INDEX OF CASES REPORTED

Affidavit of defense-Several de- necessary to reimburse any of its citizens fenses in the same affidavit.

Affidavit of defense-Copies of instruments of evidence need not be attachedDefense in bar and set-off and counter claim in same affidavit of defense per-bond. Such a bond is not within the statute missible.

Judgments-Striking off and opening

A subscription contract for the purchase-Forgery-Evidence sufficient to meet of stock of a corporation to be formed is tri-responsive answer.

lateral, and even if fraudulent as between two of the parties, it can be enforced for the benefit of others; therefore, it is not competent to defeat such a written contract by setting up agreements made in parole with the agent who procured the subscription. -COMMUNITY HOTEL CO. V. BENTZEL, 109

-RUPP, FOR THE USE OF WINEKUR, V. Mc-
LAUGHLIN, 125

APPEAL.

Appeal from magistrate-Appeal not filed in time.

Where an appeal was taken from the judg

Written contract containing stipulation against modification by oral agreement of an alderman on October 3rd, and ment Addition of chart to contract-the next term of court began on October Defense not in affidavit of defense.

-LEE LASH CO., INC., V. RUSSEL SALES CO., 189

AMENDMENT.

26th, and the appeal was not filed in the office of the prothonotary until November 10th, the appeal was stricken off.

---BENNETT, ALLISON CO. V. HOFFMAN, 49

Justice of the peace-Appeal-Affidavit-Who may take-Mandamus.

The affidavit upon an appeal from the judgment of an alderman or a justice of the peace is not required to be made before the justice from whose judgment the appeal is taken.

In such case the affidavit may be made before a notary public, but it must be filed

Practice-Amendment of the form of with the justice at the time the appeal is

taken.

Mandamus is the remedy to compel the justice to allow an appeal in such case.

"The decision of a preliminary question of procedure or practice by a justice of the peace, however judicial in character, may be reviewed, and in case of an erroneous decision thereof by him, he may be required by mandamus to perform his duty toward the appeal, notwithstanding his decision of the preliminary question."

the statement shows that no profit resulted "A justice of the peace may be compelled to the defendant from its alleged negligence. to perfect an appeal, when the facts are not -STEWART V. PEN ARGYL NATIONAL BANK, in dispute, and where he has reached wrong conclusion from the facts, where only

203

a

212

INDEX OF CASES REPORTED

one course is open to him on the facts, his
plain duty is to follow that course and his
refusal calls for a mandamus."
-AMERICAN RAILWAY EXPRESS CO.
BERRY, 83

Appeal Judgment for wages
Striking off-Transcript-Bail.

time to the same work; that the work of
the counsel covered many unusual phases of
the law; required legal research, diplomacy
V. and unremitting labor in addition to heavy
responsibility, and that the assets of the
bank were largely increased by his industry
and skill, and the amount of the fees was
supported by the testimony of honorable and
experienced leaders of the bar, and approved
by the secretary of banking, exceptions to
the payment of $35,000.00 for counsel fees

Defendant, against whom judgment has
been given for wages of manual labor, must,
in taking appeal, comply with Act 1845, P.
L. 188, and transcript of appeal must show
that sureties as required have been provided.
And where defendants fail to answer affida-
vit quoting said defect and have made no

were dismissed.

-SECRETARY, OF BANKING V. CITY BANK OF
YORK, 121

Husband and wife — Attorney's fees

effort to give bail, appeal will be stricken off. for services rendered in adjusting mar-
ital difference -

-JOHNSON V. STERN, ET AL., 115

therefor.

Appeal

-IN RE APPOINTMENT OF VIEWERS, 43

ARCHITECTS.

Architects-Act of July 12, 1919, P. L.
933, construed as to those who practiced
architecture before its approval.

The Act of July 12, 1919, P. L. 933, was not
intended to make unlawful the practice of
architecture by one who had been in the
The
practice of it for more than one year.
only prohibition in regard to such a one is, he
may not use the title "Registered Architect."

Liability of husband

Exceeding speed rate-Evidence-One
witness-Act of June 30, 1919, P. L.
678.

Defendant was convicted before a justice
of the peace of the violation of Section 19,
of the Act of June 30, 1919, P. L. 678, from
which conviction defendant appealed, con-
tending that no conviction could be had un-

One who had been in the practice of archi-
tecture for about thirty years before the pas-
sage of the Act of July 12, 1919, P. L. 933,
was not within the prohibitory part of said
act, and the fact that he failed to register in
accordance with the provisions of the act and
did not file an affidavit in accordance with
the provision of the last paragraph of Sec-
tion 6, of the act, although he has held him-
self out as an architect, did not prevent his
recovery of compensation for the perform-der said section with the testimony of one
ance of architectural services rendered un-
der a contract entered into more than five
years after the passage of the act.
-McCLYMONT V. GITT, 169

Plaintiff's

witness alone, and in order to convict of
speeding the rate of the speed must be timed
over a measured stretch. The contention of
the defendant is erroneous, for when an ap-
peal is heard in court the laws of evidence
apply and one witness is sufficient to convict.

statement-Architects--In-COMMONWEALTH V. CLARK, 105
action for services in preparing building

plans, averments of plaintiff's capacity Contributory negligence-Automobiles
not necessary-Copy of contract be--Collision at crossing.

tween defendant and third party need
not be attached to statement.
-McCLYMONT V. LANASA, 25

ATTORNEY'S FEE.

Attorneys' fees.

In the liquidation of a state bank in which
the assets were upwards of four million dol-
lars, and it appeared that counsel for the
liquidator devoted practically his entire time
for two years to the service of the liquidator,
and for two more years devoted much of his

Where a south-going automobile is stop-
ped at the northwest corner of a wide street
to make a left-hand turn and a woman pas-
senger in the automobile sees, at a distance
of 250 feet, a truck approaching from the
south, she is under no duty to warn the
driver of what she sees before they start,
inasmuch as the danger is not imminent.

In such case, if the automobile commits
itself to the crossing, it becomes the duty of
the driver of the truck to have his vehicle
under such control and to use such care as
are necessary to avoid a collision.

HENRY, ET UX., V. E. & S. MOTOR TRANS-
PORTATION COMPANY, 130

Automobile

collision-Responsibility

of owner of rented car to another.

The owner of an automobile is not liable

for damages caused by a collision while it
was being used for purposes of his own by

a party who had rented it.

Where, in an action for damages resulting
from an automobile collision, the statement
avers that the defendant's automobile was
driven by a person who had hired it from
him, it cannot be assumed from the hiring
that the driver was the defendant's agent,
although he is referred to as such in the

statement, and his alleged negligence does
not constitute a cause of action against the
defendant.

-EISSLER V.

INC., 187

213

The property of a partnership in the
hands of a receiver, however, does not pass
to the trustee in bankruptcy of the surviv-
ing partner until the distribution in this
court has proceeded to the point of payment
of the firm's debts and of the interest of the
representative of the deceased partner not
in bankruptcy.

-FROESS V. FROESS, 51

BLANKS.

Fraud

Negotiable instruments
Holder in due course-Not payable at
fixed or determinable time-Non-nego-
tiable-Subject to original defenses—
Filling in blanks - Negotiable Instru-
ments Act 16 May, 1901, Sec. 14, P. L.
194.

-BAKER, EVANS & CO. V. DEMETRE, ET AL,, 90

BLOOD OF FIRST PURCHASER.
Wills-Later clause may enlarge a

UNITED DRIVE IT YOURSELF, life estate in prior clause-Blood of first
purchaser.

Automobiles-Red light in rear-Act
of June 14, 1923, P. L. 718.

Section seventeen of the Act of June 14,
1923, P. L. 718, which requires every motor
vehicle to display a red light in the rear, ap-
plies only when the vehicle is being driven
on the highway or is standing parked along

it, and not to a motorcycle being pushed
along to a street light in order to ascertain

what caused its machinery to stop.

The failure to show a tail light does not
make a motor vehicle driver liable for an
accident where this could not have been a
contributing cause of the accident.
-SINOPOLI V. ARMSTRONG, 195

Bankruptcy Insolvency Rights of
state and federal court-Partnership
When property passes to trustee in bank-
ruptcy.

The effect of bankruptcy is to suspend the

proceedings in the state court, the jurisdic-
tion of the federal court becomes paramount

-YOHE ESTATE, 179

BOARDING HOUSE KEEPERS.

Boardinghouse keepers-Act of April
20, 1876, P. L. 45, not applicable to spe-
cial contract fixing rates
statement—Averment of time of making
Plaintiff's
loan necessary.

Section 2, of the Act of April 20, 1876, P.
L. 45, requiring keepers of boarding houses
to post a copy of their rates, does not apply
to a case where boarding and lodging was
furnished under a special agreement at an
agreed price.

In an action for money loaned, it is re-
quisite that the plaintiff's statement set forth

the date upon which the loan was made.
anything else, was held defective on prelim-

inary answer.

-HAVERCAMP V. BECKER, 110

BONDS.

Joint county toll bridges-Authority
of counties to erect-Apportionment of
the cost "On the boundary"-Power to
collect tolls-Tolls are not taxes-Bonds
for payment of joint toll bridges-Ap-
Necessity of tax for payment of in-
plication of tolls to interest and principal
terest and principal-Constitutional law

and exclusive and the authority of the state-Act of 1923, P. L. 875, and May 13,

court and its receiver over the property of
the bankrupt ends automatically save for

1925, P. L. 667-Classification of

the purpose of an accounting by the receiv- bridges.

er to the court which created him.

-RULER V. COMMISSIONERS OF YORK CO., 133

214

BOUNDARY.

INDEX OF CASES REPORTED

The Act of June 28th, 1923, P. L. 875, re-
lating to joint county bridges, is not void

Joint county toll bridges-Authority because of a defective title or because it con-

of counties to erect-Apportionment of
the cost "On the boundary"-Power to
collect tolls—Tolls are not taxes-Bonds
for payment of joint toll bridges-Ap-
plication of tolls to interest and principal
-Necessity of tax for payment of in-
terest and principal Constitutional law
-Act of 1923, P. L. 875, and May 13,
1925, P. L. 667-Classification of
bridges.

-RULER V. COMMISSIONERS OF YORK CO., 133

BRIDGES.

tains more than one purpose, and under it

counties may collect tolls for the use of an
inter-county bridge which cost upwards of
$400,000.00.

The limitation of authority contained in the
tion of inter-county toll bridges to such as

Act of June 28, 1923, P. L. 875, for the erec-
cost upwards of $400,000.00, is a proper clas-
sification, and is not in conflict with Article

3, Section 7, of the Constitution.

Tolls for the use of a county bridge are not
taxes, and the collection thereof is not dual
taxation, nor the imposition of a tax upon
property not within the jurisdiction of the
county.

Inter-county bridge-Financing ofvides an additional method of procedure for
Payment of cost of by tolls-Constitu-
tional law-Section 10, Article IX of
Constitution-Act of June 28, 1923, P.
L. 875.

Counties are legally authorized, by joint
arrangements with other counties, to build
inter-county bridges and to make such ar-
rangements as are agreeable to them for the
taking of tolls until the money expended,
with interest, is paid, subject to the approval
of the State Highway Department; but when
they borrow for such a purpose they must
do it strictly in accordance with Section 10,
Article IX., of the State Constitution, and
cannot create an indebtedness for this pur-
pose resting solely on the tolls collected and
without providing for the payment of prin-
cipal and interest by taxtion in addition to
such tolls. If the intention of the Act of
June 28, 1923, P. L. 875, is to give such au-
thority, it is to that extent unconstitutional
and void.

Under Section 10, Article IX., of the Con-
stitution of Pennsylvania, it is necessary
that provision be made for the collection of
an annual tax sufficient to pay the interest
and also the principal of such indebtedness
within thirty years.

In determining whether any legislative or
municipal act conflicts with the constitution,
its substance, not its form, must always be
the test.

--MYERS, ET AL., TAXPAYERS, V. ZIMMERMAN,
ET AL., COMMISSIONERS OF LANCASTER
COUNTY, 85

The Act of May 13, 1925, P. L. 667, pro-
viding for building inter-county bridges, pro-
the erection of inter-county bridges, and un-
der it, the cost of such bridges may be paid
in such proportion as shall be agreed upon by
tioned on the basis of population, as provided
by the Act of 1911, P. L. 1084, amending the
Act of 1836, P. L. 551.

the two counties, and need not be appor-

A bridge is "on the boundary line between
two counties," when it crosses a stream of
which the low water mark on one bank is the
line between two counties.

Although it is intended to collect tolls for
the use of an inter-county bridge and to ap-
ply the proceeds to the payment of the prin-
cipal and interest of bonds to be issued for
the payment of the cost of building the
bridge, yet, at or before the issuing of the
bonds, provision must be made for the col-
lection of an annual tax sufficient to pay the
interest and principal within thirty years.

The constitutional requirement that at the
time of creating municipal indebtedness, the
municipal authorities must provide an an-
nual tax to discharge the debt within thirty
years, does not mean that the tax so provided
must be collected if there are sufficient funds
derived from other sources which may be
lawfully applied to the payment of the debt.

In an election on the proposed increase of
the indebtedness of a county where the ques-
tion printed on the ballot was "Shall the
bonded indebtedness of the County of York
be increased by the additional sum of one
million five hundred thousand ($1,500,000)
dollars, for the purpose of the construction
and erection, jointly, and in equal propor-

tions with the County of Lancaster, Penn-
the Susquehanna river between Wrightsville

and Columbia

*

*

sylvania, of a joint county toll bridge across
agreeably
to the provisions of the Act of Assembly ap-
proved June 28, 1923, P. L. 875?", it was Held,

Joint county toll bridges-Authority of
counties to erect-Apportionment of the
cost-"On the boundary"-Power to col-
lect tolls-Tolls are not taxes-Bonds
for payment of joint toll bridges-Appli- that the question of the proposed increase of
cation of tolls to interest and principal indebtedness was duly submitted to the elect-
Necessity of tax for payment of interest constitution and in the manner provided by
and principal-Constitutional law-Act law.
of 1923, P. L. 875, and May 13, 1925, P.
L. 667-Classification of bridges.

ors in compliance with the requirement of the

County commissioners, after due pro-
ceedings had under the Act of May 13, 1925,