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risburg, commonly called the Trindle teen cents for each witness subpoenaed, Spring Road was held sufficiently certain; and six cents for each mile travelled. Tilghman C. J., S. & R. 36. In Bean's Where a subpæna, however, is the proRoad, ni Casey 231, it is said when one cess of the court and is for the attendance terminus has been fixed, the courses and of the witness thereon, the charge should distances would have made the other ter- be made according to the Sheriff's fee minus ascertainable, and reference is made bill at the rate of ten cents for each witto the Penn's Valley Road, 4 Y. 514, and ness subpænaed ; and four cents for each the Matthew Miller Road, 9 S. & R. 35 mile travelled. The person entrusted above cited. Bean's Road was a public with the service of such a subpæna, is

Thus the position taken by not acting in the character of constable, Mr. Swope in the argument is sus- but rather as a sheriff's officer, and cantained. If there is a serious omission in not be allowed a higher rate. For the the report the universal and proper prac- service of subpænas issued by a justice tice is to recommit it to the viewers for of the peace, the charge is properly made such alteration as will make it perfect. according to the constable's fee bill; but New Hanover Road, 6 Harris 224. A re- not for serving those issued by the Court port may properly be referred back to the or its officers. (Coleman v. Hess, 1 P. A. viewers for such correction as it needs, at

Brown's Rep. 274; Kepner v. Miller, i any time before final confirmment; Hill- Ches. Co. Rep. 369.) town Road, idem 253.

The Sheriff's and Constable's fee bills In order then that the ending of the

were formerly the same with regard to road supplied may be determinable from these items, but the Sheriff's fee bill of the record of the Quarter Sessions, the June 12, 1878, has reduced them. viewers must describe this terminus with The bill will be corrected by the clerk sufficient precision, to enable the supervi- of the court. sors to locate it, when ordered to be opened ; Bean's Road, supra; Chartiers

COMMON PLEAS. Township Road, supra.

Dempwolf v. Pennsylvania Railroad Company And now, to wit, September 25, 1883, Report recommitted to the viewers for Negligence--Contributary--Stopping at particular description of the place of the

Railroad Crossing. post on the Middletown and Arendtsville

Plaintiff in approaching a railroad crossing, stopped at

a point somewhat remote from the track, and from where Road.

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, bui ne failed to

do so, drove on, and was struck by the train. Held, That Q. S. of

Chester County whether his failure to stop at the place nearer to the track

was such coucurring negligence on his part as would preCommonwealth v. Neely.

vent a recovery, is a question for the jury. A constable, who subpænas witnesses for court, is en

Motion to take off compulsory nontitled to charge, according to the Sheriff's fee bill, ten

suit. traveled. Per FUTHEY, P. J.-The person intrusted with the ser

H. L. Fisher for motion. vice of subpoena is not acting in the character of constable, but rather as a Sheriff's officer, and cannot be allow- R. E. Cochran, Horace Keesey and ed a higher rate.

V. K. K’eesey contra. Exception to taxation of bill of costs.

October 8, 1883. WICKES, P.J. I am The facts appear by the opinion of the

of opinion that the question of negligence Court, which was filed Sept. 24, 1882.

on the part of the plaintiff, ought under FUTHEY, P.J.-The exception is to the the circumstances of this case, to have

— allowance for serving the subpena. The been submitted to the jury. There is no charge is made according to the consta inflexible rule in this State, which fixes ble's fee bill, which allows the officer fif- the distance at which a traveller must

cents for each witness and four cents for each uile

stop, before crossing a railroad track. Not We are of opinion under all the circumto stop at all to look and listen, is negli- stances of this case the items in the acgence per se ; but that was not the case count of January 12, 1882, are not sufihere. The plaintiff did stop and listen, cient to save the lien under the Act of (he could not see the track), at a point | 1855. We therefore discharge the rule. somewhat remote. There was space to stop nearer the track, which he failed to

ORPHANS' COURT. do. Whether this failure was such concurring negligence on his part as to pre

Aten's Estate. vent a recovery, is I think a question to

In the absence of any proof that a guardiau has made be determined by a jury ; Penn'a R. R.

proper use of a fund on an account of his admiuistrator,

his e-tate will be charged with interest from the date of Co. v. Ogier, un Casey 60; North Penn'a

its receipt until the date of his death.

In such case a guardian must be at least treated as a R. R. Co. v. Hileman, 13 Wr. 64.

borrower of the fund from the date of the receipt. We therefore make absolute the rule to Exceptions to account of guardian of take off judgment of non-suit.

Alfred H. Aten, as filed by the adminis

tratrix of the guardian. Stone v. Leiberknecht.

August 6, 1883. RHONE, P. J. The Mechanics lien-Continuity of purchase.

guardian having died, his account was according to the original plan. Five months afterward she could, of course, only state such an

The defendant finished his building on a certain date, properly filed by his administratrix, and he changed the flooring, and put in new material for the old. Held, that a mechanics' lien filed three months

account as she could make after the change of flooring, being eight months after the

from memo

up first completion of the building, was too late.

randa left by the decedent. She, thereOctober 8, 1883. WICKES, P.J. Under fore charged the decedent's estate with the testimony submitted we think the the sum of $995-37, claiming $59.00 credit mechanics' lien creditors are without a

for expenses, showing the guardian's case.

estate endebted $746.67. The exceptant The defendant has distinctly stated that claims that to this sum interest should be his tobacco shed was finished in August added from January 2, 1880. 1881-finished according to my original The guardian received from the United plan''--"finished to all outward and in: States government January 2, 1880, a penward appearances,” are his expressions. sion for the amount above stated. It is not '

. The mechanics lien was not entered until shown that he has either expended any April 1882, more than six months after part of this sum for the benefit of his wards. That the defendant in January ward, or that he has invested it for his 1882, determined to change the flooring in benefit, or even that he had it on hand at the cellar, and did purchase and substitute the time of his death. It needs no argunew material for the old he had placed ment, or authority, then to conclude that in it according to his original plan, does his estate is liable for interest from the not give to this lien precedence of the time the money was received. He could plaintiff's judgment. The Act of April not, if living, object to being treated as a 14, 1855, (Purdon 1034, pl. 46) relied borrower of the fund at least, although upon to sustain the rule, does not apply. the law would call the transaction a crime, Its purpose was merely to link together perhaps. the items of an account where there was We, therefore, surcharged interest from no contract for the whole, or no order January 2, 1880, to February 1, 1882, the which would embrace the whole within a date of the guardian's death, which single undertaking, but always when the

amounts to $93.33, which added to $746., materials are furnished continuously to the

67, amounts to $840, for which sum we

enter judgment against the estate of the same building ; Diller v. Burger, 18 P. F.

decedent and in favor of the ward, with the costs of this proceedings.

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S. 432.

VOL. IV.

agers.

YORK LEGAL RECORD, poration decides to distribute it as profit.

Morris' Appeal, 2 Norris 269. This case THURSDAY, OCTOBER 18, 1883. No. 33 belongs with Biddle's Appeal (11 W. N.

C. 244) and Vinton's Appeal (ibid, 246), ORPHANS' COURT.

and the cases there cited, which discuss

the question of what is capital and what 0. C. of

Luzurne County is income where there has been an inRoss' Estate.

crease in the value of stock, bequeathed As a general rule, nothing earned by a corporation can in terms similar to those in hand. This be regarded as profits until it shall have been declared to be so by the corporation itself, acting by its board of man

class of cases seems to show that each one The fact that a dollar has been earned gives no stockholder a right to claim it until the corporation de

is decided on its own particular circumcides to distribute it as profit ; Morris' Appeal, (2 Norris stances, rather than on any broad, well 266 followed.

settled rule of law. In Earp's Appeal (4 The income or dividend from bank stock was bequeathed to the testator's widow for life. She died June 23i, and Case, 374) Lewis, C. J., says “that there a dividend was declared on the 29th of the same mouth. HELD. that her estate was not entitled to any portion is a general rule of law which forbids apof the same.

portionment, in respect of time, in cases Apportionment of dividends on stocks of periodical payments becoming due at to legatees, etc.

fixed intervals, but this rule is founded on August 6, 1883. RHONE, P.J. The convenience, and not on the equitable testator bequeathed to trustees certain rights of parties in interest. It is, therebonds, “and also one hundred shares of

fore, says he, “subject to exceptions the stock of the Second National Bank of wherever the purposes of justice require Wilkesbarre, upon the express condition

the correction of injuries arising from the

He then cites that they, the said trustees, shall collect uniformity of the law." and receive the interest, dividends and several exceptions to the rule, and adds, profits to accrue upon the said bonds and “In ordinary dividends on stock, periodistock as the same shall become payable, cally declared, the intervals between the and pay over the same to my said wife, time of payment are so brief, and the Ruth T. Ross, during the whole term of

sums divided so small, that no great inher natural life,' and upon her death then justice can be done in following the rule the said trustees “shall have and hold the of convenience, while on the other hand, said bonds and stock absolutely, equally the necessity for it is usually very strong, to be divided between them." The widow arising from the difficulty of ascertaining died June 23, 1882, and on the 29th day the exact amount of profits during fracof the same month the said bank declared

tions or the period.” An apportionment a semi annual dividend on the stock

was made in that case only because of the amounting to $300.

long accrued income, and the same was The question now is whether the said done in McKeen's Appeal, (6 Wright dividend belongs to the estate of Mrs. 479) for the same reason. Ross or to the trustees. The question As we have before said, in cases like has been raised by counsel on citation to this the dividend or income is not due at the trustees to account, and their answer fixed intervals, nor does it accrue from that the dividend does not belong to the day to day, so as to bring the widow said estate, but to them personally under within the exception to the general rule said will.

laid down in Blight v. Blight, (i 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 wouid 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

For the statutory alteration of holder the right to claim it until the cor- the common law rule, see Williams on

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C. 407

desires to secure are to accrue.

Executors, Am. Ed. 1877, p. 706, et seg.

a little information as to her earnings or See also note (n) p. 913.

salary, property or business? When the The proceedings in this care are, there- last petition of this kind was presented to fore dismissed at the cost of the peti- us, we took the liberty to inquire for the tioner.

sake of definiteness, in what part of the

county the petitioner resided, when the COMMON PLEAS.

reply was that it was not deemed at all C. P. of

Adams County

important, that the counsel himself was Slaybaugh's Case.

not sure where the petitioner lived, that Married Woman-Petition for Separate

she was the wife of a tenant and belong. EarningsContents of.

ed to a roving class. In some such cases A petition by a married woman, to secure her separate

it may be that we “license a class of feearnings, under the Act of 1872, must set forth what earn. male pirates, who engage in business ings the petitioner has or expects to have or what business she expects to engage in, or how the earnings she without responsibility and make reprisals

upon the grocer, the baker, the butcher, Petition of Mary Ann Slaybaugh for the mechanic and other persons with benefit of Act of 3rd of April, 1872, and

whom the woman may deal in the transanswer of her husband.

actions of her business."

40 Leg. Int. October 16, 1883. McCLEAN, P.

McCLEAN, P. J. 151, Bovard v. Keltering. For some time passed, I have been dissatisfied with the form of the petition used in

Certainly tle Acts of 1848 and 1872, such cases as this, in this Court and I am of have emancipated married woman to the opinion that the present application af

some extent from the shackles of the 1 common law.

For certain purposes a fords an appropriate opportunity of call

married woman ing a halt to the practice. The petition

now stands upon the could not well be briefer than this. It : same plane as a feme sole. To this extent could not well convey less information.

the legislation referred to has destroyed. We have the name of the woman, whose

that unity of person which existed at the wife she and where he lives, but what

common law. In plain words she has to earnings she has or expects to have this legislation from the conjugal vow,

a certain extent been "emancipated" by

, what wages for labor she has or expects to have, we know nothing about whatever.

from that unity which “is in exact acDoes she intend to leave the home and

cordance with the revealed will of God, service of her husband, to abandon her

was designed for the protection of the children to go into some other family, to

woman and leads to that identification of go on some other farm, to go into some

sympathies and interests which secures shop or store or office or manufactory?

to families and neighborhoods the blessWhat salary has she been receiving, or ings of harmony and good order." ” Ritter

v. Ritter 76, 396. does she expect to receive ? perty does she own or expect to own ? We do not intend to underrate the wisHas she horses and cattle, land or money, dom and utility of the Act of 1872. In merchandise or stocks? What business cases of wives of drunken or improvident. is she engaged in or contemplates engag. unfaithful or inofficious, disabled and ing in? These inquiries are surely not helpless husbands, the statute affords the impertinent, especially in view of the wife valuable and merciful protection. sworn statement of the husband in his But the husband and the public have a answer “that she is not carrying on any right to know in such a case as that of business and does not contemplate engag- Mrs. Slaybaugh, something about her ing in any business and has no separate property or business, to have some brief earnings and can have none." The Act statement of it in her petition, that it may does provide that the married woman's give some glimmering at least of the charearnings shall accrue to and inure to her acter of the separate earnings which separate benefit and use and be under her she designs to secure. Neither she nor control independently of her husband, any other like petitioner shall be compelled and so as not to be subject to any legal in this proceeding under this Act of 1872, claim of her husband, or his creditors, the to show title and ownership in the prosame as if she were a feme sole. But it is perty specified, in order to entitle her to too much to ask this woman from the lofty the benefits of the Act, but we must repedestal that the legislature has construct- : quire her to set out her claim of title and ed for her, to condescend to favor us with ownership, and to state her present or in

What pro

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C. P. of

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tended labor or business, so that the re- tions in plaintiff's affidavit, and alleging cords shall communicate some little public that he is a minor, and under the age of imformation pertinent to the proceeding. twenty-one years, asking that the attachThe petitioner in this case may have en- ment may be dissolved. tirely misapprehended the scope and pur- He also presented a petition asking the pose of the Act of 1872 and its applica- appointment of a guardian ad litem to apbility to her situation. She very probably pear for him in said suit; whereupon the has, if the statements contained in the Court appointed John F. Ruth, as guardhusband's answer are true.

ian ad litem, and John F. Ruth, as such It is therefore, October 16, 1883, order- guardian, has presented his petition and ed that the petition be amnended or a new asks that the domestic attachment may be petition filed in conformity with the views dissolved for the reason that the defendant, expressed in the foregoing opinion. George G. Landis, is a minor, and the at

tachment cannot be maintained against Lancaster County him. Kraft v. Landis.

A number of other parties have under Domestic Attachment-Contract of Minor and by virtue of the Act of assembly, in - When infancy a bar to action.

such case provided, had their names sugWhen a minor contracts for goods, the same not being gested on the record, as parties plaintiff, necessaries, and afterwards a domestic attachment is is- and are now plaintiffs in the action. It is sued for the goods, and the minor, through his guardian, ad litem, pleads his intancy: Held, that the attachment, admitted by the plaintiffs that George C. for that reason, must be dissolved.

Landis, the defendant, is a minor, and unWhen the attachment against the defendant cannot be sustained the proceedings against the garnishee must end der the age of twenty-one years.

Domestic attachment; issued July 7,1883 It is admitted on the part of defendant

August 19, 1883, affidavit presented and that the goods levied on by the sheriff, by rule granted to show cause why the at- virtue of the writ, are not claimed as the tachment should not be dissolved, &c. property of George G. Landis, but are

October 1, 1883. LIVINGSTON, P.J.- claimed by Jacob R. Landis, who has John A. Kraft, by affidavit filed, sets forth been summoned as garnishee, to be his that George G. Landis, the defendant, is own property. justly indebted to him in the sum of $180 In answer to the rule plaintiff's counsel for divers cigars, goods, wares and has filed several reasons why the attachmerchandize, sold and delivered by him

ment should not be dissolved, to wit : to said Landis, and at his request, on May

1. Because the defendant appears only 30, 1883; that said sum is due and paya by attorney and pleads his infancy. ble; that defendant lives at the house of

2. Because the defendant don't claim his father, Jacob R. Landis, in Warwick township, Lancaster county, Pa.

any interest in the property as against his That on or about July 3, 1883, he ab- father, the garnishee. sconded or departed from his usual place

3. Because the father and garnishee is of abode with intent to defraud his credi- made a party to these proceedings by the tors, as said Kraft believes; that he has left 4th Section of the Act of Assembly of the in this county a clear freehold estate suffi- Commonwealth of Pennsylvania, of June cient to pay his debts ; and that he has 13, 1836, and has made himself a party in left at least eight cases of cigars with the interest by claiming the property as his aforesaid Jacob R. Landis, who shall be own by reason of some arrangement with summoned as garnishee, etc.

the son. The equitable power of the Upon this affidavit a writ of domestic Court is ample under the 37th Section of attachment was issued and delivered to the Act above cited, to order this case to the sheriff of Lancaster county.

proceed to test this father's right to this To this writ the sheriff returns, that by property against these plaintiffs, from virtue thereof, he has attached “six cases

whom his son obtained it, and against of segars,” which have been appraised as

whom said son pleads his minority to proof value of $540, goods alleged to belong tect the father's title to the same. to the defendant, in the hands and posses- 4. Because this garnishee has failed to sion of Jacob R. Landis and summoned appear in Court on the day mentioned in him as garnishee by reading and copy, this writ, as he was bound to do in obeJuly 7, 1883

dience to the summons of this Court, and On August 17, 1883, defendant filed an the 4th Section of the Act of 1836, hereinaffidavit, denying all the material allega- | before cited.

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