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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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lord, on a distress for rent, on the
plea of no rent in arrear, a receipt
for rent given by the immediate
lessee to the plaintiff, is not admis-
sible on the part of the plaintiff.

Quinn v. Wallace, 452

5. In replevin by a sub-lessee for



63S



INDEX.



goods taken by the paramount land-
lord, on a distress for rent, on the
plea of no rent in arrear, where It
appears that the defendant had
previously distrained the goods of
the mesne tenant for rent arrere,
and sold the same, it lies upon the
defendant to show that the distress
first taken was insufficient. Id.
6. It seems that the act of 13th of
March 1772, which says that the
landlord shall or may sell the goods
distrained, is imperative, and makes
it the duty of the landlord to sell.

Id.
And see FRAUDS, 2.

LEX LOCI CONTRACTUS.

See CONTRACT.

LIEN.

See MECHANICS' LIEN.

LUNATIC.

See ERRORS AND APPEALS, 4.

MANDAMUS.

The court refused a mandamus to
the county commissioners to file in
their office a copy of the affirma-
tion taken by a person elected to
the office of assessor of a ward ;
the commissioners having returned,
that in consequence of the relator
not having filed the copy of the af-
firmation within twenty days after
his election, they had appointed
another person to fill the office, un-
der the 87th and 88th sections of
the act of 15th April 1834. Com.
v. Com'rs of Philadelphia, 476

MASTER AND SERVANT.

See NEGLIGENCE.

MECHANICS' LIEN.
In a claim filed under the Mechanics'
Lien law, a building was described
as situate " on the west side of 13th
street, between Vine and James
streets, in the county of Philadel-
phia, belonging, or said to belong
to C. S." (the defendant). In point
of fact the building was situate on
the west side of 13th street, be-
tween Callowhill and James streets.
Callowhill street intervenes be-
tween Vine and James sta. Held,



that the description was sufficiently
certain ; the defendant having no
other house in that street. Springer
v. Keyser, 187

MERGER.

In 1828, T. C. granted a lot of ground
to J. R. in fee, reserving an annual
ground-rent to himself, his heirs
and assigns. In April 1829, he
made his will, whereby he devised
the said ground-rent to his wife
for life, with remainder to or in
trust for his five children, in differ-
ent shares and proportions, giving
one-eighth part to his son, T. C.,
Jr. In November 1829, the lot oi
ground, with an unfinished build-
ing upon it, was sold at sheriff's
sale, subject to the ground-rent,
and was purchased for T. C. by his
son T. C., Jr. On the 19th of March
1830, T. C. died, without any deed
having been made to him by the
sheriff. Held, that the ground-rent
did not merge in the equitable es-
tate acquired by T. C. at the sher-
iff's sale. Penington v. Coats, 277

MORTGAGE.

See AFFIDAVIT OF DEFENCE, 2. EXB-
CUTION, 8, 9, 10.

NAVIGATION.

See COLLISION. NEGLIGENCE.
NEGLIGENCE.

In an action by the owner of a canal
boat against, the steersman, whom
he had employed to take her down
the river, to recover damages for
the loss of the boat, which was car-
ried over a dam, in consequence
of the negligence of the defendant,
it was held, that it was not a suffi-
cient answer to the charge of neg-
ligence that the boat was not
provided with poles and handb; if
the vessel was improperly navigated
too near the dam. Hir.e v. Kng-
ler, 33fi

And see BAILMENT, 2. COLLISION.

NOTARIAL FEES.
See BANKS, 4.

NOTICE.
See BILLS or EXCHANGE, 1.



INDEX.



639



ORPHANS' COURT.

1. Where notice of the filing of an
auditor's report is not required by
the rules of the Orphans' Court,
it is not a sufficient cause of ex-
ception in this court that the re-
port was filed without notice to,
or knowledge by the appellant, and
while the appellant was confined to
her bed by serious sickness. Goss-
ner's Estate, 401

2. An auditor appointed to distribute
among the next of kin the balance
in the hands of the administrator,
has no jurisdiction of an adversary
claim of a creditor of the estate.

Id.
And see INTESTATE.

PARENT AND CHILD.

See ADMINISTRATOR.

PAROL EVIDENCE.

See EVIDENCE, 1. INTESTATE, 5. LAND-
LORD AND TENANT, 2. WILL, 1.

PAROL CONTRACTS.
See FRAUDS.

PARTNERSHIP.

What circumstances will constitute a
partnership as respects third per-
sons. Churchman v. Smith, 146

And see ACCOUNT RENDER. DEBTOR
AND CREDITOR, 2.

PLEADING.

1 . If the declaration contain several
counts, and there is evidence to
support any one count, this court
will not reverse, if the count on
which judgment is rendered is
good. Me Credy v. James, 547

2. Although a declaration in assump-
sit should omit to aver that the
promise was made to the plaintiff,
yet it may be good after verdict.

Id.

And see ACTION. 1. AMENDMENT.
BILLS OF EXCHANGE, 4.

PRACTICE.
1. A party who offers in evidence a



deposition taken on his behalf must
read the whole, and cannot select
portions and omit others, on the
ground that the parts omitted :ire
properly rebutting evidence S<tt/t-
wark Ins. Co. v. Knight, 8:27

2. And if he be permitted by the
court to read portions only of a
deposition on this ground, the ir-
regularity is not cured by an offer
made by his counsel, in summing
up, to read the parts which had
been omitted ; especially if, after
objection by the counsel on the
other side, the offer is withdrawn.

Id.

3. Under the act of the 27th of Feb-
ruary 1798, when the court in
bane have made an order upon a
party to produce at the trial cer-
tain specified writings, the judge
at Nisi Prius cannot inquire whe-
ther they are pertinent to the case,
or whether they would or would
not be evidence if produced. Tut-
tle v. Mechanics' Loan Co, 216

4. The party upon whom the order
has been made, must either pro-
duce the writings named in it, or
satisfy the judge why it is not in
his power to produce them. Id.

5. On the trial of an action against
a corporation, upon whom an order
had been made to produce certain
papers, the defendant's solicitor
swore that when he received notice
of the order, about a year pre-
viously, he left it with the cashier
of the company. That the office
of the company had been removed
a few weeks previously ; and that
he had on the morning of the trial
searched in the office for the papers
without success. No other officer
of the company was produced :
Held, that the non-production of
the papers was not satisfactorily
accounted for. Id.

6. Under peculiar circumstances, the
court will direct the assessment
of damages upon a judgment given
against a defendant in consequence
of the non-production of papers, to
be made at Nisi Prius. Id.

7. If the sheriff reads a writ of sum-
mons in the hearing of the defend-
ant, it is sufficient without leaving



INDEX.



a copy of the writ with him.
Kleckner v. Lehigh County, 66
And see AFFIDAVIT OF DEFENCE
AMENDMENT. COMMON PLEAS.
COUNTIES. EJECTMENT. EQUITY.
ERRORS AND APPEALS. JUDGMENT.
Quo WARRANTO.

PRESUMPTION.
See WAY, 2.

PRINCIPAL.

See AGENT.

PROMISSORY NOTES.
See BILLS OF EXCHANGE. BANKS.

PROTEST.
See BANKS, 4. BILLS OF EXCHANGE, t.

PROTHONOTARY.

See JUDGMENT.

QUARTER SESSIONS.
See BRIDGES. ROADS.

QUO WARRANTO.

1. The court refused to give a prefer-
ence to the argument of a demurrer
to a plea in quo warranto ; though
the office was an annual one. Com-
monwealth v. Sparks, 416

2. In a quo warranto against three,
to show why they claimed to ex-
ercise the office of directors of a
bank, one of the defendants dis-
claimed, and judgment of ouster
was given against him. The other
two pleaded to issue: Held, that
this was not a case within the 13th
section of the act of the 13th of
April 1840, authorizing the court,
in case judgment of ouster is given,
to decree that the office shall be
held by the relators, &c. Id.

RAILROADS.
See ROADS, 3, 4, 5, 6.

REFUNDING BOND.
See INTESTATE, 6.

RELEASE.

See ASSIGN MBNT.



RENT.

See LANDLORD AND TENANT. MERGER.

REPLEVIN.
See LANDLORD AND TENANT, 4, 5.

REWARD.

In the month of January 1836, the
Commercial Bank of Cincinnati
sent by A., their agent, a large sum
of money, in bank notes, to Phil-
adelphia. On the arrival of A. in
Philadelphia, he called upon B ,
and asked him to take charge of it.
B. declined this, but told him that
he might have the use of his fire-
proof for the purpose. A. ac-
cordingly went to the fire-proof and
deposited certain packages, and at
the request of B. locked the door
of the fire-proof and took away the
key with him. Afterwards he re-
turned to B.'s office; and in the
course of the same day a package
containing $100,000 in post notes
of the Bank of the U. S., which
had been brought on by him, was
missing. Search was made in the
fire-proof without success. The
Commercial Bank of Cincinnati, on
hearing of the fact, offered by public
advertisement a reward of $10,000
for the recovery of the package.
The advertisement stated that the
package " was lost at" Wheeling,
or between that place and Phila-
delphia, or possibly on the arrival
of the bearer of it in Philadelphia;
and that the reward would be paid
on the delivery of the package to
B. at Philadelphia, or to other per-
sons at other places named ; and
added that if inconvenient to the
finder to deliver the money, he
might deduct the reward and remit
the balance by mail to the bank.
In the month of August following,
C., who was the principal person
in the office of B., discovered the
missing package on the floor of
the fire-proof, and delivered it to
the cashier of the Girard Bank in
Philadelphia, where it was depos-
ited to the credit of the Commercial
Bank of Cincinnati. Held, that
the package was not lost or recov-
ered in the sense of the advertise-



INDEX.



641



ment ; and at all events that as it
had not been delivered to either of
the persons named in the adver-
tisement, C. was not entitled to the
reward. Commercial Bank of Cin-
cinnati v. Pleasants, 375

RIGHT OF WAY.
See WAY.

ROADS AND STREETS.

.' Where a petition for a road was
missing, and there was no minute
in the clerk's book, either of the
presentation of the petition or of
the appointment of viewers, and a
new petition was prepared, and a
certificate was signed by two of the
associate judges during vacation,
setting forth, that at the preceding
term they had appointed H. S. <fec.
viewers : to which they added,
" and being informed that the peti-
tion was mislaid, we hereby author-
ize you to make out an order for the
purpose," whereupon an order was
made out by the clerk, and the
viewers made the report ; this court
quashed the proceedings. State
Road from HowelVs Mitts, 352

2. On a certiorari to remove pro-
ceedings in the case of a road, no
point can be made which is not
apparent exclusively on the pro-
ceedings removed. Philadelphia
& Trenton Rail-Road Co. 25

3. Where an act of assembly autho-
rized a rail-road company to " lo-
cate and construct" a rail-road,
and declared that the " location
shall be approved of by the judges
of the Court of Quarter Sessions,
upon the view of six jurors, to be
appointed by said court as direct-
ed :" it was held that it was not a
valid exception to the proceedings
that the location was made by the
jury, nor that there were not two
full terms between the appoint-
ment of the jury and the confirm-
ation of their report. Id.

4. The regulation of a street in a
city or incorporated district ij
given to the corporation, only for
corporate purposes, and is subject
to the paramount authority of the
state in respect to its general and
more extended uses. //.

5. The provision in the constitution

6 WHARTON 41



that private property shall not be
taken for public use without com-
pensation, does not prohibit the
legislature granting to a rail-road
company the privilege of laying
rails on the streets of a city or
town, and of using the rail-road
so made. //.

6. There is nothing in the constitu-
tion to prevent the grant of such
a monopoly as a rail-road. Id.

RULES OF COURT.
See COMMON PLEAS.

SALE OF GOODS.

1. To render a bill of sale of goods
valid as against creditors, there
must be an accompanying, actual,
visible, and notorious possession
in the vendee. Hoofsmith v. Cope,

53

2. Where A. living in the country,
and being indebted to B. and C.,
merchants, in Philrdelphia, made
an assignment to them of his stock
of goods in payment of his debt ;
and by an agreement between
them A. was to remain in posses-
sion as clerk to B. and C., who
took a lease of the premises ; and
a few days afterwards B. and C.
made a bill of sale of the goods to
D., who took possession of the
goods; and, while in his posses-
sion, the goods were levied upon
and removed by the sheriff upon
an execution at the suit of a cred-
itor of A. ; it was held in trespass
brought by D. against the sheriff
and the execution creditor, 4c.,
that the possession of the goods
might be lawfully taken by D.,
notwithstanding any dissent by
A., and that evidence was not ad-
missible to show that no consi-
deration passed from D. to B. and
C. Id.

3. In trespass against a sheriff and
execution creditor for taking goods
of the plaintiff, on an execution
against another, evidence is not
admissible on the part of the de-
fendants to prove that the goods
were returned by the sheriff to the
place from which they were taken
a few days afterwards. Id.

4. In an action of trover by a vendor
of goods against the sheriff, who



642



INDEX.



had taken the goods by virtue of
a foreign attachment, as the pro-
perty of the vendees, who resided
in Alabama, the goods having been
marked with their names, and being
on the pavement in front of the
plaintiff's store at the time they
were taken by the sheriff; it was
held, that a clerk of the plaintiff,
who stated these facts, might be
asked " whether the goods had been
paid for ; and how they were to be
paid." fitter v. Morris, 406

SALE OF LAND.
See FRAUD.

SCHUYLKILL NAVIGATION CO.

In proceedings to estimate the in-
jury sustained by the owner of
a mill from a dam raised by the
Schuylkill Navigation Co., it was
held that the jury were to ascer-
tain what was the real damage to
the mill in ordinary events, and
'were not to be governed by the
consideration of the profits which
the owner might have derived from
an accidental rise of the value of
grain at the particular time.
Schuylkill Nav. Co. v. Freedley,

109

SERVICE OF PROCESS.

See PRACTICE, 7.

SET-OFB\

See AFFIDAVIT OF DEFENCE, 2.
DEBTOR AND CREDITOR, 1.

SHERIFF.

See EXECUTION. INSURANCE, 2.
PRACTICE, 7.

SHERIFF'S SALE.

See EXECUTION, 8, 9.

SHIPPING.

See COLLISION.


STATUTES.

1. The expiration of a statute by its
own limitation, ipso facto revives
a statute which had been repealed



and supplied by it. Collins v.
Smith, 294

2. The act of the 19th of March,
1810, forbidding unincorporated
banks to issue their notes, dis-
count paper, &c., which was re-
pealed by the act of the 21st of
March, 1814, revived, on the ex-
piration of the period of eleven
years, to which the last mentioned
act was limited. Id.

And see BANKS.

STATUTE OF FRAUDS.
See FRAUDS.

STAY OF EXECUTION.
See JUDGMENT, 2, 3.

STREETS.
See ROADS.

SUMMONS.

See COUNTIES. PRACTICE, 7.

SUPREME COURT.

See EQUITY, &c. ERROR.

SURETY.
See BILLS OF EXCHANGE, 4. JUDO

MENT, 2, 3.

TENDER.
See CONTRACT, 2.

TITLE DEEDS.
See EQUITY, 3, 4.

TOWNSHIP.

See COUNTY.

TROVER.
See BAILMENT, 1, 2.

TRUST AND TRUSTEE.
See EQUITY, 1, 2.

VENDOR AND VENDEE.
See FRAUDS. SALE OF GOODS.

WAGER.

1. An action cannot be maintained
in Pennsylvania to recover a sum



INDEX.



643



of money alleged to have been
lost by the defendant to the plain-
tiff, upon a wager or bet. Edgell
v. McLaughlin, 176

2. And in an action against the
drawer of a check upon a bank,
evidence is admissible on the part
of the defendant, to prove that
the check was drawn in pursuance
of an agreement, by which a sum
of money was bet by the defend-
ant with the plaintiff upon a cer-
tain event ; and such consideration
having been proved, the defendant
is entitled to a verdict. Id.

WAY.

!. E. S. B., who was the owner of
a lot of ground on the west side
of Eighth street, in the city of Phil-
adelphia, and also the owner of a
lot on the south side of Chestnut
street, the rear of which lot bounded
the first lot on the west, conveyed
the lot on Eighth street to J. S.,
" bounded on the west by other
ground of E. S. B. (viz., the Chest-
nut street lot), and on the south
by an alley of the width of two feet
six inches, intended to be left open
by the said E. S. B., together with
the free use and privilege of the
said alley as a passage, in common
with the said E. S. B. and his
heirs, and those to whom he may
likewise grant the same privilege of
building on the said alley, &c.
Four months after the date of this
deed, E. S. B. made an agreement
with T. C., who was the owner of
a lot adjoining the Eighth street
lot on the south, by which, after
reciting that E. S .B. had agreed to
open an alley two feet six inches
wide, running west 82 feet six
inches, &c., the privilege of which,
in common with the said E. S. B.,
his heirs and assigns, was intended
to be granted to J. S., it was agreed
that T. C. should leave out forever
on the south of the alley a strip of
ground one foot in front on Eighth
street, by 82 feet six inches in depth
westward, so as to widen the alley
to three feet six inches, for the
common use and benefit of the said
parties, their heirs and assigns, <fec.
Afterwards E. S. B. conveyed the
lots on Chestnut street to G. M.,



together with the free and common
use and privilege of the said three
and a-half feet wide alley, and of a
water-course over and along the
same, and the right of soil of the
northernmost part of the alley,
subject to the privileges granted by
the agreement to the said T. C. and
J. S., their heirs and assigns, &c.
G. M. was at the time of this con-
veyance the owner of other lots
of ground on Chestnut street ad-
joining the lots so conveyed to him
by E. S. B. on the west ; and opened
an alley in the rear of them com-
municating with the said alley lead-
ing into Eighth street : Held, that
the right of way, &c., in the said
alley in common with J. S. and T.
C., and their heirs, &c., was con-
fined to the owners and occupiers
of the lots on Chestnut street, ori-
ginally owned by E. S. B., and ad-
jacent to the alley, and could not
be extended by G. M. to the owners
and occupiers of his lots adjoining
on the west. Lewis v. Carstairs,

193

2. Where there is evidence of an
uninterrupted use of an alley for a
passage and water-course, for a
period less than twenty years,
evidence of contribution by the
persons so using it. to the expenses
of laying and repairing the pave-
ment, and of laying water-pipes,
under the surface, is proper to be
submitted to the jury, as bearing
upon the fact of the presumption
of a grant. Id.

3. A party who might otherwise be
entitled to the exclusive enjoyment
of an easement, may be equitably
estopped from contesting the right
of others to use it, if by allowing
a common enjoyment of it for a
period less than twenty years, and
by positive acts of acquiescence on
his part he encourages an innocent
purchaser to pay his money for
the purchase of property to which
such easement appears to be ap-
purtenant. Id.

4. B^ a plan of partition of certain
lots between A. and B., under
whom both the plaintiff and de-
fendant claimed, an alley was left
open for the accommodation of the
several lots. Afterwards, in 1815,
A. and B. conveyed to the defend-



644



INDEX.



ant a lot bounding on the alley,
" together with the common use
and privilege of the said alley,"
&c. In 1832 A. conveyed to the
plaintiff a lot adjoining that of the
defendant, described as bounded
by the said alley, " Together with
all and singular the streets, alleys,
ways," &c. Held, that the plaintiff
was entitled to the use of the al-
ley, in common with the defendant
and others. Van Meter v. Han-
kinson, 307

WILL.

1. A testator, after giving a house to
his sister D. for life, and making
certain other provisions for her,
devised as follows : "And I also
give to every nephew or niece
of mine an equal share of iny
estate ; and that if any nephew
or niece of mine die, leaving no
heir before the division of my estate
then his or her portion shall not be
divided among his or her friends,
but shall be divided equally among
my surviving nephews and nieces.
And whereas there is a suit against
P. W.'s estate, I pledge the portion
of E. S." (a niece of the testator)
" to make good any loss P. W.'s
estate may sustain by the said law-
suit so far as her portion goes, be-
cause I think it unjust that such a
suit should have been commenced.
It is my will and wish that all the
lawful children of the body of J.
L., son of my brother C. L., shall
have the portion of their father
divided equally amongst them,
male and female, share and share
alike." " It is my will, and wish,
and hope, that all my nephews
and nieces above named, may be
satisfied with my doings," &c.
By a codicil made about two years
after the will, he made certain pro-
visions respecting the portion of
one of his nephews, reciting that
in his will he had given and be-
queathed to his " nephews and
nieces" who should be living at
his decease, each a certain portion
of his estate. E. S., the niece
mentioned in the will, was dead at
the date of the will. Held, 1. That
upon the construction of the will



the children of E. S. were not enti-
tled to a share or part of the estate.
2. That parol evidence was not
admissible to prove that the tes-
tator knew of the death of E. S.,
and that she left children ; that a
suit had been brought by them
against the estate of P. W., which
was discontinued in consequence
of a correspondence between the
testator and the representatives of
P. W., in which the contents of
his will were made known to the
latter, and communicated to the
children of E. S. ; and that the tes-
tator had declared that they would
receive their part of his estate upon
his decease. Kilter v. Fox. 99
2. A will contained the following
provisions : " As to my worldly
goods of all sorts and kinds, I will
and order that they shall be put
under the care and be kept as a
general fund, (except such as shall
be hereafter otherwise ordered in
this will or my codicil hereto af-
fixed,) by my executors and their
successors thereafter for the term
of one hundred years from and
after my decease, and all the rents
and profits to be equally divided
between my four children, S., T.,
W., and S., on the seventeenth of
May and twenty-seventh of No-
vember of each year, and on the
death of either of them, the por-
tion of the deceased to be divided
and paid to each of their children
equally. That on the death of
either of my executors a successor
shall be chosen by the survivors
of my children, and the children
of the deceased, as one to vote in
the choice as representative of their
parent, and on the death of all my
children, then by all the survivors
who are entitled as above, and so
on for the above mentioned 100
years , after which, the whole to be
equally divided among the survi-
vors who shall retain the surname
of Bradford and shall be lineally
descended from me." The testator
gave an annuity to his housekeeper,
and certain articles of furniture,
&c., to certain of his children and
concluded with the appointment of
executors. By a codicil, the tes-
tator reciting that his son 8 had



INDEX.



645



involved the brother T. in diffi-
culty, directed that his executors
should annually, " as the portion
of my estate becomes due to the
said S., pay three-fifths of the said
legacy to the said T. till the whole
debt with the interest shall be
liquidated, and the remainder to the
said S. ;" and reciting that his son
W. had involved him in debt, he
concluded as follows: " it my will,
that before they any part or parcel
of the sum devised to him, that
my executors shall pay for the re.
linquishment of the said debt three-
fourths of the legacy, and the re-
mainder to the said W." Held, that
the real estate of the testator did
not pass under this will. Brad-
ford? v. Bradford, 236
A testator made the following
provision : " And it is also my will
that G. L.. shall pay $557.56 to my



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 74 of 75)