were furnished under verbal contract made
Mandamus-County commissioners- Where a mechanic's lien stated the amount
Primary election returns--Number of due, that the work was done and materials
districts-Allegations in petition-Inter-on a certain date, gave the particulars of the
pretation of act of assembly.
finished work and set forth an itemizezd
statement without prices of the labor and
-COMMONWEALTH EX REL. McCLURE V. ARM- materials, the dates between which the labor
STRONG, ET AL., 47
Justice of the peace-Appeal-Affida- materials; but where the notice of the inten-
vit-Who may take-Mandamus.
Imposition of
costs where the writ is not prosecuted to
judgment-Sec. 19, of the Act 8 June,
1893, P. L. 348.
-BORDNER V. HOUCK, COUNTY CONTROLLER,
99
and materials were continuously furnished,
without showing that the amount claimed
was the lump contract price for the work and
tion to file the claim, which was filed with
the claim, when reasonably interpreted in
connection with the claim, showed that the
amount claimed was the lump sum agreed
upon for the work and materials furnished, a
motion to strike off the lien was refused.
-WALKER & WENTZ V. P. WIEST'S SONS, 77
Mechanic's lien-Insufficient particu-
lars as to contract, time of furnishing
labor and materials, price of labor and
materials, &c.-Lien stricken off.
A mechanic's lien in which it appeared
that labor and materials were furnished un-
Mechanics' lien-Insolvent contractor der written and oral contracts between the
-Claims of sub-contractors—Liability
of owner for amounts exceeding con-
tract price-Act of 1901.
On an agreed statement of facts in the
nature of a case stated involving a number
of sub-contractors' claims in a mechanics'
lien proceeding, where the contractor be-
coming insolvent, the sub-contractors entered
their claims against the owner, it was held
that the owner was liable for the claims
even when in the aggregate they exceeded
the contract price.
The Mechanics' Lien Act of 1901 (June 4.
P. L. 431) following former acts provides
that every structure shall be subject to a
lien for the payment of all debts due to the
contractor or sub-contractor in the erection
and construction thereof, and the sub-con-
tractor is defined to be one who by agree-
ment with the contractor furnishes labor or
supplies reasonably necessary for and actual-
ly used in the building. There is no sug-
gestion in any of the acts that the debt
due a sub-contractor is to be in any way
measured by the debt due the contractor.
-BRYAN V. COMINIAK, ET AL., 7
Mechanic's lien-Matters dehors the
lien-Cumulative rights of claimant.
A mechanic's lien on its face will not be
stricken off for matters dehors the lien. The
right to mechanic's lien being statutory, not
only the right itself, but the method of en-
forcing it, must depend upon the statute.
Claimant's remedy for collecting his money
is cumulative, and he may proceed by lien
and by assumpsit action.
-NEWMAN V. FITZPATRICK, ET AL., 17
claimant and the contractor, that the same
approximately a year, and there was no in-
were furnished continuously in a period of
formation as to the particulars, the number,
or dates of the contracts, nor under which
specific contracts the various items were
furnished, nor as to the dates when labor
and materials were furnished, nor as to the
prices thereof, was stricken off.
-MCNELIS TILE & MARBLE CO. V. HYDEMAN,
ET AL., 81
Mechanics' lien-Property in hands of
receiver appointed by the U. S. District
Court-Construction of the Mechanics'
Lien Act of 1901.
The lien dating from the visible com-
mencement upon the ground of the work of
building the structure, which was prior to
the appointment of the receiver, he would
take subject to a mechanics' lien and any
other lien.
The words of Section 2, of the Mechanics'
Lien Act of 1901, relate solely to cases in
which a trustee undertakes to improve a
property and are plainly confined to pre-
venting a contract for an improvement,
made by a trustee, from having the effect of
subjecting the property to a mechanics' lien
when such contract has not been duly auth-
orized.
When the right to a mechanics' lien ac-
crued before the appointment of a receiver
of the corporate owner, a claim may be filed
to keep the lien alive without first applying
to the appointing court for leave so to do.
-CHAMBERS LUMBER CO. V. JONES, ET AL., 95
Mechanic's lien-Particulars of con- Mortgage Equities between mort-
tract Particulars of price-Particu- gagor and mortgagee follow assignment
lars in notice to file lien read into claim.—Mechanics' lien filed after purchase
money mortgage--Conditional judgment
entered.
The entry of a judgment by the mortgagee
against the mortgagor on a forged note, after
the assignment of the mortgage, is not a de-
-RUPP, FOR USE OF INDUSTRIAL NATIONAL fense to a scire facias on the mortgage.
BANK V. MCLAUGHLIN, 89
Health law-Sale of milk-City ordi-
nance regulating-Regulations to en-
force ordinance-Power to make-Pre-
sumption as to purity.
-HOAR V. CITY OF LANCASTER, ET AL., 93
Judgments-Opening and letting de-
fendant into a defense-Mistake by de-
fendant as to contents of lease.
-RIZIKA & WEINSTOCK V. JACOBS, 57
-RUPP, FOR USE OF INDUSTRIAL NATIONAL
BANK V. McLAUGHLIN, 89
Practice, equity-Mortgages-Prayer
for decree of sale- Jurisdiction - Bill
taken pro confesso.
A court of equity is without jurisdiction to
decree a sale of mortgaged premises on a bill
filed by a mortgagee, not a corporation,
against a, mortgagor.
Where in an equity proceeding the defend-
ants have entered their appearance but failed
to file answers within the time allowed, the
plaintiff is bound by the rules of equity prac-
tice to enter an order that the bill be taken
pro confesso, before asking the court to make
a decree ordering the sale of mortgaged
premises.
-CALM V. LINK, ET AL., 159
Real estate-Conveyance subject to
Default Tender-Scire
liens Agreement by grantee to pay-facias-Affidavit of defense.
Liability to holder of encumbrances-
Mortgagee may sue.
Notwithstanding the provision of the Act
of June 12, 1878, P. L. 205, which provides
that the right to enforce liability upon the
grantee of land conveyed subject to a mort-
gage assumed by the grantee shall not enure
to any one other than the person with whom
such agreement was made, the mortgagee
may sue in the name of the grantor with his
consent.
A tender of principal and interest due on
a mortgage, made in July, if not followed up,
will not excuse a default in a payment due
the following January. The tender to con-
tinue effectual and to stop interest from ac-
cruing, must be kept good.
--SCOTT V. MONTGOMERY, 208
Equity-Bill for re-conveyance of real
estate Loan - Written defeasance
Where a deed recites two mortgages on the Mortgage-Jurisdiction-Act of April
land, "both of which said mortgages the said
parties of the second part hereby assume and
agree to pay as part of the consideration
aforesaid," the grantee in the deed is per-
sonally liable to the holder of the encum-
brance.
An assignee of a mortgage takes it sub-
ject to equities between the original parties
existing at the time of the assignment; but
not to those arising after the assignment.
The filing of mechanics' liens for valid
claims existing at the time of the convey-
ance of land is a breach of the general war-
ranty in the deed of conveyance, and is a
good defense to a scire facias sur on a mort-
gage given by the grantee to the grantor for
part of the purchase money, even though the
mortgage was assigned before the liens were
filed.
-FASSBERG, ET UX., V. COMMONWEALTH
TRUST CO., ETC., 112
Holder in due course-Not payable at
INDEX OF CASES REPORTED
fixed or determinable time-Non-nego- NOTICE.
tiable - Subject to original defenses-
Filling in blanks - Negotiable Instru-
ments Act 16 May, 1901, Sec. 14, P. L.
The statement of an agent, who sold elec-
tric lamps and took a trade acceptance in
payment, that the lamps would save elec-
tricity, was but an opinion and did not con-
stitute fraud such as would require a bona
fide purchaser of the acceptance before ma-
turity, without notice, to prove his title.
Where a negotiable instrument is dated
June 15, 1922, and payable "Dec. 15," without
words indicating the year of payment, it is
not payable at a fixed or determinable fu-
ture time and is non-negotiable. Any de-
fenses that the maker has against the payee
are therefore available against the holder.
Under Sec. 14, of the Negotiable Instru-
ments Act of 1901, the person in possession
of the instrument has a prima facie author-
ity to complete it by filling in the blank in
accordance with the understanding of the
parties or the authority given at the time of
execution; but unless this is done before ne-
gotiation the paper is not "complete and reg-
ular" upon its face and is non-negotiable.
-BAKER, EVANS & CO. V. DEMETRE, ET AL,, 90
New trial-After-discovered evidence
-Verdict-Excessive verdict.
A new trial will not be granted on the
Sheriff's sale- Distribution of pro-
ceeds-Oral notice of divestiture of liens
-Conditional bid.
-ANDERSON V. FREDELL, 173
Equity-Nuisance-Garage in residen-
A public garage, though not a nuisance
per se, becomes such in fact when conducted
in a residential neighborhood.
So long as the more remote industrial de-
velopments have not destroyed the quiet and
cleanliness of plaintiffs' homes, they are en-
titled to protect from an immediate en-
croachment which does.
A neighborhood need not be exclusively
residential in character to secure protection
from a disturbing business encroachment. It
is sufficient if it is preponderantly residen-
tial, provided it contains no business estab-
lishment which seriously affects the safety,
peace and quiet which are distinguishing
characteristics of such a neighborhood.
-FLEAGLE, ET AL., V. STOKES, 193
Common school-School directors-
School code-Sections 706, 707 and 708
ground of after-discovered evidence unless it of School Code of 18 May 1911, P. L.
could not have been produced at the former Coal-Bids-Advertisement for bids-
309-Supplies-Purchase of supplies—
rectly contradicts the plaintiff on a material Removal of directors from office.
appears that by due diligence, the evidence
trial, and notwithstanding the evidence di-
Where in an action for loss of wages by
-PROSPECT SCHOOL DIRECTORS, 196
reason of personal injuries the court over- ORPHANS' COURT.
looks the number of days, alleged in the
statement of claim to have been lost, and
charges that recovery may be had for a
greater number of days and the verdict may,
or may not, have included an allowance for
the greater number of days, the verdict will
not be permitted to stand, but if the amount
involved is not large, and substantial justice
can be done by the reduction of the verdict,
that course, instead of granting a new trial,
will be adopted.
-WEAVER V. FEELEMYER, 191
Criminal law-Fornication and bas-
tardy Evidence Competency of
mother of bastard-New trial-Weight
of evidence-Setting aside verdict.
-COMMONWEALTH V. REED,, 82
Decedents' estates Next of kin
Orphans' Court-Petition for review
-Section 48, of Fiduciaries Act of 1917,
P. L. 447,
Under Section 48, of the Fiduciaries Act of
1917, P. L. 447-514, the error of law in an ad-
judication which may be reviewed does not
include a legal question clearly raised, con-
tested and decided adversely against the
party subsequently petitioning for a review.
Where a decree of the Orphans' Court dis-
tributing the balance in the hands of execu-
tors was made in 1912, and no exceptions
were filed thereto, and in 1926 a pétition for
a review was presented, based upon the sole
ground that the construction of the will, un-
der which the distribution was made, was er-
roneous, and where it appeared that the ques-
tion raised by the petition for a review had
been raised, contested and decided adversely
to the petitioner for a review in the adjudi-
Great-grandchildren of brothers and sis- cation made in 1912, and the court not having
ters-Intestate Act of 1917.
-EBLING'S ESTATE, 129
been convinced of error in the adjudication.
PLAINTIFF'S STATEMENT.
Plaintiff's statement-Requirements in
action for breach of contract to sell land.
A plaintiff's statement in an action to re-
cover down money and damages for breach
of a contract to sell land which did not aver
whether the demand for the deed was oral
of payment, nor whether the notice to rescind
without specifying their nature, was
Affidavit of defense raising questions or in writing, nor the nature of the tender
of law-Action against surety company was oral or in writing and in which the
on bond of bank officer-Proper party to damages claimed were given in a lump item
action-Character of indemnity bonds by sufficiently specific to entitle plaintiff to
corporations-Extension by payment of judgment.
premiums Statute of frauds-Pre--GOLDBERG V. CHERNIN, ET UX., 6
sumption of payment--Want of particu-
lars in statement.
-COMTH. FOR USE OF SECRETARY OF BANK-
ING, V. HARRISBURG TRUST CO., 73
Plaintiff's statement - Architects-In
action for services in preparing building
plans, averments of plaintiff's capacity
not necessary ·Copy of contract be-
Application-Party-tween defendant and third party need
Act of June 8, 1893, P. L. 345.
--COMMONWEALTH, EX REL. CHYLAK, V.
FISHER, ET AL., 149
not be attached to statement.
In an action to recover compensation for
the preparation of plans for alterations and
additions to a building and superintending
the work, it is not necessary for the plain-
tiff in his statement to allege the capacity in
which he made the plans and superintended
the work.
If the plaintiff was not an architect, and
did not in his dealings with the defendant
act as such, the Act of 1919, P. L. 913, re-
lating to the registration of architects, would
not be applicable.
If the plaintiff was an architect, but had
not qualified in accordance with the re-
quirements of the Act of 1919, or not being a
certified architect had signed the plans and
stitute a defense; but need not be set out in
specifications as such, these facts might con-
The plaintiff is not required to attach to
his statement a copy of a contract between
the defendant and her builder, to which the
plaintiff was not a party, but which referred
to the plans and specifications prepared by
the plaintiff and mentioned his compensa-
tion.
-McCLYMONT V. LANASA, 25
Plaintiff's statement-Rule for more
specific statement.
In an action against the surety on a bond
given to indemnify a bank against the defal-
cation of its assistant cashier, where the
statement, in proper manner, sets forth the
right of the plaintiff to bring the action, the
bring the bill upon record by its own plead-
ing by way of a demurrer.
execution of the bond, showing a copy there-being exhibited in the statement, and not to
of, and its renewal, the defalcation of the
assistant cashier, with a list of the defalca-
tions, specifying dates, amounts and details,
the defendant is not entitled to a rule on the
plaintiff to file a more specific statement.
-COMTH., FOR USE OF SECRETARY OF BANK-
ING V. HARRISBURG TRUST CO., 29
Plaintiff's statement Admission of
credits-Particularity not required.
There is no provision in the Practice Act
requiring a plaintiff who admits a counter-
claim, or a set-off, to aver such claim or set-
Until defendant has first moved to compel
plaintiff to perfect his statement by setting
forth a copy of the standard form of vouch-
er, advantage of the limitation of right of
action contained therein can not be taken
by demurrer.
-NOTARIANNI & CO. V. D. L. & W. R. R. CO.,
156
Plaintiff's statement-Insufficient aver-
ments of particulars of personal injury-
off with the same particularity that he must Insufficient averments of negligence in
driving automobile.
set up his cause of action.
As a general rule it is not necessary for
the plaintiff to anticipate and negative mat-
ters of defense.
A plaintiff's statement which contains suf-
ficient averments of facts of cause of action
against the defendant, and admits in part
certain items of credit from which unex-
plained deductions are made, is sufficient to
sustain a judgment for want of a sufficient
affidavit of defense.
-CAINE V. WILLIAMS & LEVIN, 117
An averment in a plaintiff's statement in
an action for personal injuries describing
certain injuries as "other severe injuries,
which rendered him ill, sore and lame, dis-
ordered and permanently injured," is insuffi-
cient, and the plaintiff will be required to
file a more specific statement.
Where damages are claimed for personal
injuries, the nature and character of the in-
jury must be set forth in the plaintiff's state-
ment.
In alleging negligence in the driving of an
automobile, averments of the "violation of
various ordinances" and "of statutes" "per-
Plaintiff's statement-Immaterial aver-
ments-"Agreed" is not expressive of a taining to the operation of automobiles" and
conclusion.
In an action for commissions for the sale
of real estate where the plaintiff's statement
shows that the plaintiff was employed by the
defendant to sell certain real estate, and that
he found a purchaser who was ready and
willing to buy, additional averments that be-
their "speed and control at crossings" are
not sufficient. The defendant is entitled to
know what ordinances and statutes he vio-
lated, and in what particulars.
-ISAAC V. SARGENT, 186
Account-Plaintiff's statement-Nec-
fore the purchaser agreed to buy, he agreed essary averments in statement to require
to buy on certain conditions which the plain-
tiff subsequently met, are immaterial and
the statement was stricken off.
The use of the word "agreed" in the aver-
ment of a transaction, is not the expression
-FREEDMAN, ET AL., V. EMIG, 61
Boardinghouse keepers-Act of April
of a conclusion, and does not render a plain- 20, 1876, P. L. 45, not applicable to spe-
Plaintiff's statement--Practice-Car-
ment should be filed in conformity with the riers-Perishable freight-Claim-Lapse
of time-Pleading.
-FLAIL V. BRZOZOWSKI, 153
Plaintiff's statement-Practice-Car-
-NOTARIANNI & CO. V. D. L. & W. R. R. CO.,
156
riers-Perishable freight-Claim-Lapse PLUMBING.
In order o avail itself of the limitation
Plumbing-Act June 7, 1901, P. L.
prescribed by law in the standard form of 493, Sec. 13-Drain pipes for surface
Voucher required to be issued by railway water.
companies, the proper practice is for defend-
ant to except to plaintiff's statement for in-
formality on the ground of no copy of same
Act June 7, 1901, P. L. 493, Sec. 13, regu-
lating the construction of plumbing, house
|