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what their report shall contain ; and, for a rule to strike of the judgment for amongst others that they shall state parti- reasons appearing of record—the reasons cularly "whether the road desired be ne- being that the plaintiff having given nocessary for a public or private road."'- tice to choose abitrators had removed the That seems to be the only provision in the cause out of the jurisdiction of the Court, Act to determine its character as a public and by his failure to have the notice road. That requirement the viewers in stricken off in the prothonotary's office this case have complied with. Their re- the judgment was irregular and void. port specifically states that they “judge the

The question now is, shall this be grantsame necessary for a public road :” 17 S.

ed ? & R. 388.

Under the 4th rule of Court, when a The report and the draft annexed both

rule to choose arbitrators has been entered, make the termini of the proposed road

and the day to choose arbitrators has gone reasonably certain, and seem to be in compliance with the road law, where roads by without a choice, the rule may be

stricken off at the instance of either parfor public use are petitioned for in every ty and at the costs of the party entering particular.

the rule. In the opinion of the court the first and 2d exceptions, first above recited, as well

In Camp v. Bank of Oswego, 10 Watts

133, it is decided that after a rule to arbitas the five remaining exceptions filed,

rate has been entered, a judgment by demust all be dismissed and which is now

fault can be rendered without striking off accordingly done.

the rule. The entry of such a rule does

not take the cause out of court nor deCOMMON PLEAS.

prive the court of its jurisdiction. The

court say : “If no step has been taken exC. P. of

Schuylkill Co. cept to enter the rule, and the time has Heffner v. Confair.

gone by when the arbitrators were to be Where a rule to arbitrate has been entered and the time chosen, there is nothing to prevent either to choose arbitrators has goue by, judgment by default may be rendered without striking off the rule to arbitrate.

party from treating it as a nullity, as it apRule to strike off judgmeut.

pears on the record itself, that the attempt WALKER, J. On the ist Oct., 1875, the

to arbitrate has proven abortive. writ in this case was issued, and a blank

See also Taggart v. Fox, i Grant 192— notice to choose arbitrators in October Hoffman v. Locke, 7 Harris 58. was placed in the sheriff's hands, with

By the act of 14 May, 1874, Pamp. authority to fill up the blank at the time of the service of the writ upon the de

Laws, p. 159, the defendant is not perfendant. This the sheriff neglected to do. mitted to arbitrate until a sufficient affi

davit of defence is filed. On 17 January, 1876, the plaintiff having first filed an affidavit of his claim and a In the present case the defendant candeclaration, took judgment for $113.79, not complain that he has been mislead by for want of an affidavit of defense. On


the action of the plaintiff, in entering the the same day the defendant's counsel ask- rule, for the court gave him one week to ed and obtained from the court one week file his affidavit, which he refused to do. in which to file an affidavit of defense, The judgment is therefore regular and as and, if this was sufficient, the judgment the opening of judgments is discretionary was to be opened.

with the court, this rule should be denied At the expiration of this time the de

as there is no equity in the application. fendant, without filing an affidavit, asked Rule refused.

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No 2.


YORK LEGAL RECORD. the annual dues of three dollars, payable

on the 31st of August thereafter, and that

the agent said he could not receive that as THURSDAY, MAR. 15, 1883.

it was not yet due, and that the plaintiff

would get notice from the company when COMMON PLEAS.

to pay the annual dues and everything he

would have to pay. That shortly afterOttemiller vs. New Era Life Association, No.2. wards, a general agent of the company, Insurance-Forfeiture of Policy-Non

who exhibited his credentials as such,

came and delivered to the plaintiff, the payment of Annual Dues.

policy with the assignment duly approved, In a suit ou a policy of insurance in a mutual company, plaintiff offered to prove, as a reason for live 11un-payment and the plaintiff asked this agent, about of annual dues thai he failed to receive notice that such dues were to be paid, that he had been told by the agents

the payments he would have to make on of the company that he would receive such notice,and that

the policy, who replied that he would get it was the custom of the company to send such notice. The Court rejected such offer and The plaintiff was pon- notice from the company when to pay the suited. On a motiou to take off the non-suit. HELD, That

annual dues and everything he would have such offer was improper and the nou-suit must be sus

to pay. That he relied upon these repreThe plaintiff knew, or was bound to know, when the

sentations of the agents of the company. annual dues were payable, and the usage of the company, and his reliance of receiving such notice, are no That he never got notice to pay the anexcuse for non-payment. The declarations made by the agents could not add to

nual dues, and did not know they were the original contract a condition to the effect that if he due until after the death of the insured, did not get notice he need not pay. A Mutual Life Insurance company is under no obliga

when he was notified that the policy was tion to give notice to its members of the time of payment forfeited by reason of the non-payment of of premiums or annual dues.

the annual dues. That after the death of Rule to take off compulsory non-suit.*

the insured and before the commencement On the trial of the case plaintiff offered of this action, the plaintiff offered to pay the policy of insurance in evidence, proved to the defendant the annual dues, and the the death of the insured, and offered to

defendant refused to receive them. This prove that one of the conditions of the

was to be followed by evidence, that it policy, viz: the payment of annual dues,

has been the custom of the defendant and was not fulfilled, because plaintiff had

like companies, to give notice to holders been told that he would receive notice of of policies of the time such dues became the time of payment of such dues, that it

payable. was the custom of the defendant company The certificate of membership or policy, to send such notices, and that he never is dated the 31st of August, 1878, that of received the same. The Court rejected the the assignment, June 19th, 1870, and of offer and entered a compulsory non-suit.

the approval of the company, July 1st, This rule was then taken, on the ground 1879. The party insured died on the 17th that the evidence offered was sufficient to

of October, 1879. The annual dues were excuse the non-payment of the annual

not paid or offered to be paid up to the dues.

time of his death. E.W.Spangler, W.C.Chapman, for rule. I do not think that the declaration of

Wm. Hay, Wm. Henry Smith, contra. the agents can have any greater effect than January 22, 1883. GIBSON, A. L. J.- the custom to give notice has, on the quesThe motion to take off the judgment of tion. The plaintiff knew, or was bound

to know when the annual dues were paynon-suit in this case is based upon this reason, to wit : that the facts offered to be able, and the usage of the company, and proved by the plaintiff on the trial to ex

his reliance upon receiving such notice, cuse the non-payment of the annual dues are no excuse for non-payment; Thompfalling due August 31, 1879, were suffici- son v. Insurance Co., 104 U. S. 252. The ent in law, to avoid the forfeiture of the declarations were evidently made with no certificate of membership.

view of binding the company. They were The plaintiff offered to prove, that at the plaintiff's offer to pay his dues in advance,

made in reply, in the one case, to the ,

and the remark was a natural one on his paid an assessment of twelve dollars and declining to receive the dues then, two or a half then due on the policy, to an agent three months before they were due, and of the defendant, and also offered to pay the assignment of the policy not yet ap

*See Ottemiller v. New Era Life Association, 2 York proved. In the other case, the declarachange of venue in this case.

tions were in reply to a question by the

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LEGAL RECORD 133, where a notion was made for a


plaintiff, about the payments he would the forfeiture, much less that it is a waiver have to make, not, whether he would get of the condition in the policy, or that he notice or not, as stated in the purpose of had a just and reasonable ground to infer one of the offers. These inquiries show that the forfeiture would not be exacted. that the plaintiff knew he had to pay dues The following provisions, among others, on the policy he had purchased. The are in the certificate : “Conditions which agents could not, by their declarations, shall release this association from all liabiadd to the original contract, a condition, lity; any omission or neglect to pay the to the effect, that if he did not get notice annual dues on or before the time stipulathe need not pay. The contract of insur- ed in this certificate.” The stipulation in ance, with all its conditions, had long since the certificate is that Henry Lentz, Jr., has been entered into, and the assignment of covenanted and agreed to pay to said asit to the plaintiff had already been sociation annually the sum of three dolmade, and had the approval of the com- lars on the 31st day of August each and pany in the last instance, and the declara- every year commencing on the 31st day tions were in no way an inducement to of August, 1878, and continuing so long him to buy the policy. There was nothing as the said Henry Lentz shall live.” upon which the plaintiff had a right to Rule discharged. rely as a ground that the forfeiture would not be exacted in case of non-payment at

Marshall v. Hale. the day. There was no notice required JudgmentOpening of-Evidence of inbecause of the uncertainty of the amount

debtedness. to be paid, by reason of dividends to be

The note with warrant of attorney to confess judgment, credited on the premium, as in Phoenix

and upon which judgment was entered against the defenMutual v. Doster, 3 York LEGAL RECORD

dant, was signed by him when he was in a drunken spree,

and on a petition to open such judgment he testified that or dividends in the hands of the company he had no knowledge of signing such note. The plaintiff

was unable to show clearly the defendant's indebtedness as in Girard Ins. Co. v. Mutual Co., i Out.

to him, to the amount of the judgment. HELD, to be suf15. But in the policy itself a sum certain

ficient cause to send the case to a jury. and a day of payment were fixed, and there Rule to open judgment, &c. was a condition of forfeiture in case of The facts are given in the Court's opinnon-payment.

ion. With this duty incumbent upon him,

W. C. Chapman for rule. whether the company gave notice or not,

Blackford & Stewart, contra. and whether the agents said he would re- January 22, 1883. GIBSON, A. L.J.ceive notice or not, the conduct of the There appears to be up in this case sufficompany in failing to give notice and in cient ground for the submission to a jury forfeiting other policies, can have no rele- of the question of indebtedness on the part vancy to the question of the plaintiff's of the defendant to the plaintiff. The deobligation in this case. And if the prac- fendant denies in his affidavit and depositice of the company, had been as intimat- tion, all knowledge of the judgment note ed in one of the offers, to give notice only on which this judgment is entered, and of to members insured, and not to benefica- his having ever signed such a note. The ries, or their assignees, it accounts for this payee and legal plaintiff, though testifying plaintiff, an assignee not receiving notice; to the fact of having seen the defendant or if the declarations of the general agent sign the judgment note, does not give that to the plaintiff, can be construed to be a satisfactory statement as to the indebtedmisrepresentation to him, still he had no ness of the defendant to him, which ought right to rely upon it. It is the custom of to be required of him, and on allegation, these mutual life insurance companies to under oath, on the part of the defendant, give notice to their members of the time in a judgment entered on a warrant of of payment of premiums or annual dues. attorney, of want of indebtedness. But the law is declared to be that they are The intercourse between the parties, as under no obligation to give such notice; shown by the depositions, the unfortunate Thompson v. Ins. Co. supra; Girard habits of inebriety shown on the part of Mut. v. Mutual, supra. I cannot say that the defendant, and all the circumstances an agent telling a party that he will get which appear surrounding the transaction, such a notice, and the company fails to require at the hands of the plaintiff a reason give it, that the holder of the policy is for the execution of the judgment note bemisled or lulled to sleep, and, that the com- yond any suspicion of imposition or fraud. pany is thereby estopped from setting up It appears that the defendant left home on

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the day of the date of the judgment note

Metzgar v. Shetter. and was about the hotel of the plaintiff on a drunken spree for three or four days, CertiorariJustice's record— Plea of setand returned home in a state which result- tlement-Time returnable— Variance. ed in an attack of delirium tremens.

The Justice's summons was "being in plea of settlement One of the itenis given by the plaintiff shown in the record not being like actions against baliffs,

of book account.” Held, That the claims and credits as part consideration for the judgment receivers, partners or trustees, the exception to the sumnote, was the price of a watch purchased

The summons was made returnable at eleven o'clock, when they were together, the defendant, instead of between certain hours.. Held, That the Act of

26 April, 1855, while it permitted the justice to make the being in liquor at the time, and sold after- summons returnable between certain hours did not make wards by the plaintiff to the defendant at it obligatory upon him to do so, and if he did not, it is not an exorbitant profit. The circumstance of The summops was plea of settlement on book account"

and the docket read 'summons in debt on plea of settlethe present of a gold watch and chain

ment on book account." HELD, To be an immaterial va. costing fifty dollars, by a man in the defendant's apparent position in life, to the plain

Certiorari to F. R. Prowell, Esq. tiff's wife, accompanied by the reckless The grounds upon which the exceptions and senseless behavior of the defendant

are based are given in the Court's opinion. on the occasion, indicative of the phrensy

D. K. Trimmer, certiorari. of intoxication; the watch purchased having been paid for by the note of the

E. W. Spangler, contra. defendant to the jeweler, followed by the

January 22, 1883. GIBSON, A. L.J.subsequent return of the watch by the le- The exceptions to this certiorari are to the gal plaintiff and the redemption thereby summons issued before the justice : of the note by him on which he was sure- First. That “being in plea of settlement ty, and suit thereon instituted by the said of book account, the justice had no jurisplaintiff against the defendant, though diction therein. This is based upon the disavowed as a part of the consideration erroneous idea that the suit sound in an of the judgment in question, nevertheless action of account render. But a large gives rise to the suspicion of advantage portion of the jurisdiction of justices of being taken, at or about the time of the the peace would be ousted, if just such execution of the judgment note, of a man claims and credits as this record shows, rendered incapable of discretion by being were obnoxious to the charge of being addicted to the use of intoxicating liquors. like actions against baliffs, receivers, part

If there is an actual indebtedness on the ners or trustees, and subject to the perpart of the defendant to the plaintiff of plexities of account render or a bill in the amount of the judgment, and such was equity. The exception is dismissed. shown with reasonable certainty by the Second. "That the proceedings are irdepositions, the question whether or not regular in making the summons returnthe defendant was in such a state of in-able at 11 o'clock instead of between certoxication as to impair his intellect, at the tain hours." The third section of the act time of signing the judgment note, would of 26 April, 1855, P. L. 304: Bright. Purd. be the only ground upon which this ap- 851, pl. 44, provides “that all summons isplication could be based ; Noel v. Karper, sued by any alderman or justice of the 3 P. F. S. 97. But where there is an ab- peace, may designate the hours of the day sence of proof, by the ordinary methods between which the same shall be returnof any consideration, and beyond the item able; and if either of the parties fail to above mentioned, only a general statement appear during the time so designated, it by the legal plaintiff, that money was loan- shall be lawful for the said alderman or ed by him to the defendant, the aggregate justice of the peace to render judgment, of the sums stated not equalling the amount or otherwise determine the same, as is of the judgment, together with an indif- provided by law." ference manifested by him as to books In the case of Vought v. Sober, 23 P. being produced containing charges of the F. S. 49, an hour was fixed for the return same, which indeed are not positively of the summons, and on adjournment to anstated to exist, there is enough appearing other day, and an hour fixed. In default in the case to base a presumption unfavor- of appearance the plaintiff was non-suited able to the plaintiff's claim, and which by the justice. This was affirmed by the

, requires such an investigation of the facts Supreme Court. No objection, however, as only a trial on the merits of the claim was made at any stage of the proceedings. will afford. Rule made absolute.

In the case of Lindsay v. Sweeny, 6 Phil.

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309, the proceedings before the justice were former Justice's record to be defective, set aside, because of the practice in Phila- and therefore worthless for the purpose delphia, that where an alderman enters offered, and gave judgment for the plainjudgment by default, the hour should be tiff. This certiorari was taken, based upon named. But such has not been the practice the rejection of the above offer. here. Judge Brewster says in his opinion,

E. W. Spangler, for certiorari. in that case, that he should be disposed to

D. K'. Trimmer, contra. sustain the judgment, becausea reasonable presumption should be allowed in favor of January 22, 1883. GIBSON, A. L.J.-regularity of the proceedings before magis- The exceptions on this certiorari are based trates, and that the act of assembly pro- upon the ground that in a suit between vides. 22 Sec. of Act of March 20, 1810, i

the same parties before F. R. Prowell, Bright. Purd. 412, pl.23, that the proceed Esq., a justice of the peace, of York Counings shall not be set aside for want of for- i ty, on the 7th of August, 1882, summons mality &c., if it shallappear &c., that judg

was served on the defendant in that suit, ment was rendered on the day fixed to the who is the plaintiff in this, returnable on precept, making no allusion to the hour."

the 12th day of August, 1882, and that on The act in question provides that the the hearing before said justice the defendjustice may designate the hours of the day cording to the provisions of the act of

ant did not present his claim as set off between which the same shall be return- | Assembly, and hence was barred from the able, and if either of the parties fail to ap

further prosecution of his claim. pear within the time so designated it shall be lawful for the justice to render judg

The act of 20 March, 1810, Sec. 7 Bright. ment. But it does not make it obligatory Purd. 854, pl. 54, provides : “A defendant upon him to do so. And if he does not I

who shall neglect or refuse in any case do not think it fatal to the proceedings.

to set off his demand, whether founded Third. That the docket of the justice upon bond note, penal, or single bill, shows a different cause of action from that damages on assumption, against a plain

writing obligatory, book account mentioned in the summons. On the dockit is “summons in debt on plea of settle- of one hundred dollars, before a justice of

tiff which shall not exceed the sum ment on book account," and the summons leaves out the word "debt.” This is im- barred from recovering against the party

the peace, shall be and is hereby forever material in a suit before a justice.

plaintiff by any after suit."

In the case Proceedings affirmed.

of Groff v. Ressler, 3 Casey 71, where two

suits, under similar circumstances, were Shetter v. Metzgar.

carried on without objection, both proCertiorari-Former suit between

ceedings were held valid. But here an

objection was made at the hearing. A parties.

paper was filed on behalf of the defendsuit a Justice of Peace suit against mi. before another Justice. On the hearing taining the suit, followed, after judgment and obtained judgmeut by default. Afterwards. brought ant, protesting against the justice enterM. offered in evidence the record of the former suit, as a bar to plaintiff s recovery in the present case. The evi- , by a certiorari, on that exception. dence was rejected, and judgment entered against the defendant. 'HELD, on certiorari, that the neglect of the Judge King in Slyhoof v. Fitcraft, I present off in first suit was a bar to any subsequent action, and the Ash. 171, explains the principle as appliproceedings must be set aside.'

cable to such a case. That where there Certiorari to Wm. E. Patterson, Esq. exists two tribunals possessing concurrent

Metzgar brought suit against Reuben and complete jurisdiction, the jurisdiction Shetter before Esquire Prowell in a plea of that tribunal is exclusive which has of settlement on book account, and ob- first possession of the subject matter of the tained judgment by default, defendant re- controversy. lying on supposed defects in the sum- This suit was brought on the 7th of mons as being sufficient to oust the Jus- August, for hearing on the 12th of the tice's jurisdiction. See Metzgar v. Shet- month, yet a summons was issued before ter, supra. Afterwards Shetter sued another justice on the uth of August, Metzgar before Esquire Patterson, and pending the return of the first summons, upon the trial Metzgar offered in evidence by the defendaut in the first suit. This is the record of the former suit as a bar to precisely the case the act of assembly the latter. The Justice refused to con- was passed to remedy. sider the record as a bar, holding the Proceedings set aside.


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