the manner of service thereof.-Leonard v. Atlas party attacking his authority to apply for a rule to
Nitrate Products Co., Inc., 124.
11. Service of a writ regular on its face cannot
be contradicted and set aside merely by the unsup-
ported affidavit of the party upon whom the service
was made.-lb.
12. In jurisdictions where appearances de bene
esse are abolished by rule of court, the defendant
cannot, without a general appearance, be heard to
object to the cause of action stated; but may ap-
pear specially to challenge a jurisdictional fact, by
deposition or proof dehors the record.-Macan v.
Scandinavia Belting Co., 129.
13. Bail demanded by the plaintiff in foreign
attachment will not be reduced upon a motion to
quash. That question can not only be considered
upon a rule to show cause why bail should not be
14. Where a defendant when he gave judgment
for a pre-existing debt, falsely stated to the plaintiff
that he had given no prior judgments, this does not
constitute such fraud or deceit in contemplation of
Section 33 of the Act of June 4, 1901, P. L. 404,
as will permit the plaintiff to issue execution on his
judgment after having received and duly released
for, a dividend from the assigned estate of the de-
fendant who was a farmer.-Minnich v. Hagen, 195.
15. As to farmers the Insolvency Act of June 4,
1901, is not suspended by the Federal Bankrupt
Act of July 1, 1898, but is in force.-lb.
show cause why he should not be required to file his
warrant under Section 71, of the Act of April 14,
1834, P. L. 333.-Daron v. Prudential Insurance
Co. of America et. al., 74,
18. An attachment execution is civil process
within Section 60, of the Act of April 9, 1915, P.
L. 80, which provides that "no civil process shall is-
sue or be enforced against any person mustered into
the service of this Commonwealth or of the United
States during so much of the term as he shall been
engaged in active service under orders, nor thirty
I days after he shall have been relieved therefrom,"
and cannot issue while the defendant is in active
service, although service of the writ be made on the
garnishee only for the purposes of acquiring a lien
and no effort be made to serve the defendant per-
sonally.-Ib.
PRACTICE BEFORE, 75-76.
APPEAL FROM REPORT OF, 303.
TOWNSHIP.
19. An appeal from township auditors' settle-
ment of the township treasurer's account will be
stricken off where no recognizance was filed within
thirty days from the time of the settlement, as re-
quired by Sec. 104 of the Act of 15 April, 1834,
P. L. 556.-Bailer's Appeal, 144.
AUTHORITY,
OFFICER OF CORPORATION, 60.
PRESUMED, 17.
RIGHT TO DELEGATE, 31.
SCHOOL DIRECTORS, 293.
WANT OF, 188.
16. A falsehood or deceit can only be taken BAIL, IN FOREIGN ATTACHMENT, 13.
cognizance of by the courts where it has induced
some one to do some act to his own injury.-lb.
ASSOCIATION, OFFICER OF, 37.
20. Where one obtains possession of a chattel
upon a written contract in which he declares that he
has rented the chattel, that he is to pay a certain
amount, in instalments, as rental and when paid the
ATTACHMENT, DISTRIBUTION OF PRO- article shall become his property, but until the rent-
CEEDS OF, 86.
al is paid no title is to be acquired by or vested in
him, the contract is one of bailment and not a con-
ATTACHMENT OF ROAD SUPERVISORS, ditional sale. The absence of an express eovenant
ATTORNEY-AT-LAW,
FEES AND COMPENSATION, 89a, 222.
APPEARANCE BY
17. An appearance by an Attorney-at-Law is
presumed to be authorized, and the burden is on the
to return a chattel at the end of the term does not
turn a bailment into a conditional sale.-Hughes v.
Murphy, 173.
21. Where the bailee of a chattel replaces a part
of it, such a new part does not become the property
of the bailor and may be sold upon execution
against the bailee.--Ib.
BOARD OF GAME COMMISSIONERS, 117. 312, to summarily remove a policeman from office
FOR MUNICIPAL IMPROVEMENTS, 179.
DEATH OF SURETIES.
24. To settle a controversy between a
railroad company and a trolley company, concern-
ing grade crossings, the latter gave a bond to cover
all damages that might accrue at said crossings by
reason of the negligence of itself, its officers, agents
or employees. Subsequently there was a change of
sureties, and when the second set of sureties were all
dead, the plaintiff railroad company petitioned for
a new bond. HELD, that the petition must be
granted. Baltimore and Harrisburg Railroad Co. v.
Hanover and McSherrystown Street Railway Co.,
25. There being no past or present claim during
the life of the sureties, nor any credit which could
have been obtained because of their names on the
bond, it is plain that no liability under the bond
now exists for which the sureties could be held
liable.--Ib.
26. The Public Service act of June 26, 1913, P.
L. 1408, provides that "nothing in this act contained
shall in any way abridge or alter the existing
rights of actions or remedies in equity or under the
common or statutory law of the Comnmonwealth."-
Ib.
27. The decree providing for a bond isscued out
of a Court of Equity on August 30, 1893, and has
been in force ever since. It is such a condition as
the legislature apprehended when it passed the sec-
tion (29) above referred to.-Ib.
for proper cause, and may, by ordinance, delegate
to the chief of police the right to exercise that au-
thority subject to the supervisory control of the
council.-Pfahler v. Borough of Dunmore, 87.
32. That authority is not abridged by the clause
in the Act of 1915 giving the burgess certain con-
trol of the police with the power to suspend a po-
liceman pending the action of the council.—Ib.
33. The Borough of Norristown enacted an or-
dinance, requiring "each person, partnership, asso-
ciation or corporation, engaged in the buying and
selling of junk, rubber, rags, rope,, scrap iron, brass,
lead, copper or other metal, commonly known as
junk dealers, to pay an annual license fee of Ten
Dollars." The defendant was convicted before a
Justice of the Peace of engaging in the business of
junk dealer in said Borough without first obtaining
a license permit. The justice imposed a penalty
of ten dollars. Upon certiorari, HELD, that the
proceedings must be affirmed.-Borough of Norris-
34. The supervision over junk dealers falls with-
in the police power of the State because this power
embraces all manner of wholesome and reasonable
laws, statutes and ordinances, not repugnant to the
Constitution, which the Legislature may judge to be
for the good and welfare of the Commonwealth
and of the objects of the same. The State has the
inherent right to protect health, life and limb,
individual liberty of action, private property and
the legitimate use thereof and to provide generally
for the safety and welfare of its people.-Ib.
35. A notice to curb and pave sidewalks of a
borough, served before the sidewalk is brought CERTIORARI, 33, 153.
from the natural to the established grade, is not
sufficient to sustain a lien for curbing and paving
after the borough does the grading. To charge the
property owner it is necessary to serve a notice after
the borough brings the sidewalk to grade.-Lands-
downe Borough v. Burdsall, 84.
36. The credibility of oral testimony is for the
jury, but where the verdict shows that the jury found
against uncontradicted evidence for which there
was no reason to warrant its disbelief, a new trial
will be granted.-Ib.
BURDEN OF PROOF, 329, 336.
40. The hearing of the suit before an alderman
was continued from July 19 to July 25. On July
21 a certiorari was issued and served on the
alderman July 24. HELD, that proceedings under
the certiorari must be dismissed.-Perago v. York
Railways Co., 84.
41. It is impossible for the court to determine
what the judgment of the alderman would have been
if he had been allowed to proceed.—Ib.
CHARITABLE USE, DEVISE TO, 84.
37. Where the by-laws of an association pro-
vide that action against any member for conduct 42. Where the maker of a promissory note gives
detrimental to the purposes of its organization shall as collateral security a bill of sale for two automo-
be based upon a charge in writing signed by the biles which are leased back to him and remain
person or persons making the same, and specify-in his possession, the transaction is in effect a chat-
ing offense alleged to have been committted, the tel mortgage without possession and void against
association has no power, in the absence of such creditors of the motgagor.-Ryder v. Jenkins, 160.
specific charge, to declare a vacancy in an office
for the obvious purpose of ousting the incumbent
as a penalty for such misconduct.-Evans v. Scran-
ton Protective Association et. al., 117.
CAPIAS AND RESPONDENDUM, 251-252.
CERTIFICATE OF DEPOSIT, 4.
38. Plaintiff's decedent deposited six hundred
dollars payable to the order of himself or another
(defendant), and received there for a certificate of
deposit. This certificate contained a proviso that
the money belongs to the payees jointly, it being
understood that either may withdraw on his or her
individual order during their joint lives, and that
any balance remaining upon the death of either
shall belong to the survivor. After the death of
the testator defendant presented the certificate to the
bank and drew the entire amount with interest.
Plaintiff brought suit, and the affidavit of defense
alleged that the statement did not disclose a suffi-
cient cause of action, averring survivorship and
consequent title to the fund in question. HELD,
that a motion for judgment for plaintiff must be re-
fused.-Waltrick's Executor v. Hockensmith, 115.
39. The language used in qualifying the general
certificate of deposit implies an understanding or
agreement between the parties at the time the money
was deposited. In the absence of any explanation
of this agreement, judgment cannot be entered upon
the proceedings.- Ib.
CONTRIBUTORY NEGLIGENCE OF, 198.
CUSTODY OF, 211-214.
MAINTENANCE OF, 215-221.
PRESUMPTION OF CAPABILITY, 198.
SERVICES OF, 217, 220.
CHILD LABOR ACT, 333-335.
CIVIL PROCESS, 18.
COLLATERAL SECURITY, 42.
PROTECTION OF PLEDGE.
43. Plaintiff was the holder of two notes against
defendant, as collateral security for which it held
two mortgages against a third party, of which de-
fendant was the legal owner, and which mortgages,
by reason of the depreciation of the land which
they covered, were worthless. Defendant offered
evidence to show a notice to plaintiff by him, to
foreclose the mortgages, and claimed a loss, by rea-
son of failure to make such foreclosures, in excess
of the amount due on the notes. The jury found
for the defendant. On a motion for judgment for
plaintiff n. o. v., HELD, that the judgment must be
refused.-City Bank v. Rieker, 189.
44. The disputed questions of fact (1) whether
notice to foreclose had actually been given; (2)
whether or not the plainttiff had afterwards been
guilty of culpable negligence in not foreclosing;
(3) whether plaintiff's negligence was the direct necessary to continue in force the provisions of said
cause of any loss to the defendant-were all nec- contract.-lb.
essarily left to the jury to decide upon the conflicting
evidence on those subjects.-Ib.
45. The Court instructed the jury "if the jury find
that plaintiff (after notice to foreclose) was guilty
of supine negligence in not doing so, and this
negligence caused a loss to the defendant, plain-
tiff would be liable to him for such loss." HELD,
not to be error.—Ib.
46. An instruction that the bank could not be
held liable under any and all circumstances for
failure to foreclose these mortagges, but would be
held only to the exercise of such care of the col-
lateral as a man of ordinary prudence would give
to important affairs of his own, was
as favorable
to the plaintiff as the rules of law would permit.-Ib.
COMPETITION, UNFAIR, 136-139.
CONDITIONAL DEVISE, 308-309.
CONDITIONAL SALE, 20.
CONSIDERATION, WANT OF, 142.
CONSTITUTION.
ARTICLE 3, SECTION 3, 117.
ARTICLE 16, SECTION 5, 58.
CONTEMPT, ATTACHMENT FOR, 94.
CONTRACT, 77, 81, 88-89, 230, 293.
IMPLIED, 82.
47. Where the subject matter of a suit between
a borough and a light company is a contract where-
in it is provided that "it is mutually agreed by
and between the parties hereto, for themselves
and their and each of their successors and assigns
that this contract shall go into effect on the thir-
tieth day of January, A. D. one thousand nine
hundred and eleven and shall expire on the thir-
tieth day of January, A. D. one thousand nine
hundred and sixteen: provided, however, that the
borough may at its opinion renew this contract for
another period of five years from the thirtieth
day of January, A. D. one thousand nine hundred
and sixteen, under the terms and conditions
hereof." HELD, the word "renew" as used in the
contract should be construed to mean, "to continue,"
or "extend."-Borough of Sunbury v. Northumber
land County Gas and Electric Company, 111.
48. Where the borough elects to exercise its op-
tion to renew, no additional contract or writing is
49. In such a case the jurisdiction of the Equity
Court is not ousted by the Public Service Act of
July 26, 1913, P. L. 1374.-Ib.
50. Plaintiff offered to furnish and erect for de-
fendant certain covering material. Defendant
agreed to accept said offer if plaintiff would give
bond for the proper completion of the work on
time. Plaintiff consented to give the bond if de-
To this de-
fendant would pay the cost thereof.
fendant replied that it would pay half the cost.
Not having received an answer in five days, de-
fendant placed its order elsewhere. Plaintiff then
brought suit to recover the profits it would have
made on the contract. The affidavit of defense de-
nied libility, owing to the plaintiff's unreasonable
delay in answering defendant's last offer. HELD,
that a motion for judgment for want of a sufficient
affidavit of defense must be denied.-American In-
sulation Co. v. Lindemuth Engineering Co., 178.
51. The general rule of law in Pennsylvania is
that a contract is concluded at the time of the mail-
ing of the acceptance of an offer, and not at the time
of its receipt by the party addressed.—Ib.
52. If the offer itself fixes a time within which
it must be accepted, the acceptance thereof must be
made within the period specified. If no such time
is fixed, as in this case, the acceptance must never-
theless be mailed within a reasonable time after the
receipt of the offer or it will lapse.—Ib.
53. What is a reasonable time in any case depends
upon the location of the parties, the nature of the
transaction, the usages of the trade or business in
which the parties are engaged, and also upon the
previous rules of conduct between the parties them-
selves in the matters in controversy, and it is a ques-
tion for the jury.—Ib.
54. The statement must show clearly what items
of damages or profits are claimed, and the defendant
cannot be expected to deny in detail these matters
connected with plaintiff's business of which it can
have no personal knowledge.--Ib.
PURCHASE BY CARLOAD OR POUND.
55. Defendant agreed to purchase all the “Ohio
warehouse leaves" plaintiff had in stock. Plaintiff
shipper three carloads, one of which defendant re-
fused to receive, because it contained also some
other tobacco. On the trial of the case the Court
below charged that "the defendant was not obliged
to receive and pay for a car containing tobacco other
than" that purchased. HELD, to have been error.-
Hoffman Leaf Tobacco Co.'s Appeal, 47.
56. Defendants did not buy by the carload, but by the secretary of the company in order to sell the
by the pound, and could not refuse the whole carload stock were false. HELD, admissible as an admission
because part of it did not come up to the standard. by the company.-lb.
57. Defendant tendered a check for the tobacco
accepted, but wrote thereon "in full to date." Held,
that whether the tender was sufficient to free the
defendant from interest depended upon whether it
was for all that was due.--Ib.
CONTRACTOR, LIABILITY OF EMPLOY-
ER, 157.
CONTRIBUTORY NEGLIGENCE, 190, 194,
197, 331.
CORPORATION,
INSOLVENT, 88, 267-269.
NON RESIDENT, SERVICE ON, 105-112.
61. Defendant was acquitted of the larceny of a
newspaper, and one-half of the whole costs placed
on the prosecutor. HELD, that that portion of the
verdict must be set aside.-Com. v. Rodgers, 28.
62. The fact that a single newspaper may be of
very small money value, was no sufficient ground
upon which to ignore the true nature of the act
of taking it or impose any part of the costs on the
publishers.--Ib.
63. The prosecutor having had good grounds for
its prosecution should not have been made liable for
any portion of the costs.-lb.
COUNSEL FEES, 92, 95-97, 222.
58. The purchase, by a foreign corporation not COUNCIL, MEMBER OF, 28-30.
registered in this State, of book accounts covering
a number of transactions with different parties, the
collection of which extended over a period of sev-
eral months, more or less permanent and in line
of its corporate activities, the corporation at all times
exercising complete control over the transactions
within the State through its designated agents within
the State to carry on these corporate activities, is
doing business within this State and is in violation
of Article 16, section 5, of the Constitution of
Pennsylvania and the Act of April 22, 1874, P. L.
108.-Finance and Guaranty Company v. West Au- CREDITORS' BILL, 102.
burn Creamery Co., 19.
COUNTY CONTROLLER, REPORT OF
64. The annual report of the county controller
made to the court of common pleas of the county,
is to be made by the acting controller, and not by
an ex-controller.--Controller's Report, 164.
CREDITORS' RIGHTS UNDER RECEIVER
SHIP, 268.
CRIMINAL LAW.
FALSE PRETENSE.
59. The liabilities of officers and directors of a
corporation, delinquent in the performance of their
duties as such, must be determined in the mode pro-
vided by the Act of July 18, 1863, P. L. (1864)
1102, and April 29, 1874, P. L. 73.-Loux Cream-with false pretense it is shown that the defendant
ery Co. v. Tice et al., 6.
59a. They are not assets of the corporation so
as to give a general receiver authority to enforce
them through a proceeding in equity.-Ib.
65. Where on the trial of a defendant charged
falsely represented himself as the insurance adjuster
for the company in which the prosecutor, who had
sustained a fire loss, was insured, and thereupon the
defendant obtained the signature of the prosecutor to
a contract employing the defendant to advise and
assist in the insurance claim at a fee of ten per cent.
of the amount of the adjustment, the case is for the
jury, notwithstanding that the defendant proposed to
render service for his compensation.-Com. v. Ko-
Eune, 201.
60. Where the representations made by an officer
of a corporation to obtain a stock subscription are
such as he may reasonably be presumed to have
authority to make, they are admissible to show
the fraud by which the subscription was procured. 66. It was a question for the jury whether the
-Sanitary Casket Protector Co. v. Fisher, 88.
false pretense in obtaining the signature was suffi-
60a. In an action by a corporation on a note ta-cient to deceive an ordinary prudent man though the
ken for a stock subscription, the defendant testified prosecutor signed without reading the instrument,
that the president of the corporation gave him in- which would have shown the falsity of the de-
formation showing that certain representations made fendant's representations.-Ib.
|