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2. The said special plea with the excep- Orphan's Court Practice in Pennsylvania. tion of the above mentioned allegation of

Rees Welsh & Co., the well-known immaterial matter amounts simply to the law book publishers of Philadelphia, bave general issue.

just issued the first volume of a new work 3. The plea is defective by reason of by Hon. D. L. Rhone, Judge of the Orits being argumentative.

phans' Court of Luzurne County, with John W. Bittenger for motion.

the above title. The volume contains W. C. Chapman, contra.

nearly 800 pages of text, with copious April 24, 1883. GIBSON, A. L.J. The notes, and a complete Table of Contents

and Index. plaintiff has sued in case of injuries to himself and horse, occasioned, as he avers The scope of the work is indicated by in his narr., by the negligence of the de- its title, and the learned author has writfendant in not sufficiently opening and ten a book of which he may well feel grading a certain public road according proud. In a clear and comprehensive to law, and to its full legal width as fixed manner he has arranged all the deby the court, and in not erecting guards cisions relating to Orphans' Court pracalong an enibankment of the same for the tice, and there does not seem to be room safety of travellers; by reason of which for any addition or improvement on his neglect his wagon was run upon a bank work. and upset, and the injuries complained of

In the preface, the author says: were sustained. The defendant has filed

“My chief aim has been to cull from the the plea of the general issue, and also a special plea setting out that the public great body of our law that .which specialroad in question was sufficiently opened of decedents and the management of the

ly relates to the settlement of the estates to the width of twenty feet or thereabouts

estates of minors and cestui que trusts, in and was level and in sufficient repair, and

the several courts of this State. In this averring that the plaintiff negligently per endeavor my principal purpose has been mitted his team to go unguided up the bank by which the wagon was upset, and the practice, rather than to report excep

to state general principles and to illustrate negativing the allegation that there was

tional cases, so that in many instances the any embankment requiring guards for the

syllabus of the case referred to does not safety of travellers using ordinary care.This plea raises sufficiently the issue of sustain the statement made, but the profact, whether the injuries arose from the position will be found either in the opin

ion of the court or the history of the case.” fault of the township in the original construction of the road, or whether they were

“Gentlemen of the profession, you have occasioned by the negligence of the plain- been for a long time demanding a book tiff himself: Perry Tp. v. John, 29 P. F. specially devoted to the Orphans' Court S. 412. This issue is not improperly practice, and you alone can say whether raised by special plea, and can be met by or not this is the one you have been looka general replicatiop denying its allega- ing for. If it does not meet your expectations.

tions, I hope you will find it of some use." Rule discharged.

Among the York county cases referred to, are: Beaverson's Estate, 1 YORK LEGAL RECORD 173; and Graham's Estate, 2 ib. 186.

Also, the Adams county case of Plank's Estate, i ib. 148.

VOL. IV.

No. 7

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YORK LEGAL RECORD. spring of 1881.

Both wheat and grass

were sold by the receiver as personal proTHURSDAY, APRIL 19, 1883.

perty. The operatives in the mill claimed

a preference out of all these funds, under SUPREME COURT.

the Act of 1872.

The wages of these

claimants accrued chiefly in December, Appeal of John Jones.

1880, and January, 1881. The 3d section of the Act of 1872 does not give a lien on The court below, FUTHEY, P.J., applied chose in action in favor of wages claimants; the lien is limited to such property as is subject to seizure and sale the proceeds of the grass and old iron to on execution.

lien creditors, but allowed a preference Moneys received from the insurance of a woolen mill must be distributed pro rata among all creditors; the out of the proceeds of the corn, wheat wages of operatives in the mill are not entitled to a preference in such distribution.

and insurance moneys, to the wages claimThe proceeds of a crop of wheat, growing at the time

ants. the labor of operatives was performed and severed, by sale or otherwise, before the real estate is sold, is properly applicible to the payment of their wages, in preference to This appeal was then taken by John the lien of a judgment on the land. That the severance was produced by the sale of a receiver will not affect the rule.

Jones, a lien creditor. IT SEEMS that the proceeds of a grass crop, grown after claims for wages had accrued, should, however, be

March 19, 1883. STERRETT, J. The awarded to lien creditors in their order.

subject of complaint in the first and secIT SEEMS, ALSO, that the proceeds of old iron, which had formed a part of the machinery of a mill destroyed and specifications is that the amount realiby fire, should be distributed as real estate.

zed by the receiver from the sale of corn Certiorari to the Court of Common and the growing wheat crop, was erronePleas of Chester county.

ously awarded to the appellees on their Robert Preston was in 1878 the owner respective claim for wages, under the of woolen mills and other real estate, Act of 9th April, 1872, to the exclusion which was encumbered with liens. In of appellant's claim. that year he entered into copartnership

The corn was grown on the land bound with one Firth, and the business of manu- by appellant's judgment; but having been sacturing woolen goods was carried on by garnered in the fall before the receiver them under the firm name of “Robert

was appointed, it came into his possession Preston.” The stock and machinery in as personal property of the insolvent firm, the mill, and the real estate became, by in whose service the wages claimants were virtue of the articles, partnership proper employed. The wheat, having been sown ty. The firm failed, and on February 12,

the same fall, was a growing crop at the 1881, ceased operations. On the same day time the wages were earned, and in that Preston made an individual assignment condition it was afterwards sold by the refor the benefit of creditors. On June 22, ceiver as personal property. The learned 1881, a receiver of the firm was appointed judge was clearly right in so treating it.by the court. On June 1, 1881, the mills Growing crops, the product of agriculture, were destroyed by fire, having been in- pass to the administrator or assignee for sured the previous January in the name the benefit of creditors, as the case may of Robert Preston.

be, and are liable to be seized and sold on The assets for distribution were, (1) the execution as personal chattels of the debtproceeds of the sale of corn, grass and ors; Patterson's Appeal, 11 P. F. Smith, wheat; (2) the proceeds of the sale of old 294; Hershey v. Metzgar, 9 Norris 217.iron which had formed part of the machin- | All that is required is that there should be, ery of the mill destroyed by fire; and (3) as there was in this case, a severance, by moneys received from the insurance on sale or otherwise of the growing grain, mill. The corn was harvested in the fall before the land itself is sold. It is quite of 1880; the wheat was sown the same clear that the appellant, a judgment credifall; and the grass was grown in the 'tor, had no lien on the growing wheat

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crop or the products thereof. If he was or judgment entered before such labor is interested in the proceeds of either it was performed, shall be affected or impaired only as a general creditor of the insolvent thereby.” The 3d section of the act defirm. As to the proceeds of the old iron, clares that “in all cases of the death, inwhich had formed part of the machinery solvency or assignment of any person or of the mill destroyed by the fire, and the persons, or chartered company, engaged grass crop, which, in an agricultural sense, in operations as hereinbefore mentioned, was wholly grown after the claims for or of executions issued against them, the wages had accrued and while the land lien of preference mentioned in the first was in the hands of the receiver, the court, section of this act, with the like limitaupon principles recognized in Altemose v. tions and powers shall extend to every Hufsmith, 9 Wright 128; Reiff v. Reiff, property of said persons or chartered

, 14 P. F. Smith 134; Bausman's and Herr's company." Appeal, 9 Norris 178, and other cases, This clearly gives the appellees a lien on very properly drew a distinction in favor the personal chattels of the firm, including of the appellant as a judgment lien credi- the corn and growing wheat crop in questor; but no question as to these items tion, and also upon the real estate, subject arise in this case.

to the right of prior mortgage and judgAs we have seen, when the wages were ment creditors. The first and second asearned and the employers became insolv- signments are not sustained. ent, the corn and the growing wheat crop The question raised by the third and were personal property of the firm-chat- fourth assignments is whether the appeltels, not in any manner bound by the lien lees had a lien also on the insurance policy of pre-existing judgments, but liable to or proceeds thereof. When the mill, seizure and sale on execution. This being machinery, etc., were destroyed, the policy so, we are of opinion that, according to became a chose in action, and the money the true interpretation of the Act of 1872, afterwards realized therefrom came into the employees in the mill had a lien upon the hands of the receiver as part of the both, which adhered to the proceeds there- assets of the firm. As has already been of in the hands of the receiver, and hence observed, the act gives the employees the court was right in awarding that part therein named a lien, not only on the real of the fund to them. The first section of estate, but also on the personal goods and the act provides that all moneys due for chattels of their employers; but we think labor and services rendered by those be- it would be a strained construction to hold longing to either of the classes mentioned that it was intended to give them a lien on therein, “shall be a lien upon said mines, choses in action. There is nothing in the

, manufactory, business or other property, phraseology of the act or its supplements in and about, or used in carrying on said to indicate a legislative intention to exbusiness, or in connection therewith, to tend the lien beyond such personal propthe extent of the interest of said owners erty as is subject to seizure and sale on or contractors, as the case may be, in said execution. The Act of the 8th May, 1874, property and shall be preferred and first P. L. 120, postpones coal lease mortga

, paid out of the proceeds of the sale of such ges to the lien of wages mentioned in the mines, manufactory, business or other Act of 1872. By act of April 20, 1876, P. property as aforesaid ; provided that the L. 43, the wages claimants may, after the

; claim of such miner, mechanics, laborer expiration of thirty days from any volunand clerk, thus preferred, shall not exceed tary assignment for the benefit of credi$200." It is also provided in the 4th sec- tors made by their employers, enforce the tion of the act, “that no lien of mortgage collection of their claims, just as if no

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such assignment had been made; and if hold, but which at the time was missing. the assignee has sold the property, he In answer thereto, the sheriff informed

him that there was that amount of casing may be compelled to file his account there

which belonged to the property ; that he of forthwith. The last Act (June 12,

had loaned it to some one interested in an 1878, P. L. 207) gives the employees a oil well on the Booth farm ; that it was to preference over landlords in all claims for have been returned before the sale; that it rent of mines, manufactories or other real should be included in the sale, and that he estate held under lease, where the lessee also repeated publicly that he would in

would deliver it to the purchaser. He is the party employing the miners, me

clude the casing in the sale, and that he chanics, laborers or clerks, provided that would deliver it to the purchaser. This these workman shall give notice of the is the testimony of the two Brennemans nature and amount of their claims to the and of Charles Harrington. It is corrobolandlord or his bailiff before actual sale of is contradicted by no one except the de

rated by the evidence of Miles Sloan, and the property levied on.

fendant himself. Induced by this declaThe language employed in the several ration and agreement of Dunkle, the acts appears to contemplate a lien upon plaintiff bid off the property for the sum the employer's real estate and such per

of $385, and at once paid this amount to

the sheriff's clerk. sonal property as is ordinarily the subject of seizure and sale on execution or dis- contends, that the evidence ought not to

The learned counsel for the defendant tress for rent, and not upon choses in have been submitted to the jury for the action. We think therefore, that the purpose of establishing a personal underlearned judge erred in awarding the pro- taking on the part of the sheriff to sell ceeds of the insurance policy to the labor deliver the casing. But why not? Had claimants, to the exclusion of other credi- property as his own, no one, we think,

he as a private person been selling the tors. That part of the fund is not subject would contend that he would not have to lien in favor of any class of creditors, been bound by such a contract. His duty and hence it should be distributed pro

as an officer was a plain one; he had but rata among all.

to pursue the directions of his writ withDecree reversed at cost of appellees and

out undertaking either to sell or deliver

wha was not in his possession. Doubtit is ordered that the record be remitted less he would have so done but for the with instructions to distribute the fund in fact that he had previously and unwaraccordance with this opinion.

rantably intermeddled with the property, and made himself personally liable there

for by loaning it to an operator on the Dunkle v. Harrington.

Booth farm. Herein is found not only the Some of the personal property that had been levied

reason, but the consideration for this anomupon and advertised for sale was loaned by the sheriff to alous contract. By this arrangement with a third party, the sheriff told the bidder at the sheriff's sale that the property loaned by him was to be sold with

a purchaser at his sale, the sheriff relieved the other properiy in his actual possession. HELD, that himself from the undoubted obligation the bidder could recover from the sheriff.

which he was under, to the plaintiff in the Error to the Court of Common Pleas of writ, to account for the casing which he Clarion county.

had disposed of. If, then, this contract January 2, 1883. GORDON, J. On the was made for his own benefit, why was 15th day of June, 1878, a writ of levari it not personal, and why cannot it be enfatias, at the suit of W. P. Bratton against forced as such? We have as yet heard no Johnston and McIntyre, was issued to B. reason which ought to induce us to adopt B. Dunkle, as sheriff of the county, of a contrary conclusion, and we therefore Clarion, commanding him to sell a certain cannot agree to sustain the second and leasehold estate of the defendants as there fourth assignments of the plaintiff in error. in described.- On the day of the sale, and just before the bidding commenced, in

Of the two remaining exceptions little quiries were made by Harrington of the need be said, as they are of no consesheriff

, concerning some four hundred feet quence. The writ of injunction, or prohiof casing which had been upon the lease-bition, was properly admitted for the pur

2.

pose proposed, the contradiction of the the transcript is in other respects regular, defendant. It was directed to the sheriff and the summons shows that the damages and by him executed, and it might fairly alleged to have sustained are less than one be presumed that he knew its contents. hundred dollars, and there has been a trial In fact, however, an inspection of the on the merits, and the judgment entered paper shows it to have been of so little is for less than one hundred dollars, the account as a matter of evidence that we failure to set out the amount of the claim may well wonder why its admission was on the transcript does not seem to us to thought worthy of an exception.

be such a material irregularity as to warAs to the ruling out of the parol proof rant a reversal on certiorari.

The case of the contents of the advertisements, we seems to be ruled by Miller v. Savage (2 may, as an abstract proposition, admit Luz. Leg. Reg. 191). As to the authority

. that that action of the court was wrong ; | for referring to the summons, we refer to nevertheless, as we cannot see how evi- | Lloyd v. Sayer, (No. 205, October term, dence of that kind could affect the case 1882, Mss.) in any way, we will not consent to reverse The proceedings are affirmed. on a worthless abstraction, and this the rather as the defendant successfully op- C. P. of

Luzurne County posed the introduction of the very same

Miller v. Miller, kind of evidence on part of the plaintiff. The preceding acts of Dunkle as sheriff Divorce-Alimony pendente lite-Counsel had really little or nothing to do with the

Fees. main point of the case; the point on which 1. The wife petitioned for divorce on the ground of dealone it turned, the fact of their having si ortion tie patisband's answer simply deuied the allega

of petition ; a been a personal contract at the time of the reasonable allowance for counsel fees, etc.

A woman who is living in a state of adultery has 110 sale, by which he undertook to deliver the

claim upou her husband for support, and where this is property to the plaintiff. Upon the ques- shown clearly the court will refuse on application for

alimony pendente lite. tion of that contract the character of the advertisements could have no effect; hence

Rule to show cause why the respontheir admission or rejection was alike un- dent shall not pay the libellant a reasonimportant.

able sum to provide an attorney and proThe judgment is affirmed.

cure witnesses in her cause, and to main

tain and support her ad litem. COMMON PLEAS.

November 27, 1882. Rice, P.J. We conclude, after a careful consideration of

the evidence taken on this rule, that the apC. P. of

Luzurne County

plication for alimony pendente lite ought to Mulligan v. Knickerbocker Ice Co.

be refused. A woman who is living in a Where the transcript is in other respects regular, and there has been a trial on the merits, and the judgment is

state of adultery has no claim upon her less than one hundred dollars, and the process shows that husband for support, and where this is the damages claimed were less thau one hundred dollars, the court will not reverse because the amount of the clearly shown the court will, in the exerclaim is not set out on the transcript.

cise of their discretion, refuse an applicaCertiorari.

tion of this nature. The reasons for this The opinion of the court was delivered rule are forcibly stated by Thayer, P.J., April 16, 1883, by

in Stock v. Stock (11 Phila. 324.) RICE, P.J.—The exceptions to this re- The requiest for an allowance for councord were filed nine days before the ar- sel fees rest on a different basis. The gument court in November, 1882, instead answer of the respondent does not charge of ten, as strictly required by the rule of adultery against the libellant, and to meet court. But the third argument court has the issue, as the respondent has seen fit to been reached, and it is now too late to present it, she it entitled to a reasonable move, for the first time, to have the excep- allowance to pay counsel and to procure tions dismissed because they were filed a the attendance of witnesses. day too late.

The application for alimony pendente The jurisdiction of a justice of the peace | lite is refused, but it is ordered that the is determined, in an action of trespass or respondent, within twenty days from this of trover, by the amount of the damages date, pay to the libellant, or to her attoralleged to have been sustained, or the ney of record, the sum of twenty dollars value of the property claimed, and not by as counsel fees, and the sum of five dollars the amount of the judgment But where to procure the attendance of witnesses.

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