisdiction in one state,
the United States Circuit Court will, on proper cause shown, appoint an ancillary receiver in
Pennsylvania. Williams, Receiver, v. Hintermeister, 499.
REFEREE. See EQUITABLE EJECTMENT.
1. A referee, under the act of 1870, should state specifically his conclusions of fact on all
essential questions raised by the evidence, in order that their correspondence or non-correspon-
dence with the weight of the evidence may be verified. Blackman et al. v. Smith, 140.
2. In this case, the referee having failed to find and state specifically certain conclusions of
fact, the report was referred back. Id.
3. The power of the court to re-commit the report of a referee upon the allegation of after-
discovered evidence is no greater than its discretionary power at common law to grant new
trials, and its exercise is to be governed by the same general principles. Moore v. Habel, 310.
REPLEVIN AND REPLEVIN BOND.
1. Judgment may be entered upon the warrant of attorney in a replevin bond, and execution
issued without assignment of breaches or scire facias to ascertain the damages. Shippey v.
Evans et al., 438.
2. If execution is issued for too great a sum, relief will be afforded by the court by opening
the judgment. Id.
3. The conditions in a replevin bond are independent of each other, and failure to prosecute
the replevin suit with effect works a breach of the condition in the bond. Id.
4. It is not necessary, in order to recover upon a replevin bond, that there should be a judg
ment that the property be returned. Id.
5. The act of April 3, 1779, was intended to prevent interference with constables or other
officers in the discharge of their duties, by replevins upon property taken in execution, and for
which he is responsible. It does not apply to cases where the owner of the property, and not
the officer, is the defendant in the replevin. Tufts v. Cole, 436.
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