risburg, commonly called the Trindle teen cents for each witness subpoenaed, and six cents for each mile travelled. Where a subpoena, however, is the process of the court and is for the attendance of the witness thereon, the charge should be made according to the Sheriff's fee bill at the rate of ten cents for each witness subpoenaed; and four cents for each mile travelled. The person entrusted with the service of such a subpoena, is not acting in the character of constable, but rather as a sheriff's officer, and cannot be allowed a higher rate. For the service of subpoenas issued by a justice of the peace, the charge is properly made according to the constable's fee bill; but not for serving those issued by the Court or its officers. (Coleman v. Hess, 1 P. A. Brown's Rep. 274; Kepner v. Miller, I Ches. Co. Rep. 369.) one. Spring Road was held sufficiently certain; Tilghman C. J., S. & R. 36. In Bean's Road, 11 Casey 231, it is said when one termiņus has been fixed, the courses and distances would have made the other terminus ascertainable, and reference is made to the Penn's Valley Road, 4 Y. 514, and the Matthew Miller Road. 9 S. & R. 35 above cited. Bean's Road was a public Thus the position taken by Mr. Swope in the argument is sustained. If there is a serious omission in the report the universal and proper practice is to recommit it to the viewers for such alteration as will make it perfect. New Hanover Road, 6 Harris 224. A report may properly be referred back to the viewers for such correction as it needs, at any time before final confirmment; Hilltown Road, idem 253. In order then that the ending of the road supplied may be determinable from the record of the Quarter Sessions, the viewers must describe this terminus with sufficient precision, to enable the supervisors to locate it, when ordered to be opened; Bean's Road, supra; Chartiers Township Road, supra. And now, to wit, September 25, 1883, Report recommitted to the viewers for particular description of the place of the post on the Middletown and Arendtsville Road. Commonwealth v. Neely. A constable, who subpoenas witnesses for court, is entitled to charge, according to the Sheriff's fee bill, ten cents for each witness and four cents for each mile traveled. Per FUTHEY, P. J.-The person intrusted with the service of subpoena is not acting in the character of constable but rather as a Sheriff's officer, and cannot be allowed a higher rate. Exception to taxation of bill of costs. The facts appear by the opinion of the Court, which was filed Sept. 24, 1882. FUTHEY, P. J.-The exception is to the allowance for serving the subpoena. The charge is made according to the constable's fee bill, which allows the officer fif The Sheriff's and Constable's fee bills were formerly the same with regard to these items, but the Sheriff's fee bill of June 12, 1878, has reduced them. The bill will be corrected by the clerk of the court. COMMON PLEAS. Dempwolf v. Pennsylvania Rail road Company Plaintiff in approaching a railroad crossing, stopped at a point somewhat remote from the track, (and from where he could not see the approaching train,) stopped, and failing to hear anything, drove on. There was a point nearer to the track where he could have stopped, but he failed to do so, drove on, and was struck by the train. HELD, That whether his failure to stop at the place nearer to the track was such concurring negligence on his part as would prevent a recovery, is a question for the jury. Motion to take off compulsory nonsuit. H. L. Fisher for motion. R. E. Cochran, Horace Keesey and V. K. Keesey contra. October 8, 1883. WICKES, P. J. I am of opinion that the question of negligence on the part of the plaintiff, ought under the circumstances of this case, to have been submitted to the jury. There is no inflexible rule in this State, which fixes the distance at which a traveller must stop, before crossing a railroad track. Not to stop at all to look and listen, is negligence per se; but that was not the case here. The plaintiff did stop and listen, (he could not see the track), at a point somewhat remote. There was space to stop nearer the track, which he failed to do. Whether this failure was such concurring negligence on his part as to prevent a recovery, is I think a question to be determined by a jury; Penn'a R. R. Co. v. Ogier, II Casey 60; North Penn'a R. R. Co. v. Hileman, 13 Wr. 64. We therefore make absolute the rule to take off judgment of non-suit. Stone v. Leiberknecht. Mechanics lien-Continuity of purchase. The defendant finished his building on a certain date, according to the original plan. Five months afterward he changed the flooring, and put in new material for the old. HELD, that a mechanics' lien filed three months after the change of flooring, being eight months after the first completion of the building, was too late. October 8, 1883. WICKES, P.J. Under the testimony submitted we think the mechanics' lien creditors are without a case. The defendant has distinctly stated that his tobacco shed was finished in August 1881-"finished according to my original plan"-"finished to all outward and in ward appearances," are his expressions. The mechanics lien was not entered until April 1882, more than six months afterwards. That the defendant in January 1882, determined to change the flooring in the cellar, and did purchase and substitute new material for the old he had placed in it according to his original plan, does not give to this lien precedence of the plaintiff's judgment. The Act of April 14, 1855, (Purdon 1034, pl. 46) relied upon to sustain the rule, does not apply. Its purpose was merely to link together the items of an account where there was no contract for the whole, or no order which would embrace the whole within a single undertaking, but always when the materials are furnished continuously to the same building; Diller v. Burger, 18 P. F. S. 432. We are of opinion under all the circumstances of this case the items in the account of January 12, 1882, are not sufficient to save the lien under the Act of 1855. We therefore discharge the rule. ORPHANS' COURT. Aten's Estate. In the absence of any proof that a guardian has made proper use of a fund on an account of his administrator, his estate will be charged with interest from the date of its receipt until the date of his death. In such case a guardian must be at least treated as a borrower of the fund from the date of the receipt. Exceptions to account of guardian of Alfred H. Aten, as filed by the administratrix of the guardian. August 6, 1883. RHONE, P. J. The guardian having died, his account was properly filed by his administratrix, and she could, of course, only state such an account as she could make up from memoranda left by the decedent. She, therefore charged the decedent's estate with the sum of $795.37, claiming $59.00 credit for expenses, showing the guardian's estate endebted $746.67. The exceptant claims that to this sum interest should be added from January 2, 1880. The guardian received from the United States government January 2, 1880, a pension for the amount above stated. It is not shown that he has either expended any part of this sum for the benefit of his ward, or that he has invested it for his benefit, or even that he had it on hand at the time of his death. It needs no argument, or authority, then to conclude that his estate is liable for interest from the time the mouey was received. He could not, if living, object to being treated as a borrower of the fund at least, although the law would call the transaction a crime, perhaps. We, therefore, surcharged interest from January 2, 1880, to February 1, 1882, the date of the guardian's death, which amounts to $93.33, which added to $746., 67, amounts to $840, for which sum we enter judgment against the estate of the decedent and in favor of the ward, with the costs of this proceedings. YORK LEGAL RECORD. VOL. IV. O. C. of THURSDAY, OCTOBER 18, 1883. ORPHANS' COURT. Ross' Estate. No. 33 As a general rule, nothing earned by a corporation can be regarded as profits until it shall have been declared to be so by the corporation itself, acting by its board of managers. The fact that a dollar has been earned gives no stockholder a right to claim it until the corporation decides to distribute it as profit; Morris' Appeal, (2 Norris 266 followed. The income or dividend from bank stock was bequeath ed to the testator's widow for life. She died June 23d, and a dividend was declared on the 29th of the same month. HELD. that her estate was not entitled to any portion of the same. Apportionment of dividends on stocks to legatees, etc. poration decides to distribute it as profit.' Morris' Appeal, 2 Norris 269. This case belongs with Biddle's Appeal (11 W. N. C. 244) and Vinton's Appeal (ibid, 246), and the cases there cited, which discuss the question of what is capital and what Luzurne County is income where there has been an increase in the value of stock, bequeathed in terms similar to those in hand. This class of cases seems to show that each one is decided on its own particular circumstances, rather than on any broad, well settled rule of law. In Earp's Appeal (4 Settled rule of law. Case, 374) Lewis, C. J., says "that there is a general rule of law which forbids apportionment, in respect of time, in cases of periodical payments becoming due at fixed intervals, but this rule is founded on convenience, and not on the equitable rights of parties in interest. It is, therefore," says he, "subject to exceptions wherever the purposes of justice require the correction of injuries arising from the He then cites uniformity of the law." several exceptions to the rule, and adds, "In ordinary dividends on stock, periodically declared, the intervals between the time of payment are so brief, and the sums divided so small, that no great injustice can be done in following the rule of convenience, while on the other hand, the necessity for it is usually very strong, arising from the difficulty of ascertaining the exact amount of profits during fractions or the period." An apportionment was made in that case only because of the long accrued income, and the same was done in McKeen's Appeal, (6 Wright 479) for the same reason. August 6, 1883. RHONE, P. J. The testator bequeathed to trustees certain bonds, ‘and also one hundred shares of the stock of the Second National Bank of Wilkesbarre, upon the express condition that they, the said trustees, shall collect and receive the interest, dividends and profits to accrue upon the said bonds and stock as the same shall become payable, and pay over the same to my said wife, Ruth T. Ross, during the whole term of her natural life,' and upon her death then the said trustees "shall have and hold the said bonds and stock absolutely, equally to be divided between them." The widow died June 23, 1882, and on the 29th day of the same month the said bank declared a semi annual dividend on the stock amounting to $300. The question now is whether the said dividend belongs to the estate of Mrs. Ross or to the trustees. The question has been raised by counsel on citation to the trustees to account, and their answer that the dividend does not belong to the said estate, but to them personally under said will. As we have before said, in cases like this the dividend or income is not due at fixed intervals, nor does it accrue from day to day, so as to bring the widow within the exception to the general rule laid down in Blight v. Blight, (1 Smith The bequest to the widow is not strictly 420) and cases there cited. That is to annuity, but is of the accruing income or say, if the bequest to her had been a defidividends on the stock, and yet the rules nite sum, payable at fixed intervals, or if of law relating to the rights of annuities it had been the income of a fund drawing for life are to some extent applicable. We a stated rate of interest, her estate would have come to the conclusion that the be entitled to such share of the same as money does not belong to the estate of had accrued to the date of her death, but the widow. "As a general rule, nothing under this will she was only to have such earned by a corporation can be regarded dividend as her trustees should collect as profits until it shall have been declared when "payable',' hence there was nothto be so by the corporation itself, acting ing ever due her until the dividend was by its board of managers. The fact that declared. See Stewart v. Swain, 7. W.N. a dollar has been earned gives no stock- C. 407. For the statutory alteration of holder the right to claim it until the cor- the common law rule, see Williams on Slaybaugh's Case. Adams County a little information as to her earnings or salary, property or business? When the last petition of this kind was presented to us, we took the liberty to inquire for the sake of definiteness, in what part of the county the petitioner resided, when the reply was that it was not deemed at all important, that the counsel himself was not sure where the petitioner lived, that she was the wife of a tenant and belong Married Woman-Petition for Separate ed to a roving class. In some such cases Earnings Contents of. A petition by a married woman, to secure her separate earnings, under the Act of 1872, must set forth what earnings the petitioner has or expects to have or what business she expects to engage in, or how the earnings she desires to secure are to accrue. Petition of Mary Ann Slaybaugh for benefit of Act of 3rd of April, 1872, and answer of her husband. October 16, 1883. MCCLEAN, P. J. For some time passed, I have been dissatisfied with the form of the petition used in such cases as this, in this Court and I am of the opinion that the present application af fords an appropriate opportunity of calling a halt to the practice. The petition could not well be briefer than this. It could not well convey less information. We have the name of the woman, whose wife she and where he lives, but what earnings she has or expects to have, what wages for labor she has or expects to have, we know nothing about whatever. Does she intend to leave the home and service of her husband, to abandon her children to go into some other family, to go on some other farm, to go into some shop or store or office or manufactory? What salary has she been receiving, or does she expect to receive? What property does she own or expect to own? Has she horses and cattle, land or money, merchandise or stocks? What business is she engaged in or contemplates engaging in? These inquiries are surely not impertinent, especially in view of the sworn statement of the husband in his answer "that she is not carrying on any business and does not contemplate engaging in any business and has no separate earnings and can have none." The Act does provide that the married woman's earnings shall accrue to and inure to her separate benefit and use and be under her control independently of her husband, and so as not to be subject to any legal claim of her husband, or his creditors, the same as if she were a feme sole. But it is too much to ask this woman from the lofty, pedestal that the legislature has constructed for her, to condescend to favor us with it may be that we "license a class of female pirates, who engage in business. without responsibility and make reprisals upon the grocer, the baker, the butcher, the mechanic and other persons with whom the woman may deal in the transactions of her business." 40 Leg. Int. 151, Bovard v. Keltering. woman to Certainly the Acts of 1848 and 1872, have emancipated married some extent from the shackles of the common law. For certain purposes a married woman now stands upon the To this extent same plane as a feme sole. the legislation referred to has destroyed. that unity of person which existed at the common law. In plain words she has to a certain extent been "emancipated" by from that unity which "is in exact acthis legislation from the conjugal vow, cordance with the revealed will of God, was designed for the protection of the woman and leads to that identification of sympathies and interests which secures to families and neighborhoods the blessings of harmony and good order." Ritter v. Ritter 76, 396. We do not intend to underrate the wisdom and utility of the Act of 1872. In cases of wives of drunken or improvident. unfaithful or inofficious, disabled and helpless husbands, the statute affords the wife valuable and merciful protection. But the husband and the public have a right to know in such a case as that of Mrs. Slaybaugh, something about her property or business, to have some brief statement of it in her petition, that it may give some glimmering at least of the character of the separate earnings which she designs to secure. Neither she nor any other like petitioner shall be compelled in this proceeding under this Act of 1872, to show title and ownership in the property specified, in order to entitle her to the benefits of the Act, but we must require her to set out her claim of title and ownership, and to state her present or in Kraft v. Landis. Domestic Attachment-Contract of Minor -When infancy a bar to action. When a minor contracts for goods, the same not being necessaries, and afterwards a domestic attachment is issued for the goods, and the minor, through his guardian, ad litem, pleads his infancy: HELD, that the attachment. for that reason, must be dissolved. When the attachment against the defendant cannot be sustained the proceedings against the garnishee must end Domestic attachment; issued July 7, 1883 August 19, 1883, affidavit presented and rule granted to show cause why the attachment should not be dissolved, &c. October 1, 1883. LIVINGSTON, P. J.John A. Kraft, by affidavit filed, sets forth that George G. Landis, the defendant, is justly indebted to him in the sum of $180 for divers cigars, goods, wares and merchandize, sold and delivered by him to said Landis, and at his request, on May 30, 1883; that said sum is due and payable; that defendant lives at the house of his father, Jacob R. Landis, in Warwick township, Lancaster county, Pa. That on or about July 3, 1883, he absconded or departed from his usual place of abode with intent to defraud his creditors, as said Kraft believes; that he has left in this county a clear freehold estate sufficient to pay his debts; and that he has left at least eight cases of cigars with the aforesaid Jacob R. Landis, who shall be summoned as garnishee, etc. Upon this affidavit a writ of domestic attachment was issued and delivered to the sheriff of Lancaster county. To this writ the sheriff returns, that by virtue thereof, he has attached "six cases of segars," which have been appraised as of value of $540, goods alleged to belong to the defendant, in the hands and possession of Jacob R. Landis and summoned him as garnishee by reading and copy, July 7, 1883. On August 17, 1883, defendant filed an affidavit, denying all the material allega tions in plaintiff's affidavit, and alleging that he is a minor, and under the age of twenty-one years, asking that the attachment may be dissolved. He also presented a petition asking the appointment of a guardian ad litem to appear for him in said suit; whereupon the Court appointed John F. Ruth, as guardian ad litem, and John F. Ruth, as such guardian, has presented his petition and asks that the domestic attachment may be dissolved for the reason that the defendant, George G. Landis, is a minor, and the attachment cannot be maintained against him. A number of other parties have under and by virtue of the Act of assembly, in such case provided, had their names suggested on the record, as parties plaintiff, and are now plaintiffs in the action. It is admitted by the plaintiffs that George C. Landis, the defendant, is a minor, and under the age of twenty-one years. It is admitted on the part of defendant that the goods levied on by the sheriff, by virtue of the writ, are not claimed as the property of George G. Landis, but are claimed by Jacob R. Landis, who has been summoned as garnishee, to be his own property. In answer to the rule plaintiff's counsel has filed several reasons why the attachment should not be dissolved, to wit: 1. Because the defendant appears only by attorney and pleads his infancy. 2. Because the defendant don't claim any interest in the property as against his father, the garnishee. 3. Because the father and garnishee is made a party to these proceedings by the 4th Section of the Act of Assembly of the Commonwealth of Pennsylvania, of June 13, 1836, and has made himself a party in interest by claiming the property as his own by reason of some arrangement with the son. The equitable power of the Court is ample under the 37th Section of the Act above cited, to order this case to proceed to test this father's right to this property against these plaintiffs, from whom his son obtained it, and against whom said son pleads his minority to protect the father's title to the same. 4. Because this garnishee has failed to appear in Court on the day mentioned in this writ, as he was bound to do in obedience to the summons of this Court, and the 4th Section of the Act of 1836, hereinbefore cited. |