articles which she chose, at the appraised price. HELD, to be a manifestly fair method of appraise- ment.--lb.
67. Motions to quash the indictment and in arrest of judgment were refused where it was alleged that the information charged the common law crime of 72. The appraisers awarded to her a certificate rape, while the indictment founded upon it charged of deposit and a judgment at their face value, with- HELD, the statutory crime of rape, and the information out taking the interest into consideration. charged Albert Ramsey, while the indictment charg- that the interest, up to the time of the appraisement, ed Berdett Ramsey, in that defendant was indicted must be accounted for as part of the estate.-lb. and tried for the offense actually committed, and 73. A refusal to permit the presence of interest- the only place where the name Albert really appeared heirs at an appraisement is a fact to be taken ed was upon the endorsement which was no essential into consideration when the fairness of the appraise- part of the record, the name Albert in the indictment ment has been questioned.-Ib. proper having been scratched out and Berdett sub- stituted presumably before the administration of the oath.-Com. v. Ramsey, 207.
74. Claimant testified to services rendered by
68. The fact that in an information charging the herself and minor children to decedent during her defendant with the crime of rape, the additional lifetime HELD, that her testimony should have been and mistaken allegations of force and that the promptly rejected by the Auditor, as she was clearly carnal knowledge was against the will of the 13.incompetent.-Brockley's Estate, 78.
year-old girl did not any the less make it the crime 75. Evidence objected to should ordinarily be of statutory rape. The particular kind of rape com-admitted or rejected at once by the auditor, so that mitted by defendant would necessarily depend upon the proof adduced.-lb.
CRUEL AND BARBAROUS TREATMENT. 98.
counsel offering it may know whether or not to of fer other similar evidence, and objecting counsel whether or not to cross-examine the witness.-Ib.
76. If objections to her testimony had been de- ferred until after the close of the testimony, or to the argument of the exceptions, which the claimant might not have been able to substitute other evidence
DECEDENTS' ESTATES, 147, 210, 271, 300 for her own testimony, they could not then have been
69. The act of February 24, 1834, P. L. 75, provides for legal representatives of a decedent or the purchaser of real estate or other person interest- ed to have specific performance of a written con- tract.--Grenbowshi's Estate, 167.
69a. The act of 1889, P. L. 157, requires that notices shall be given the heirs when an application of this nature is made.-Ib.
69b. A bill for specific performance must show that the decedent contracted in writing to sell or con- vey his real estate or that he authorized another to contract for him: that the decedent received part of the purchase money and that he had knowledge of the contract.- lb.
80. Where a sister lives with a brother under a 70. The fact that a second-hand automobile, promise that he would give her a home, and which was appraised at $250, afterward sold for while she is thus living with him he becomes ill, $300, is no evidence of undervaluation or collusion the sister is not entitled to compensation and a or wrongdoing on the part of the appraisers.-Lo-claim against the brother's estate will not be sus- gan's Estate, 166. tained. Wells' Estate, 1C5.
71. The appraisers first valued all of decedent's personal property, without knowing which the widow would elect to take, and then set aside to her the
81. In such case a statement by the brother that he wanted the sister to have something, is not suffici- ent to establish a contractual relation.-Ib.
82. Where services are rendered there is an im- plied contract to pay for them, excepting in case of parent and child, or where a condition of fam- ily relationship is shown to have existed.-Ib.
83. Family relationship is such living together in a common abode, that services may reasonably be expected by the recipient to be gratuitous, and may also be considered by the giver to be without the expectation of compensation.-Ib.
84. Where a married woman devised her real estate to her husband for life with remainder to charitable uses, and died without issue or known kindred, and the charitable uses failed, the hus- band took a fee simple estate and on his death it descended to his heirs. Section 12 of the Act of April 8, 1833, P. L. 313, prevented its escheat to the Commonwealth.-Hunkley's Estate, 107.
DECLARATIONS, UNAUTHORIZED. 88.
maker against the defendant.-Farmers' National Bank of Lititz v. Hertzler, 97.
87. The real estate of defendant was sold upon foreclosure of a mortgage, executed prior to the Act of June 4, 1901, P. L. 364. Claims for Town- ship, School and County taxes were filed with the Sheriff. The Sheriff distributed the entire proceeds, which were less than the amount of mortgage to the plaintiff. HELD, upon exceptions to the Sheriff's distribution, that the plaintiff's mortgage had priority in distribution of the fund.-Yost v. Yeakle, 135.
PROCEEDS OF INSOLVENT CORPORATION.
88. A, an officer of C, the insolvent corporation, as an agent for B, sold and delivered to Ca press and other material with the understanding that B was "to carry" the machinery so sold until It was "convenient for C to pay for it." Subse- quently A, as an inducement for S and M to pur- chase stock in the corporation stated to them that the equipment of the plant was entirely free of debt. Before the auditor distributing the balance on the account of the receiver of C, B claimed the full
purchase price and the auditor awarded him a div-
85. Affirmative and convincing proof ought to be furnished to the Court that the applicant for a de-idend thereon. On exceptions filed, HELD, that in tective license has the proper qualifications.-Roth'
DELIVERY OF GOODS NOT SOLD, 55.
DEMURRER, 102, 113, 236-237, 335. DEPOSIT, CERTIFICATE OF, 38. DEPOSITOR, 266-269.
DESERTION AND NON MAINTENANCE.
OF GUARDIAN, 125-126.
OF SCHOOL DIRECTORS, 291-292.
PROCEEDS OF ATTACHMENT.
86. On distribution of the proceeds of an at- tachment the amount of a protested note held by a bank on which the defendant in the attachment is endo ser can not be set off against and deducted from the dividend allowable on a claim of the maker, who is insolvent, against the defendant, and awarded to the bank in full payment of the ncte A regular dividend should be allowed on the rcte and credited on the full claim of the
the absence of any testimony to show that A had been authorized to make such untrue declaration, that the execptions must be dismissed.-Hardnett Company v. Poultry Fancier Publishing Company, 169.
89. A agreed to sell his stock in the C company to the company for a fixed sum, part to be paid in cash and the balance in installments, secured by judgment On receipt of the cash he sent the stock to the secretary of the company with instructions to hold the same until the judgment was secured. C refused to give the judgment and after come cor- respondence expressed its willingness, by its attor- ney, to declare the whole thing off but directed the secretary to hold on to the stock. Before the audi- tor, A claimed the balance of the purchase price. HELD, that exccptions to the allowance of the claim must be dismissed.-Ib.
89a. E, as attorney, succeessfully resisted the payment of claims amounting to $1227.12. HELD, that an allowance of $300 to him out of the fund for distribution, will be sustained.—Ib.
90. D advanced to the corporation $3,000 to pay for the stock of A, under an agreement that $3,000 worth of stock was to be transferred to him. By reason of the failure of the corporation, acting un- der his advice, to give the judgment desired by A, the stock was never delivered to the company, or any part to him. The auditor found that his partic-
ipation in the meetings of the corporation as presi- for divorce consists of such conduct in one of the dent and director, and his failure to assert any claim married parties as to render further cohabitation for the money advanced until after the apppointment dangerous of the physical safety of the other, or of the receiver, fixed his status as that of a stock-create in the other such reasonable apprehension holder, and rejected the claim. HELD, that excep- tions to this finding must be dismissed.-Ib.
91. A presented a claim for money loaned to the corporation. As others had been induced to loan money to the corporation by reason of his state- ments that it was not indebted to him, the auditor rejected the claim. HELD, that exceptions to his findings must be dismissed.-Ib.
of bodily harm as materially to interfere with the discharge of marital duties.-Huyett v. Huyett, 102. 99. Neglect by wife of household duties, indif- ference, bad temper, nagging, jealousy and refusal to have sexual intercourse are not such indignities to the person of a husband as will entitle him to a divorce.-lb.
100. Divorce is of statutory origin, and the libel should contain the language of the statute.-Troxell v. Troxell, 33.
92. To a libel in divorce charging the wife with 101. In an action by a wife for divorce, an alle- desertion and adultery, the respondent replied gation of personal indignities is insufficient without charging her husband with adultery, and demanding the allegation that these forced the libellant to trial by jury. Subsequently she asked for alimony withdraw from respondent's house and family.—Ib. pendante lite and counsel fee. HELD, that an al- EMPLOYER'S LIABILITY ACT, FEDERAL, lowance will be made for counsel fee.-March v. March, 86.
93. Under the circumstance appearing from the record, alimony at this time would be improper.- Ib.
94. After an interval of several months, the hus- band not having paid the counsel fee, an attach- ment for contempt was asked. HELD, as no time for payment was fixed in the original order, the at- tachment must be denied; but a new order, requiring payment within thirty days, was made.-lb.
EQUITABLE OWNERSHIP, 129-131. EQUITY.
JURISDICTION, 49, 130.
REMEDY TO ESTABLISH TRUST, 273.
102. Plaintiff's bill alleged a collusive convey- ance of B's property to C., for the purpose of de- frauding B's creditors, and praying for a cancella- tion of the deeds, an injunction against conveying or encumbering the property and other relief. C de- murrred because plaintiff's claim had not been re- duced to judgment and because there was a remedy
95. Where the admitted and controverted facts make it incumbent for the respondent to justify her desertion by proving the facts set forth in her an- swer, she is entitled to an order compelling the li- bellant to contribute to the expense of the trial which at law. HELD, that the demurrrer must be dismissed. his action has made incumbent upon the respondent.—Bank of Glen Rock v. Sheffer et. al., 13. -Metzel v. Metzel, 113.
96. The respondent denied the facts set forth in the libel, and asked for an allowance for counsel fees and expenses. Subsequently liberant asked
leave to withdraw the suit. The facts showed that the husband had been ordered by the court of an- other county to pay respondent a weekly allowance; and that he had begun proceedings in divorce in
still another county. HELD, that the petition for al-
lowance must be granted.—Anderson v. Anderson, 26.
97. The meandering of the libellant in his effort to shift jurisdiction not having been explained, jus- tice requires that he shall pay the expenses in this court and those incurred by his wife in following him from another county so that she might vindi- cate herself from the charges he has placed on rec- ord against her. Ib.
103. Defendant B being a non-resident, no per- sonal action could be successfully prosecuted against him in this jurisdiction and a proceeding in rem
would be so inconvenient and slow as to make it an inadequate remedy as compared with a bill in equity.--Ib.
104. The equity court is itself the judge of whether the legal remedy is an adequate one, and
where such action is circuitous and burdensome, and in any way uncertain, it will not prevent the court of equity from taking jurisdiction of the case.--Ib.
105. Plaintiff presented his petition, alleging that while the lands, tenements and hereditaments concerning which suit was brought are located in York County, the defendant corporation had no office or place of business in actual operation in 98. Cruel and barbarous treatment as a ground said county; but averred that defendant's business
offices were in New York City, and that it had a a nuisance must first be determined by an action at place of business in Lancaster County, and further law; and asked for a jury trial. HELD, that the prayed that service might be made at those places. demurrer must be dismissed and the prayer for a The petition was granted and service made, where-jury trial denied.—Niles et. al. v. Richley, 94.
upon defendant moved to have it set aside. HELD, 114. The allegations that the proposed garage, that the motion must be granted.-Vandersloot v. if it should be erected, would necessarily become a Pennsylvania Water & Power Co. No. 2., 157. nuisance; that it would interfere with the safe and 106. The bill makes it plain that the defendant quiet use of plaintiff properties, and of the streets was lawfully incorporated under the laws of the and sidewalks adjacent thereto; and that it would State of Pennsylvania; if it has not properly or le-interfere with divine services in a nearby church, gally pursued its franchise as conveyed to it by the (one of the plaintiff's,) if fullly proven, entitle the act of incorporation there exists some remedy at law; plaintiffs to equitable relief, because of the inade- either by ejectment proceedings, or otherwise, ac- quacy of an action at law as a remedy for such in- cording to the irregular or illegal encroachment.-Ib. | juries.—Ib.
107. It is quite plain from a perusal of the amended bill that the ultimate object of the plain- tiff is to have this Court make an order which in effect would be to change the purpose for which the dam was constructed, presumably in accordance with its corporate rights.-lb.
108. As only a small portion of the dam is in this county the Court has no authority to direct ser- vice of process upon a non-resident-lb.
ESTOPPEL, 60a, 146, 160, 174.
EVIDENCE, 60a, 77-78, 169-171, 182-186, 192,
115. On a suit to recover balance owing by de- fendant on his purchase of plaintiff's interests in a certain company, where the amount of defendant's down payment is in dispute, and it is shown that defendant, in a letter written to R, whose inter- 109. Plaintiff below (appellee) presented his pe-ests in the same company he had also purchased, tition, alleging that while the lands, tenements and admitted the down payment to be as alleged by hereditaments concerning which suit was brought plaintiff, an offer by defendant to prove that the are located in York County, the defendant cor- letter was so written at plaintiff's instance in order poration had no office or place of business in to deceive R, is objectionable both on ground of actual operation in said county; but averring that immateriality and also as tending to introduce a col- defendant's business offices were in New York lateral issue.-Allen v. Nichter, 77. City, and that it had a place of business in Lan- caster County, and further prayed that service might be made at those places. The petition was granted and a motion to set aside the service was subsequently denied. HELD, to be error.- r.-Pennsyl- vania Water and Power Co.'s. Appeal, 42. 110. The Act of April 6, 1859, P. L. 387, does not apply to persons or property outside the juris- diction of the court.- Ib.
116. That defendant at the time of his purchase borrowed money sufficient to make such down pay- ment as he alleged, is irrelevant, when plaintiff was neither a party nor privy to the transaction.-Ib. EXECUTION, WRONGFUL SALE UNDER,
EXECUTOR, RIGHT OF ACTION IN, 263.
111. Having entered a conditional appearance, EXEMPTION FROM TAXATION, 302. defendant had a right to appeal from the order re- fusing to set aside the service out of the county.-Ib. 112. The court fell into error by relying exclu- sively on the averments in the bill, and failing to FALSE PRETENSE, 65-66. take into account the controlling importance of the prayers for relief.-Ib.
EXISTING RIGHTS AND REMAINDERS, 26-27.
FEDERAL EMPLOYER'S LIABILITY ACT, 329.
113. Plaintiff's bill set forth the proposed erec- tion of a public service garage by defendant, the FEES, 297. injuries that would result there from to their respec- tive properties, and prayed for an injunction. De- fendant demurred, contending that no injunction could be issued in advance of the erection of the garage; that the question of whether or not it was
117. Section 9 of Act April 21, 1915, P. L. 146, prohibiting the breeding or selling of ferrets, or having such animals in possession, except by license
from the State Board of Game Commissioners, and of the judgment and the transcript being filed in providing penalties for the violation thereof, is strict- the Court of Common Pleas, the application to ly and closely germane to the subject matter of the open judgment must be refused.-Ib. act as expressed in the title, and is therefore not in violation of Section 3, Article 3, of the constitution. GIFT, 5, 38. -Com. v. Boero, 109.
GRADE, LIABILITY FOR CHANGE OF, 158.
118. Plaintiff brought suit on a policy of in- surance, averring loss by fire. The affidavit of de- fense alleged false answers in the application to the 123. The return of ignoramus made on indict- questions as to whether the property insured was ment by a Grand Jury should be the end of the encumbered, and as to whether the defendant had prosecution originating in the information returned ever suffered a loss by fire before. HELD, that a by the committing magistrate. If public interests motion for judgment for want of a sufficient affidavit require further action it should be by a new war- of defense must be refused.-Shreiner v. Codorus rant on new information except where the Dis- and Manheim M. P. Insurance Company. No. 2, 29.trict Attorney is justified in preferring an indictment. -Com. v. Andruchek, 27. 119. An affidavit of defense which is as specific as the plaintiff's statement, is sufficient to prevent summary judgment.-lb.
FOREIGN ATTACHMENT, 63.
120. Where a man having a residence in Penn- sylvania, marries a woman who owns a hotel in Florida, and lives in the hotel during the winter but continues to maintain, and intends to return to his Pennsylvania home in the spring, his resi- dence continues in Pennsylvania, and a writ of Foreign Attachment against him will be quashed.-- Wolford v. Warrington, 165.
FOREIGN CORPORATION, 58. FRAUD, 14, 16, 60, 104-141.
FRAUDULENT REPRESENTATION, 140.
FUNERAL EXPENSES, 209. GAME COMMISSION, 117. GARAGE, 113-114.
121. Garnishee petitioned the Court to open judgment entered against him and to let him in for a defense, alleging ignorance of his rights and lia- bilities.--Alleva v. Gravinese et al., 191.
124. Grand Jurors constitute a part of the Court and if their returns are in proper form and there S no evidence of misconduct or irregularity at- tending their acts and where there is no allegation ɔr proof that a bill was ignored in consequence of oversight, mistake or fraud, or where no grave emer- gency or urgent public need requires it a bill should not be recommitted to a Grand Jury nor a new one committed to a subsequent Grand Jury.-Ib. GUARDIAN AND WARD, 209.
125. Where beneficiaries named in a life insur- ince policy have the opinion to accept the surrender value of the policy, a guardian of minor benefici- aries is authorized by virtue of his office, and with- out any order of court, to accept the amount and give his receipt binding the wards, unless his powers in this respect are restricted by statute.-Cadden v. Equitable Life Assurance Society, 10.
126. As between keeping a policy alive by pay- ing the permiums, and accepting the surrender value at a given time, it is the duty of a guardian to elect whichever appears to most beneficial to the ward.-lb.
127. To be entitled to damages for detention at the legal rate of interest, the beneficiary has the burden of showing surrender of the policy in the manner required by his terms, or waiver thereof by the company.-Ib.
122. The facts show that the garnishee was per- sonally served with interrogatories, that he had em- ployed counsel, who notified the Justice that he represented the garnishee, and if garnishee failed to recompense counsel for services to be rendered, he cannot now complain of the position in which he has voluntarily placed himself. The gar- 128. Plaintiffs brought suit against husband and ishee's rights would have been protected by ap- wife for the recovery of damages, which, accord- peal or certiorari, but a period of more than eighting to the statement of claim, were the result of months having elapsed from the time of the entry an assault committed by the wife "in the presence
« ПредишнаНапред » |