must be treated as cancelled, and by the ap-
pointment of a receiver the business of the as-
sociation is thrown into a court of equity to be
administered on equitable principles.-Ib.
31. Equality among the shareholders is equi-
ty, and to allow one borrowing stockholder to
repay his loan, getting credit for the full amount
paid in on his stock while other stockholders
in the same series would lose what they had paid
in on their stock, or any portion of it, would
not be equality and therefore not equity.—Ib.
BUILDING.
BURIAL GROUNDS, 32-4, 171.
CEMETERY. 171.
32. An application for the charter of a ceme-
tery company need not set forth specifically the
land to be used as such cemetery.-In Re High-
land Cemetery Company, 66.
33. Unless the fact is disclosed by the record
or made to appear with certainty to the court, a
bare allegation that the company if incorporated
will violate the Act of June 24, 1895, P. L. 244,
is not sufficient to defeat the application.—Ib. |
34. If after incorporation it should appear
that there was a violation of the Act of Assembly
of 1895, an injunction would appear to be the
proper remedy.-Ib.
CERTIORARI, 121, 125.
CHARTER, 32.
CHOSE IN ACTION, 12.
CITIZEN, 19, 176-81.
CITY, 141, 176-81.
CLERK, 120.
CLERICAL ERROR, 128.
COLLATERAL SECURITY, 113.
COLLUSION, 44.
CONSTABLE, 118.
35. Petitioner claimed to be elected Constable
under the Act of 1895, on February 18th, 1896,
and asked to be sworn in. Respondent object-
ed on the ground that he had been elected Con-
stable the previous year, under the Act of 1889,
for the term of three years. HELD, that peti-
tioner is the duly elected officer.-Koller's Peti-
tion, 165.
36. The legislature had two purposes in view
in the passage of the Act of 1895: first to remove
the doubt that had arisen under the Act of 1889,
as to whether it applied to high constable, and
second, to fix definitely the time for the election
and duration of the term of the office, of con-
stable, and to make the same uniform throughout
the townships and boroughs of the State.-Ib.
37. The legislature has the right to legislate a
man out of office. It may diminish the term, or
abolish it altogether, but can not extend it dur-
ing incumbency.-Ib.
CONSTITUTIONALITY, 48, 171, 176.
CONTRACT, 50,
BOROUGH, 16, 17.
38. B bought a mare at sheriff's sale, and
temporarily left it in possession of the former
owner, the wife of C. Subsequently C sold the
mare to A who was a bona fide purchaser with-
out notice of the former sale to B. B then
threatened a suit of replevin, and subsequently
a settlement was effected by which the mare
was delivered to B, under an agreement that if
C was acquitted of larceny the mare was to be
returned to A, but if convicted then B was to
retain possession. C was acquitted, and A de-
manded the mare, and being refused brought an
action of replevin. HELD, that he could not re-
cover.-Smith's Appeal, 75.
ties are the basis of a contract, and it subse-
39. Where certain facts assumed by both par-
quently appears that such facts do not exist, the
contract is inoperative.—Ib.
40. A promise made by one in order to obtain
possession of his own goods, which at the time
are wrongfully withheld from him, is without
consideration.—Ib.
CONSTRUCTION, 103.
PERFORMANCE.
41. By the provisions of the contract plain-
tiff was to be paid monthly, according to the
amount of work done as per the engineer's esti-
mate, less fifteen per cent., payable at the com-
pletion of the contract. Upon the completion
of the work and its acceptance by the engineer
he was to make a final estimate of its quantity,
character and value, and the amount due was to
be paid to the plaintiff. The engineer's esti-
mates were to be conclusive on both parties,
subject to the right of defendant's president to
revise and alter. The estimates were made as
the work progressed and paid, except the last
one, made after the work was finished, which
was not paid. Subsequently the engineer sub-
mitted a revised estimate, but plaintiff contend-
ed for the payment of the one first presented.
On the trial the court held that the estimate
first submitted was the final estimate, and in-
structed the jnry to find for the plaintiff. HELD,
to have been an error.-Gondner v. Berlin
Branch Railroad Co., 102.
42. The estimate was similar in form to the
preceding monthly estimates, and was made as
they had been at the end of the month to show
the amount of work done since the last estimate.
It was but one of the series of monthly state-
ments for which the agreement called, and was
final only in the sense that it was the last in date
and was made after the completion of the work.
-Ib.
show that a final estimate had been made by
43. It was competent for the defendant to
the engineer, fixing the quantity, character and
value of the work, and the amount due therefor,
and testimony tending to prove this should
have been admitted.-Ib.
44. The fact that the engineer was in the
employ of the defendant did not commit it to
the consequences of his misconduct while act-
ing as an arbiter for both parties, and an award years. There was no evidence of any contract which was the result of collusion with the plain-between the parties, and A's evidence was contiff was not binding upon it.—16.
45. Where the evidence shows a contract for delivery at a certain place, and that at or before the time of the actual delivery the vendees, in addition to actual insolvency, did any act which deprived them of the power to carry on their business, such as the confession of judgment, transferring property, preferring creditors or making a general assignment, the vender may rescind the contract and re-take the goods if he can get them before the rights of innocent persons have intervened.-Carnegie Steel Co. v. Eureka Steel Co., III. CONTRACTOR, 1. COSTS, 59, 200.
46. Where the Grand Jury ignored a bill and directed the prosecutor to pay the costs, the court will not interfere with such disposition, notwithstanding a prior commitment of the defendant, on the same charge.-Com. v. Gilgallon, II.
COUNSEL, 79, 96. COURT.
ASSUMPTION, 126.
CONTEMPT, 77.
COSTS, 46.
CUSTODY, 77.
JURISDICTION, 10, 57, 58, 65, 155. CRIMINAL LAW.
PAYMENT OF WAGES.
47. A statute that requires employers to pay wages twice in each month, between fixed days, interferes with the natural rights of both employers and employees to make contracts.Commonwealth v. Isenberg et al. 113.
48. The Act of May 20, 1891, violates Article I, Sec. I and Sec. 17 of the Constitution.-Ib. DAMAGES, 81, 86, 102, 141-2. DEBT, 12.
tradicted as to the length of time for which allowance was claimed, by proof that decedent was absent from A's residence for over a year during said period. A had lived with decedent's parents for twenty-three years, then with him for ten years and then he lived with her for five years. The furniture in the house was brought from their former residence, and in addition he furnished his own room. Each bought provisions as needed, though sometimes he paid for them with her money. In the absence of any contract, or any book of accounts, or any demand made by A in decedent's lifetime, or any promise by him to pay, the Auditor disallowed the claim, and exceptions filed to his report were dismissed.-Heilman's Estate, 25.
51. The intimate relation between the claimant and decedent, for a lifetime, first, under the parental roof, then in the home of the decedent for about ten years, and last at her residence, companions and friends, sustaining the family relation, without a whisper of claim for compensation or promise to pay; the delay in demanding pay and enforcing the same, during the lifetime of the decedent, when he was able to pay (for he left an estate) all show the intention to give and receive without compensation; that payment was not contemplated by them, and that they dealt with each other as companions and friends, aiding and solacing each other, in life companionship, and not as creditor and debtor.-Ib.
52. The evidence showed that decedent desired claimant to stay with him at night, and proposed to pay for his services. Later claimant became tired and wanted to quit, but decedent said he would pay for the extra night services, that he hadn't paid him yet but would give it to him all in a lump, which proposal being communicated to claimant he agreed to remain and dil so until the decedent's death, without receiving any pay for his extra services. The Auditor rejected his claim, but the Court below allowed it. From its decree the residuary legatees appealed, but the decree was affirmed.Eichelberger's Estate, 29.
53. Such service is of a most important and essential character to persons in such condition; and it is a severe and exhausting strain upon
DEBTOR AND CREDITOR, 51, 78, 135, the person who performs it, most especially
138, 154, 158, 191-3.
DECEDENTS' ESTATES, 183.
49. The evidence showed that decedent ordered the work for which E presented his claim, and agreed to pay for the same, during the time the property on which the work was done was occupied by his grandson. The account book of E, although the work and material claimed for were charged to the grandson of testator for the property, was evidence to show the amount and price of the work done and materials furnished. The Auditor disallowed the claim, but an exception filed thereto was sustained and the report recommitted.-Kindig's Estate, 18.
50. Before the Auditor A claimed allowance for board and lodging of decedent for nearly five
when that person also works during the day. -Ib.
54. It does not at all follow that there is to be any implication of gratuitous service of this kind as there is when the service is rendered by a child to a parent. The claimant was a servant in the employ of the deceased and had been for a number of years and it is only a question of additional service for which he certainly should be adequately paid.-Ib.
55. Before the Auditor, a brother-in-law of decedent testified that the latter admitted, in a conversation about a year before his death, that "he had $900 of his wife's money." A book in the hand writing of the claimant's father, containing a memorandum of money paid to claimant was also offered in evidence and admitted. No testimony was offered against the claim
or to impeach the credibility of the witness. such income, and the Court confirmed his re-
The Auditor found for the claimant, to which port. On appeal by the residuary legatees, the
finding exceptions were filed. HELD, that the decree was affirmed.-Ib.
exceptions must be dismissed. The testimony
of the witness, being unimpeached, justified the
Auditor in his finding.-Coxen's Estate, 182.
56. The book itself, though admitted in evi-
dence, is not essential to the claimant's case,
since the real question is not where her money
came from, but whether her husband had it.
-Ib.
57. C, administrator of D, committed a de-
vastavit, whereupon A, a subsequent adminis-
trator, claimed against the estate of B, the
surety on C's bond, who is deceased; the de-
fence made was that B's signature to the bond
was forged. Before the Auditor appointed to
distribute the balance on the accounts filed by
B's executors, A presented the bond and claim-
ed the amount out of said balance. The Audi-
tor disallowed the claim, holding that the Or-
phans' Court was not the proper forum in which
to compel payment of such a bond. On excep-
tions filed, the report, pro tanto, was confirmed.
-Kindig's Estate, 18.
58. Recovery against sureties on official
bonds can only be had, by action, in the Court
of Common Pleas, under the provisions of the
Act of 14 June, 1836, P. L. 637.—Ib.
the supervision of the Orphans' Court has no-
63. The direction to invest the money under
thing to do with the case on the question of
postponing the time when the annuity com-
mences. If it had the executors would be able
to frustrate the will of the testator by simply de-
laying the time of their application to the Court.
-Ib.
64. Where a widow has been convicted as ac-
cessory after the fact, and a son of having mur-
dered his father, for the purpose of getting im-
mediate possession of his estate, HELD, that
the widow and the heir can inherit from the an-
cester whom they murdered.—Carpenter's Es-
tate, 16
stood in accordance with the plain and natural
65. The Act of April 8, 1833, is to be under-
meaning of the words. The legislature has the
power to determine and to declare the rules of
public policy. Courts have no right to arrogate
to themselves a wisdom superior to that of the
legislature and interpret and construe an Act of
Assembly so as to give it a meaning which the
plain and unmistakable words used in the act
would not convey, and they are not at liberty to
engraft exceptions on a statute where the legis-
lature has made none.-16.
DECLARATION, 159.
DEPOSITOR, 13-15.
DETECTIVE.
59. When A's claim was first presented be-
fore the Auditor, counsel for the accountant
asked for an issue to the Common Pleas to de-
termine whether or not the signature purport-
ing to be that of B to said bond was his genuine
signature. After much delay this issue was de-
termined against the validity of the signature.
To the report of the Auditor, ordering the costs 66. The Act of May 23, 1887, prohibits the
of audit to be paid by the estate, accountants ex- appointment of a private detective without proof
cepted, alleging that A should have been order- satisfactory to the court of the competency and
ed to pay the costs. The exception was dismiss-integrity of the applicant.-Burnett's Applica-
ed.--lb.
tion, 188.
67. A mere petition signed by the applicant
and twelve other persons certifying that they
are satisfied as to the competency and integrity
of the petitioner, is not sufficient, but the court
must be satisfied that there is some emergency
requiring the appointment.-16.
DEVASTAVIT, 57-9.
DISTRESS, 129-33.
DOGS, 142.
60. The executors refused to pay the lega-
cies for more than a year after testator's death,
alleging that there was a report in circulation
that testator left a widow, and therefore pru-
dence required that they should wait until after
the audit before paying the legacies, and such
reasonable cause for delay prevented the lega-
cies from bearing interest from the usual time.
The Auditor however, allowed the interest on
the legacies, the Court below confirmed his re-
port and on appeal taken by the residuary lega-
tees the decree was confirmed.-Eichelberger's DOWER. 108, 154.
Estate, 29.
61. There is nothing on the face of the will
in this case to change the time, there was an
ample amount of money and securities on hand
with which to pay legacies, and the story about
the possible widow was nothing but a rumor.-
62. Testator bequeathed the annual income
of certain funds to certain legatees, the princi-
pal to be invested by the executors, under di-
rection of the Orphans' Court. The executors
having failed to make such investments, refus-
ed to pay the income for the first year after tes-
tator's death. The Auditor, however, allowed
68. Plaintiff's bill set forth the death of her
husband thirty-seven years ago, the accruing of
a right of dower in her, and failure to receive
the same. Defendant demurred to said bill, one
of the grounds being the statute of limitations.
HELD, that the demurrer must be sustained.—
Anderson v. Manifold, 50.
69. Plaintiff's bill averred the purchase by
defendant, of the tract of land on which the
dower was claimed, on February 7, 1895, but
demanded an account of the rents, issues and
profits thereof, wherein plaintiff was dowable,
from March 12, 1870, to date of bill. On de-
murrer, HELD, that in equity an account could
only be recovered for the time the premises were
in defendant's actual occupation.-Ib.
EJECTMENT, 161, 172.
SUFFICIENT VERDICT.
70. The jury found as follows: "We find in
favor of the defendant and fix the present fence
from the rear of Sudeck's house to the Jordan
fence, as the dividing line between the two
properties. We also find the line as claimed by
the plaintiff from the rear end of said plain-
tiff's house to Jackson Avenue to be as claimed
by the plaintiff in his writ, with six cents costs."
HELD, not to be so uncertain, contradictory
and incapable of enforcement as to cause the
court to set aside the verdict and grant a new
trial.-Sudeck v. Roell, No. 2, 89.
71. If the verdict enables the court to give
judgement, and the Sheriff to deliver possession
when he is required, it will not be disturbed.
ELECTION, 18.
EMINENT DOMAIN.
72. Plaintiff presented its petition, setting
forth its incorporation as a water company with
power to appropriate "so much of the water
from the rivers, creeks, canal, water rights and
favor only, and rested within the discretion of
the court.-Ib.
76. The amended petition does not clearly de-
| fine and describe what it is intended to take, and
the viewers would be left in the dark on the sub-
ject; the map referred to seems to embrace all
the canal property of all sorts from Wrightsville
to the Maryland line. HELD, that the petition
must be dismissed.--Ib.
77. The State of Maryland, a creditor of de-
fendant company, who had obtained a decree
from court for the sale of the canal and all its
property, estate, effects and franchises, present-
ed its petition, asking for the dismissal of plain-
tiff's petition, on the ground that defendant com-
pany was in the custody of the court: and pro-
ceedings against it were in contempt of court:
that taking water from the canal would injure
with, for which no compensation was awarded;
the property of another canal connected there-
and the taking of said water would destroy
such other canal, of which the State was a
creditor, HELD, that the plaintiff's petition
I must be dismissed.-Ib.
78. The State of Maryland having filed its
bill to procure a sale of the canal before plain-
tiff company instituted its proceedings, and
having diligently pursued the same, the taking
away from the defendant company that which
gave its franchise any value would seriously
prejudice the creditor's rights and practically
nullify the court's decree of sale; therefore the
plaintiff's petition must be dismissed.fb.
ENGINEER, 41-4.
EQUITY, 31, 68, 69.
CERTIFICATE.
as may be necessary for
its purposes;" in pursuance of which it desired
to appropriate "the water, to wit: the rivers,
creeks, canals, water rights, easements, dams,
reservoirs, aqueducts and locks and the lands
and tenements appurtenant thereto begining
at the Borough of Wrightsville and ending at
the Maryland State Line," now in the posses-
sion of the defendant company, and failing to
agree with the defendant company as to the pro-
per compensation, asked for the appointment of
viewers to assess damages. Viewers were ap.
pointed, but before they met a rule was granted
to show cause why the petition should not be
stricken off, on the ground that plaintiff pro-
posed to practically take the entire property of
the defendant company. HELD, that the rule
must be made absolute.-Philadelphia Water
Supply Company v. Susquehanna Canal Com-AFTER-DISCOVERED.
pany, 42.
73. The Act of 1889, May 16, P. L. 226, gives
the plaintiff company power to take water, and
nothing more.-7b.
74. Plaintiff company in attempting to appro-
priate defendant's property rights, has so far
transcended its corporate franchises that the ap-
pointment of viewers must be rescinded and the
petition dismissed.-Ib.
75. Subsequently the plaintiff presented an
amended petition, stating that it desired "to
appropriate the water or water power from the
rivers, creeks, canal, water rights and ease-
ments, as may be necessary for the purposes of
your petitioners," of the defendant company,
in the territory set forth in the first petition, a
map of which was attached to the petition, and
asked for the appointment of viewers. HELD,
that such an amendment was not of right, but of
79. A widow who refuses to take under the
will of her husband may proceed in equity for
an account of rents and profits; but the act of
October 13, 1840, section 19, which gives the
remedy, requires a certificate of counsel to the
bill that there is no adequate remedy at law.—
Engle v. Conrad, 148.
ESTIMATE, 41-3.
EVIDENCE, 147, 173.
80. After-discovered evidence from a wit-
ness who was examined at the trial should at
least be positive if it is to reopen the case.-—
Cox Adm. v. Cox, 178.
for land taken by a railroad company, a plan of
81. Upon the trial of an action for damages
the borough streets, bearing the names of the
proper officers, produced by the borough sur-
veyor and proved to be a correct plan of the
streets as adopted by proper borough ordinances,
is admissible in evidence notwithstanding that
the plan may have been made after the location
of the railroad, or even after the commencement
of the suit.-Walker v. The Phila., Wilm. &
Balt. R. R. Co., 125.
82. The Act of June 11, 1891, P. L. 387, ap-
plies where the matter occurred in the hearing EXECUTION.
of the surviving party, whose silence is offered
as proof of assent to the statement made in his
presence by the party row dead to the living,
competent witness.-Cox, Adm., v. Cox, 178.
83. Corroborating circumstances when equiv-
alent to a witness considered.-Ib.
84. Mortality tables are admissible in evi-
dence in an action to recover damages for per-
sonal injuries, but the trial judge should instruct
the jury that the value of such tables when ap-
plied to a particular case depends very much
upon other matters, such as state of health,
habits of life, liability to contract disease, social
condition, etc.-Campbell v. City of York, 141.
85. The rule is that where an offer of evi-
dence partly admissible and partly not is made
as a whole, the Judge may reject it all, and is
not bound to separate the good from the bad,
although there may be cases, where the offer is
clearly competent in substance, and the objec-
tion is to a small or unimportant part, in which
his duty may be to point out, or at least call
upon the objector to specify the parts objected
to.-Mundis' Appeal, 107.
86. In suit brought to recover damages for
the taking of land by a railroad company, wit-
nesses were allowed to testify as to the value of
the land without having been first cross-exam-
ined as to the extent of their knowledge.
HELD, that though this might not constitute
reversible error it was irregular and may have
led to an erroneous verdict.-Schwenk v. Rail-
road Company, 181.
87. To put the opinion of a witness in evi-
dence, it is necessary to lay the foundation for
its introduction by a preliminary examination
and cross-examination addressed to the Court
for the purpose of showing that he is qualified
to give an opinion.--Ib.
88. When the Court is satisfied that the
witness has or has not the proper knowledge of
the facts upon which to base an opinion, it
should admit or exclude the testimony of the
89. Defendant offered to ask witness his opin-
ion as an expert as to what the courts would de-
cide upon the facts assumed in a hypothetical
question. HELD, that the offer was properly
rejected-Bollinger v. Gallagher and Johns,
No. 3, 77.
90. The exposition of a statute by the
courts are not necessarily evidenced by any sort
of documentary matter and for this reason may
be proved by one who is familiar with them;
but a conjecture, or a professional opinion, as to
what the law would be held to be upon certain
assumed facts, while it might be desirable for
the guidance of a client, and be within the ap-
propriate province of an attorney-at-law to give,
is not admissible as proof of what the law actu-
ally is.-Ib.
91. Labor employed in the equipment of a
manufactory is of a merely temporary and pre-
to preference under the Act of 1872 and its sup-
liminary character, and, therefore, not entitled
plements.- Wolf v. Krick, 117.
92. Where H. and K. agree to start a manu-
facturing business, K. to furnish the machinery
and H, labor and experience, whether or not
there was a technical partnership, H. will not
be allowed to claim for his labor as a preferred
claimant out of the proceeds of the sale of said
machinery on execution issued by a third per-
son against K.—Ib.
STAY OF, 1, 112.
EXEMPTION.
BEFORE JUSTICE.
93. In an attachment execution where a de-
fendant claimed the benefit of the law exempt-
ing from levy, &c., property to the value of
three hundred dollars, and whose claim was dis-
regarded by the justice, judgment obtained
thereon, will be set aside on certiorari.-Craw-
ford v. Main, 95.
94. Under the Married Persons Property Act
of 1893, a woman has no power, by contract
with her husband, to release her right to her
widow's exemption after his death.-Odenwel-
der's Estate, 67.
95. Testator's will devised all his property to
his wife, during her lifetime, with remainder
over. The widow, who was also the executrix,
took charge of the property, and one year after
testator's death sold the personal property. Fif-
teen months afterward she filed the vendue list,
and two years and a half after testator's death
she filed an appraisement in which she claimed
her exemption out of the proceeds of the real
tions filed to the confirmation of the appraise-
estate. The estate was insolvent, and on excep-
ment, HELD, that the appraisement must be
set aside.-Zarfoss' Estate, 95.
96. The loss of the widow's exemption is a
misfortune which she owes to her own imprud-
ence in not obtaining the advice of counsel.-Ib
EXPERT, 86-90.
FIRE, 19.
FORGERY, 59.
FRAUD, 11, 40, 44, 108.
FRAUDS, STATUTE OF, 167.
FOREIGN LAW, 89-90.
GARNISHEE, 12.
GIFT, 150.
GRAND JURY, 46.
HIGHWAYS, 141, 151-3.
HUSBAND AND WIFE, 56, 94, 108, 138.
ILLNESS, 114-6.
IMPROVEMENTS, 136.
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