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she furnished the money for all the pay- tion was subsequent to delivery of the ments that were made. For the present deed. If the record of the Orphans' this question is settled by the verdict. The Court failed to show authority in the testimony touching it was submitted un- trustees to make the deed to Rebecca C. der fitting instructions, the pith of which Meyers, and for that reason it did not was, “she must show that the property operate as a conveyance to her, it was was bought for her ; that she had the pertinent testimony, with other testimeans to buy with, and that she applied mony, to establish the alleged resulting those means in payment of the purchase- trust.

trust. There is no evidence that the deed money. And this she must show by evi- appears to have been altered, or that the dence at once clear and so full and satis- signatures were forged ; but there is testifactory that the jury can rely on it with mony that the signatures are genuine, and reasonable certainty.” Taking her alle- no appearance of erasure on the face of gation as true, the title vested in her by a the deed. The testimony of Dennis Meyresulting trust, even if the deed was made ers by no means warrants submission to to her husband. The owner of land is the jury to find that any word had been not estopped from setting up his title taken out and others inserted instead.

. against judgment creditors, though they The seventh, eleventh, twelfth, thirteenth had no actual or constructive notice of his and fourteenth assignments are not sustitle at the time they gave credit or filed tained. the judgment against the occupant. A

It was competent to prove that E. J. married woman is not bound to record

Meyers bought the property for his wife, her deed under pain of losing her land if and the testimony constituting the fifth seized by her husband's creditors. The and sixth assignments goes no further.defendants' third, eighth and tenth points It was confined to the request of the wife were rightly refused.

to purchase, and to his statement made Nor is there error in the answer to the immediately after the sale that he had fifth point, for it adapted the proposition purchased for her. to the evidence before the jury.- Evidence of the declaration of a party The court was not bound to affirm or

in possession in some circumstances, is deny the proposition that, if the wife pur- admissable in his own behalf to show how chase land and pays for it with her own he claimed, or the extent of his claim, but money, and has the deed made to her

not to show that he had paid for the prophusband, there is no resulting trust. It erty or that it had been vested in him by did not arise upon the evidence. And the deed or otherwise. The offer set out in learned judge may have believed that the eighth assignment was to prove poshusband and wife are unequal in power session and claim of ownership of the and influence over each other, and that property ; but testimony was afterwards when he claims her property has been received that the plaintiff said her money vested in him it ought to appear in the paid for it. In the argument this was circumstances that it was done without treated as if received under the offer, for undue influence upon his part.

which reason we note the assignment. Nothing on the face of the deed auth- The evidence of her declaration respectorized its rejection as evidence. If it was ing payment of money is not within the not all written by the same hand, in the exception. absence of erasure or interlineation the It was material for the plaintiff to espresumption is that it was all written be- tablish the fact that she had money to fore sealing. The burden was on the de- make the payment for the property in adfendants to show that the alleged altera- | dition to the sums she had loaned. After

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Charles Shank had testified that the plain- Sur rule for a new trial. tiff's father came to her house the evening This was an action of replevin for a before Christmas, and "handed over to spinning machine. Plaintiff had purher, a Christmas gift—a roll of something chased it from one member of the firm of -looked like a roll of money,” he was al- Chappel & Taylor, who were the defendlowed to say that, on the next morning, ant's tenants of a mill, and received a bill she said “the Christmas gift her father of sale for the same. gave her was $500. No authority has

Plaintiff went to the mill to get the mabeen cited which allows a party to make chine, but, finding it closed, called upon out a case in that way. Were it permitted the defendant, the landlord. Defendant a party to prove such declarations he told plaintiff that rent was owing, and he could readily prepare a multitude of wit would not let the machine go—that he nesses. We are of opinion that it was

held it for the rent. error to admit the testimony set out in the

Taylor, of the firm of Chappel & Tayninth assignment, and for that the judg-lor, the tenants, then handed the defendment must be reversed.

ant the key of the premises. Before the The only remaining assignment that defendant could get a constable to make will be remarked is the tenth. It does formal distress, this replevin issued, and not appear by the record, as printed that plaintiff took away the machine. Under the defendants objected to the trial or

the evidence the judge trying the cause taking the verdict because of the non

instructed the jury to find in favor of the joinder of the plaintiff's husband. Sec- defendant, the landlord, for the rent in tion 39 of the Act of 1850, P. L., 571, provides, that for recovery of any prop

July 14th, 1883. ELCOCK, J.-The queserty secured to a married woman by the

tion is, whether a landlord, under a claim Act of 1848, suit may be brought in the for rent, can hold possession of personal name of herself and her husband, to her

property previously sold by the tenant, use ; and section 2 of the Act of 1856, P. demanded by the purchaser, but not deL., 315, enables her to bring suit alone if livered, and remaining on the premises, her husband has deserted or separates unless actual formal distress was made. himself from her, or neglected or refused

Distress is the right to take property to support her, or she had been divorced from his bed and board. Had the defend- for payment of rent, and is so ancient a ants objected, doubtless the court would remedy that its origin has never been have heard them. The plaintiff had a

traced. Our Acts of Assembly on this right to move to, amend, and still has that subject do not define it, and merely extend right, and would be allowed to do so in

the common law remedy in the cases specithis court, under the circumstances, if the fied therein, and define a mode of prowere not reversed

cedure after distress made. The goods

another ground.

of a stranger on the demised premises are

alike liable to distress, save those on storJudgment reversed and venire facias

age in the way of trade. When the de novo awarded.

plaintiff made demand for the personal COMMON PLEAS.

property in this case the landlord replied

that he held it for rent, and would not let

Philadelphia Co. it be delivered. Was this the commenceFurbush v. Fisher.

ment of a distress? In Wood v. Nutt, 5 A landlord, under a claim for rent, can hold possession Bingham ro, a landlord to whom rent of personal property previously sold by the tenaut, demanded by the purchaser, but not delivered, and remain- was in arrear, hearing his tenant and a ing on the premises, even though an actual formal dis

stranger disputing about the property of

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an article on the premises early in the the 14th of May, 1883, an order was made morning, entered and said: “The ar- by Judge Rice that the rule in this case, ticle shall not be removed till my rent is stood over until the next argument court, paid." The stranger, nevertheless, re- with leave to the defendants in the meanmoved the article. On the same day, after time to take depositions. the removal, the landlord sent his broker of this was to ascertain whether the omisto distrain for the rent.

sion of the defendants to file the proper Held, that the distress was sufficiently affidavit for an appeal was caused by the commenced by the landlord to entitle him fault, fraud, or misconduct of the magisto the article in question. Chief Justice trate, and whether the defendants were Cockburn, in Cramer v. Mott, L. R. 5 Q. or were not themselves guilty of laches. B. 357, says : "there need not be an

n The deposition of J. C. Williamson has actual seizure to create a distress; it is been taken. It shows that after calling enough that the landlord or his agent at the alderman's office during business takes effectual means to prevent the re

hours for the purpose of taking an appeal, moval of the article from off the premises and finding it locked, he met the alderman on the ground of rent being in arrear; in the court house. They went together and he does this when he declares that to the bar office, where the alderman the article shall not be removed until the made out a bill of costs, which Williamrent is paid."

son paid. Bail was given for the appeal, The same doctrine has been held in and the transcript was afterwards forHutchings v. Scott, 2 M. & W. 809, and warded by the magistrate by mail. Mr. Swann v. Falmouth, 8 B. & C. 456, and

Williamson states that nothing whatever

was said to him about an affidavit, and are cited as authority by Taylor's Landlord and Tenant, $ 578. The question had known that the law required it.

that he was prepared to make one if he has not been authoritatively determined in had known that the law required it.

The alderman is careful to state in his Pennsylvania, but as the common law right of distress is what exists here, the transcript that the defendants failed to file authorities cited would appear to govern

the required affidavit. This fact is impor

tant as showing, first, that the alderman the case. No question was raised but

knew that an affidavit was necessary;

and what the article was distrainable, for it was put in the demised premises by the secondly, that he failed in his duty in actenant for trade purposes, and was merely cepting payment of the costs and taking

bail for the appeal without apprising Mr. fastened to the floor by wooden screws.

Williamson of the further requirements of If it were part of the realty the plain- the law. This was misconduct on the tiff would have no remedy, because he part of the magistrate, by which the decould not replevin it: Roberts v. Dauphin fendants were deceived and misled. Bank, 7 H. 71; Overton v. Williston, charged, and it is now directed that the

The rule to strike off the appeal is dis7 C. 155.

defendants have twenty days in which to We see no error in the binding instruc- perfect their appeal according to law. tion given to the jury on the trial, and the rule for a new trial is discharged.

Will—-Construction of --Testatrix was

a widow with three young children. One C. P. of

Luzurne County.

of the provisions of her will was as folSwallow v. Red Ash Coal Co.

lows: "I wish my aunt to take charge of

my children, and to receive annually from It is misconduct on the part of a magistrate to omit to inform a party who has given bail for an appeal, and

my estate for her services $500.Held, paid the costs, that an affidavit is also required to perfect that on the youngest child attaining its ine appeal,

majority the payment of the $500 ceased. Rule to strike off appeal, etc.

-Heuson & Emlen's Appeal, 40 Legal June 24, 1883. WOODWARD, J.-On | Intelligencer, 288.

VOL. IV.

No. 22

YORK LEGAL RECORD. the water, where the pumps of the plain

tiff are worked, is polluted and rendered THURSDAY, AUGUST 2, 1883.

unfit for domestic use or drinking, and al

leging irreparable injury and praying for COMMON PLEAS.

an injunction. York Water Company v. Glatfelter.

The answer of the defendant denies Change of Venue-Court Interested-Lo- that he caused noxious substances to flow cal prejudice.

into the water of the Codorus creek, Plaintiff filed a bill against defendant, allegiug that

whereby, at the place where the pumping the detendant had erected a paper mill on the Codorus creek, and had caused noxious substances to flow from

works of the plaintiff are located, it is said mill and thereby rendered the water unfit for domestic use. Defendant in his answer denied the charge. De

polluted and rendered unfit for domestic fendant filed his petition for a change of venue, alleging that the Court, (or any member of the bar who might be

use or drinking. This is the substance of appointed Master or Examiner), was interested in the question to be determined in the suit, being water renters.

the charge in the bill and of the denial in HELD, not to be sufficient grounds for a change of venue.

the answer. The question in issue is purely ove of fact, and is so abstract in its character that it cannot give rise to any

The defendant has filed a petition, under bias or prejudice whatsoever. The defendant amended his application, and setting

the above-mentioned act, praying for a forth the list of stockholders of the plaintiff company alleged that a large number of the inhabitants of the county change of venue, alleging that any memhad interest in the question involved therein adverse to to the defendant. HELD, That the mere fact that these in

ber of the York Bar, who might be apdividuals were stockholders of the plaintiff company is not evidence of the fact that they have an interest in the pointed either examiner or master, and the question involved adverse to the defendant.

members of the Court, are 'interested in The interest that the stockholders might have by the benefit accruing from pure water, is one that can only the question to be determined in the suit. arise after it is ascertained that the defendant caused the impurity of the water which is the subject of complaint. The ground upon which this application Motion for change of venue.

is based, is, that as the judges of this court The grounds for the motion are given use the water furnished by the plaintiff in the Court's opinion.

company, and are renters of the same, The case was argued before Judges they are, therefore, personally interested Wickes and Gibson, and the opinions be- in the question to be determined by this low are signed by both judges.

suit. That question is, whether or not the V. K. Keesey, for motion.

defendant has caused noxious substances Jas. W. Latimer, contra.

to flow from his paper mill, by which, the July 30, 1883. GIBSON, A. L. J.-The water, where the plaintiff's pumps are

July 30, 1883. GIBSON, A. L. J.-The worked, is polluted and rendered unfit for first section of the act of 30 March, 1875,

domestic use or drinking ? P. L. 35, provides for a change of venue, in any civil cause in law or equity, “when- This case might present a different asever the judge who by law is required to pect, if it was an ascertained and admittry or hear the same, shall be personally ted fact that the pollution of the water interested in the event of such cause or in complained of, was caused by the refuse the question to be determined thereby." flow from the defendant's paper mill, and

The bill in this case sets out, that in he justified it by claiming a right to such pursuance of a supplement to its charter, use of the stream. But he denies the althe plaintiff, a water company, brought legations of the bill and sets out other into the borough of York an addittional causes, in his answer, which may

account supply of water from the Codorus creek, for the impurity of the water. It becomes, by means of expensive machinery, in the therefore, a matter of judicial investigayear 1850. That the water was then tion whether the matters alleged in the pure. But that defendant has since erect- bill are the cause of the pollution of the ed a paper mill on said creek, above the water supplied by the plaintiff to those plaintiff's works, and has caused noxious who use it, or whether there are other substances to flow from the said mill, and causes. Unless the refuse flow from the

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defendant's paper mill is the cause of the July 30, 1883. Gibson, A.L.J.—After impurity of the water there can be no the foregoing opinion was delivered in advantage gained by the water company open Court, the defendant, by his counsel, or renters, by this suit going against the moved to amend his application, in order defendant. The water might still be im- to present reasons for change of venue pure from other causes. Unlike a decree, under the fifth clause of Section I, of the based upon probabilities, or the mere Act of March 2, 1875. The amendment findings of testimony, relief here must was filed, setting forth specifically the depend upon the actual fact.

number of stockholders, individual and The old law, relating to special courts, aggregate, of the plaintiff corporation, the provided for the same, when the judge number of shares held, the par value of should be personally interested in the event the stock and its market value. The of a suit. A distinction as to being intera

Court have carefully reconsidered the apested in the event of a suit and being in- plication in this point of view. terested in the question had been made in

It will be observed that the said fifth reference to witnesses. So, in the act clause does not only provide that: “Whennow in view, the legislature has provided ever a large number of the inhabitants, for a change of venue where the judge'is &c., have an interest in the question inpersonally interested in the question to be volved therein," but it further says, an indetermined by a suit. But to hold that a terest “adverse to the applicant.” Acquestion like the one involved here, is cording to the provisions of the second within the provision of the act of 1875, section of the act, the Court must be "sa. would send away a large number of cases tisfied of the truth of the facts alleged." which could not have been in the con

That is, in this instance, of an interest, adtemplation of the legislature. Almost all

verse to the defendant, or of such facts as causes of a general public interest would lead satisfactorily to that conclusion. This have to be tried out of their proper venue the Court must be satisfied of, before the -causes relating to county and municipal oath of the applicant can avail to show affairs, matters relating to taxes, the public that he believes he cannot have a fair and comfort, nuisances and the like. The in- impartial trial.

| terest contemplated must be a personal interest, as indeed the act says. But the

That a large number of the inhabitants question here arises on an issue of fact of the Borough of York are stockholders only, so abstract in its character that it of the York Water Company, is not evicannot give rise to any bias or prejudice dential of the fact that they have an inwhatever. Is the fact so, or not?

terest in the question involved in this

cause adverse to the defendant. The These reasons also apply to the other

value of stock, so far as it appears in the provision of the act of 1875, invoked in

amended application, is not impaired by support of this application. There is no

anything involved in the cause. Nor is it just ground for presuming local prejudice, or any interest adverse to the applicant, or alleged that it will be depreciated or enthat a fair and impartial trial cannot be hanced in value by the issue of the cause had here of the question.

either way. The only plausible ground

for averring any interest whatever in the Motion overruled.

question is, that if, after investigation, the [The above opinion was read in Court defendant is found to be the source of the on May 12, 1883, but the defendant's coun- | alleged annoyance, there would be benesel filed an amendment to his application, fit accruing to the company and the pubwhereupon it was withheld, and after- lic by having the nuisance removed. But wards filed with the following:]

that interest can only arise after it is as

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