An action of debt cannot be maintained upon a
mortgage which does not contain an express covenant
to pay. Fidelity Co. v. Miller, 553.

The holder of a bond of a decedent, secured by a
mortgage of real estate, conveyed to another under and
subject to the mortgage, must exhaust his remedies on
the mortgage before he can ask payment of the bond
out of the decedent's personalty. (O. C.) Gould's
Estate, 553.

Chattel mortgages, unless expressly authorized by
Act of Assembly, are invalid as against creditors of the
mortgagee, unless there is a delivery of possession to
the mortgagee. Euwer v. Van Giesen, 363.

A mortgage upon machinery, executed more than
six months before its sale by the sheriff, is not post-
poned to the claims of laborers. (C. P.) Dunn v.
Magarge, 204.

defects of service of a scire facias upon a municipal
claim. (C. P.) City v. Olive Cemetery Co., 238.
The lien of a municipal claim relates back to the
beginning of the work, and hence the filing of a claim
for work begun before a conveyance by the words
"grant, bargain, and sell," works a breach of the
covenant implied in these words by the Act of 28 May,
1715. Shaffer v. Greer, 323.
Counties are


not municipal corporations within the meaning of Art.
XVI. § 8 of the Constitution, nor of the Act of 13 June,
1874, providing for appeals in certain cases. (C. P.)
Freeze v. Columbia County, 145.

Although a municipal corporation is bound by an
assignment of the entire sum to be paid to a contract-
or, it is not bound to regard notices received of assign-
ments of a portion of the fund. City of Philadelphia's

When not extinguished by assignment to a dry trus- Appeal, 193.
tee. Appeal of Workmen's Association, 141.

The lien of a mortgage is divested by the sale of the
incumbered property under a judgment obtained on a
promissory note shown by parol evidence to have been
given for part of the debt secured by the mortgage.
Bittinger's Appeal, 231.

In an action upon a purchase-money mortgage the
damages for breach of warranty of title, as to a por-
tion of the premises, may be set off. Wacker v.
Straub, 381.

Where judgment has been obtained on a mortgage
after service on the mortgagor, and the mortgagor
subsequently dies, it is not necessary to issue a scire
facias to warn his personal representatives before
proceeding to execution. Hunsecker v. Thomas,


An alias scire facias upon a mortgage may issue to a
subsequent return day in the same term to which the
original issued. McClurg v. Schwartz, 361.

A terre tenant who suffers no injury from the omis-
sion cannot take advantage of the failure to give
notice to the mortgagor of the time and place of sale,
prescribed by the Act of 1705. Fidelity Co. v. Clen-
denon, 236.

A stipulation in a mortgage for the payment of five
per cent. attorney's commission, in case of suit, is
valid and will be enforced. Maitland v. Daly, 31.

A mortgagee to whom a perpetual policy of insurance
is assigned as collateral is entitled to the return pre-
miums upon a foreclosure of the mortgage and a sale
of the premises for an amount insufficient to satisfy
the debt. Rafsnyder's Appeal, 453.

Personal liability of vendee under and subject
to a mortgage. Stokes v. Williams, 473. Moore's
Appeal, 474. Samuel v. Peyton, 476. Thomas v.
Wiltbank, 477.

Building association mortgage. Although a
married woman is not bound by the conditions of a
building association mortgage, the husband is respon-
sible on his bond. Hope Building Asso. v. Lance, 218.

MUNICIPAL CLAIM. A municipal claim can-
not be filed against abutting property for the cost of
widening and grading a toll road. Breed v. Alle-
gheny, 168.

A municipal claim filed against a large lot as the
property of one owner may be apportioned upon the
application of the purchaser of a portion of the lot at
sheriff's sale. (C. P.) City v. Penrose, 432.

The assignee of a municipal claim is entitled to all
the benefits of preference which attached to the claim
before assignment. Hageman's Appeal, 357.

An appearance entered by the defendant waives

[ocr errors]

A municipal corporation is not responsible for dam-
ages caused by failure to construct a sewer of sufficient
size to carry off surface draining when the damage to
plaintiff's property is no greater than it would have
been if no sewer had been built. Fair v. City of Phil-
adelphia, 534.

A municipal corporation is responsible for the negli-
gence of contractors who work under the direct super-
vision of the city agents. Saylor v: Harrisburg, 107.

Liability of for defect in bridge. See NEGLIGENCE.
(C. P.) Castor v. Philadelphia, 415.

Mandamus. When granted to award paving con-
tract to nominee of municipal Councils. Dickinson v.
Peters, 458.

Chester. Cost of laying water pipe in, how col-
lectable. Baker v. Gartside, 315.



NEGLIGENCE. What sufficient evidence of
negligence in railroad company in an action by a pas-
senger who, alighting from train, is struck by a pass-
ing locomotive on parallel track. Penna. R. R. v.
White, 516.

Evidence that a passenger railway car was driven
at more than ordinary speed, and that the driver did
not see the plaintiff or know that he was run over un-
til the car had entirely passed over his body, is suffi-
cient to take the case to the jury on the question of
the defendant's negligence. West Phila. R. R. Co. v.
Mulhair, 508.

The failure of a passenger railway to provide against
accidents resulting to children, not passengers, from
their own wilful trespasses in jumping upon the front
platform of the car, is not negligence. Hestonville R.
R. Co. v. Connell, 514.

A municipal corporation is responsible in damages
for the death of plaintiff's daughter who was drowned
while endeavoring, in a wagon, to cross a bridge, a
portion of which had been washed away by a flood.
(C. P.) Castor v. Philadelphia, 415.

A land owner who has suffered from the negligent
mining of the coal beneath, is entitled to recover from
the miner the amount of his damages. Brown v. Tor-
rence, 280. See MINES AND MINING.

One who so negligently constructs his roof that his
neighbor's house is thereby flooded is responsible for
the damage. Gould v. McKenna, 57.

Contributory negligence. The rule that a tra-
veller must stop, look, and listen, before crossing a
railroad track, applies, whether the crossing be in the
city or country. Schultz v. Penna. R. R. Co., 69.

What sufficient evidence that a foot-passenger

stopped, looked, and listened. Penna R. R. Co. v.
Werner, 520.

The rule that one crossing a track must stop, look,
and listen, does not apply to a passenger alighting
from a train and about to cross an adjoining track.
Penna R. R. Co. v. White, 516.

A minor above the age of fourteen years is held to
the same degree of accountability for contributory
negligence as if he were of full age, and hence his fail-
ure to stop, look, and listen, before crossing a railroad
track, is, per se, contributory negligence. Nagle v.
R. R., 510.


of necessary or useful articles of trade does not pre-
vent its being a nuisance, if by its noise and vibration
it shakes down plaster and cracks adjoining walls,
and causes substantial discomfort to neighbors not
more delicate or fastidious than ordinary (C. P.)
Bennington v. Klein, 281.

Liability of tenant for nuisance on demised premises.
See LANDLORD AND TENANT. Somers's Appeal, 441.

ORPHANS' COURT. The jurisdiction of the
Orphans' Court over the personal estate of a decedent
is to look into the accounts of the executor or adminis-
There is a presumption of law that every one exer-trator, pass upon their correctness, and the claims of
cises ordinary care, and though, in an action for neg- creditors of a decedent, and to make distribution of the
ligence, the uncontradicted evidence for the defendant balance to the parties entitled thereto. (O. C.) Rob-
shows contributory negligence on the part of the plain-inson's Estate, 352.
tiff, still the case must be submitted to the jury to
determine whether or not the presumption has been
rebutted. Penna. R. R. Co. v. Weis, 258. Penna.
R. R. Co. v. Werner, 520.

Where facts are not in dispute, the question of con-
tributory negligence is for the Court; but if the facts
are controverted, they must be submitted to the jury.
Saylor v. Harrisburg, 107.

The contributory negligence which prevents recovery
for an injury is that which co-operated in causing the
injury, some act or omission without which the injury
would not have happened. A negligence which has
no operation in causing the injury, but merely adds to
the damage, is no bar to the action. Gould v. McKen-
na, 57.

Intoxication of guest at inn who is robbed, how far
a bar to an action against the innkeeper. Walsh v.
Porterfield, 149.

The refusal of a railroad company to give to the
consignee any explanation of the loss of his goods is
sufficient evidence of negligence to send the case to a
jury. Penna. R. R. Co. v. Miller, 257.

There is no evidence of negligence in the fact that a
householder in Allegheny City made an opening in
the sidewalk in front of his cellar window, if such
opening is reasonable and customary, and necessary
for light and ventilation. King v. Thompson, 241.
Province of Court and jury in actions for neg-
ligence, see ARTICLE on that subject, 505.

The Judge of a separate Orphans' Court has no
power to hold the Orphans' Court of a county in which
a Judge of the Court of Common Pleas presides by vir-
tue of his commission. Livingston's Appeal, 310.

Where a county having a separate Orphans' Court
is divided, the jurisdiction of this Court is limited to
the remainder of the old county. Commonwealth v.
Harding, 305.

Practice in. A petition for a citation to executors
to file an account must show the interest of the peti-
tioner in the estate. (O.C.) Sargent Davis's Estate, 15.

An administratrix who, through an error of judg-
ment in believing the estate to be solvent pays to cer-
tain creditors a larger percentage of their claims than
they are entitled to, and in consequence thereof is un-
able to pay to others their just proportion, will not be
attached. (O. C.) Schadewald's Estate, 96.

The personal representative of a deceased guardian
who fails to file his decedent's account when requested
will be personally liable for all costs incurred in com-
pelling him so to do. (O. C.) Stewart's Estate, 434.

Where it is sought to review in the Supreme Court
the facts as found by the auditing judge, the entire
testimony taken before him must be brought up with
the record. Presbyterian Board's Appeal, 27.

After the lapse of forty years there is a presumption
that a guardian's account has been settled. Eckert's
Appeal, 21.

A bill of review will be granted though more than
See COMMON CARRIER. MASTER AND SERVANT. MU-five years have elapsed from the confirmation of a
NICIPAL CORPORATION. NOTARY PUBLIC. PROTHONO- guardian's account, when a fraud on the part of the



See EXE-

NON-SUIT. In interpleader effect of.
CUTION. (C. P.) Brenizer v. Cahill, 147.
Not to be granted when there is any evidence upon
which the plaintiff's case could be sustained. Maynes
v. Atwater, 535.

When properly granted. See NEGLIGENCE.

NOTARY PUBLIC. A notary public is not re-
sponsible for failing to make demand upon the maker
of a promissory note, unless the place of business or
residence of such maker is given to the notary by the
holder. (C. P.) Vandewater v. Williamson, 350.

The sureties of a notary public are responsible for
the act of the notary in forging a mortgage and certi-
fying under his seal that the signature is genuine.
(C. P.) Commonwealth v. Barrett, 385.

Appointment of Notaries Public, see Article, 373.
NUISANCE. One whose crops are injured by
smoke and heat from coke ovens is entitled to recover
from the proprietor of the ovens the amount of such
loss. Brown v. Torrence, 280.

The mere fact that a factory is used for the making

guardian but recently discovered is the ground of the
application. Kuhn's Appeal, 19. See COURTS. DECE-

PARENT AND CHILD. Where a female in-
fant is seduced by the son of her employer, the fact
that her father, though reserving the right to call her
home in case of sickness in the family, had agreed
that she should live in her employer's family until
her arrival at eighteen years of age, when the em-
ployer was to give her an outfit, and in the mean time
maintain her, does not debar the father from main-
taining an action per quod servitium amisit against the
seducer. Mohry v. Hoffman, 49

Where a young boy is indentured by his father to a
variety performer, the Court will cancel the indenture;
and, in a case where it appears the parents are unfit
to bring up the boy, will commit him to a home for
friendless children. (Q. S.) Commonwealth v. Dodge,

Rights of adopted children. See INTESTATES. Ann
Johnson's Appeal, 437. See INFANT. GUARDIAN AND

PARTITION. When money payable at a future
period has been charged upon real estate in proceed-




ings in partition in the Orphans' Court, that Court
has jurisdiction under the Act of 17 May, 1866, to de-
cree the payment of the charge when due out of the
real estate. Neel's Estate, 365.

indemnification by his partners against firm liabilities
A partner retiring with an
is entitled to subrogation for a firm debt paid by him
against the individual creditors of one of the partners
who claims upon a judgment obtained since his out-
going. S. W. Scott's Appeal, 269.

Liens of judgments upon land taken in the name of
a partnership. Lauffer v. Cavett, 397.


PARTY WALL. Distinction between party
walls and division fences. Richard Wistar's Appeal,


PENALTY. Action against national bank for
reservation of usurious interest. See UsURY. Bletz
v. Bank, 1.

PEW OWNER. The ownership of a pew in a
church does not give the owner any absolute right of
property as in a grant of land in fee; he has a limited
usufructuary right only. Craig v. Church, 421.

PILOT. The Board of Port Wardens may revoke
the license of a pilot for misconduct out of the State
in Delaware Bay. (C. P.) Virden's Appeal, 560.
PLEADING. Parties to action for necessaries
furnished to the estate of a deceased married woman.
See HUSBAND AND WIFE. (C. P.) Longshore v. Smith,

A demurrer to a narr. in trespass on the case wherein
the defendant is charged with having wilfully and
maliciously poisoned the plaintiff, overruled. (C. P.)
Platt v. Penna. Hospital, 346.

Demurrer. Legal effect of. (C. P.) Matthews v.
Green, 220.

Additional plea. When permitted. (C. P.) Weiler
v. Lockheim, 191.

When special pleas amount to the general issue
they will be stricken off. (C. P.) Keen v. Bockius,
135. (C. P.) Watts v. Ward, 206.

The bankruptcy of the defendant cannot be given
in evidence under the general issue of "not guilty,'
in an action for deceit. (C. P.) Weiler v. Lockheim,

Variance between "allegata" and "probata."
MECHANICS' LIENS. Rynd v. Bakewell, 167.


Point reserved, proper form of. See PRACTICE.
POOR LAW. A writ of error upon an appeal
from an order of two justices for the removal of a
pauper suspends the determination of the appeal, so
that bills of costs and expenses may be allowed by
the Court at any time up to the determination of such
writ of error. Overseers v. Overseers, 188.

PORT WARDENS. Power of, over pilot.
PILOT. (C. P.) Virden's Appeal, 560.


of the testator's bounty, belongs to them virtute officii,
| POWER OF SALE-Continued.
and may be exercised by an administrator d. b. n. c.
t. a. Jackman v. Delafield, 9.

PRACTICE. One who is seised in fee of freehold
thy, 253.
capias ad respondendum. (C. P.) McQuigan v. McCar-
premises worth fifty pounds cannot be arrested on a

plaintiff might elect, waiving the tort, to sue in as-
Capias does not lie for the arrest of one whom the
sumpsit. Where the debt is fraudulently contracted
Philadelphia Coal Co. v. Huntzinger, 310.
the only remedy is by warrant of arrest. (C. P.)

Service of process on foreign corporations. See COR-
PORATION. (C. P.) Eby v. R. R., 385.

where it does business. See CORPORATION. (C. P.)
Service of process on corporation out of the county
Coal Co. v. Boom Co., 222.

1851, upon the agent of a person absent from the State
Process cannot be served under the Act of 21 March,
but possessing an animus revertendi within a reason-
able time. (C. P.) Lanahan v. Collins, 253.

claim may be defective, if the defendant enters an ap-
Although the service of a sci. fa. upon a municipal
pearance, the defect in service is waived. City v.
Cemetery Co., 238.

suit on a bond, it is not necessary for the equitable
When a legal and equitable plaintiff are joined in a
ing some defence, which, though good against the legal
plaintiff to show title, unless for the purpose of meet-
plaintiff, is not good as against himself. Berks Co. v.
Levan, 63.

ter security for damages and costs under the Act of
A defendant in ejectment cannot be compelled to en-
13 June, 1836, § 85. (C. P.) Young v. Cooper, 206.

After a case is at issue and upon the list for trial the
security for costs, unless for cause arising since issue.
Court will not order a non-resident plaintiff to enter
(C. P.) Fuchs v. Wright, 157.

Non-residents who petition for a citation against an
may be compelled to enter security for costs. (C. P.)
assignee for the benefit of creditors to file an account
Tyndall's Estate, 562.

docket the filing of a copy of book entries relieves the
The failure of the Prothonotary to note upon the
defence. (C. P.)
defendant from the obligation of filing an affidavit of
Laird v. Potts, 56.

truth of a copy filed, is by ruling the plaintiff to pro-
The proper method of raising any question as to the
duce the original. Richardson v. Snyder, 414.

the docket will prevent a non-pros. (C. P.) Ellis v.
A narr. filed before the actual entry of judgment on
Donaghy, 541.

he must signify of record his election so to do, other-
If a plaintiff desire to treat a transcript as a narr.,
wise a non-pros may be entered. (C. P.) Paris v.
Hein, 124. (C. P.) Seidel v. Brecker, 135.

A defendant in ejectment has until the second term
to enter his defence, and judgment cannot be taken

POWER OF APPOINTMENT. When well against him for want of a plea before that time, al-
executed. See WILL.
Young v. Cooper, 43.
though an appearance be duly entered.

POWER OF SALE. Although a power to sell
includes a power to mortgage, if in a deed of settle-
ment a limited power to mortgage is given, a mort-
gage not within the scope of the power is void.
Maurer's Appeal, 77.

When an executor has sold real estate in the bona
fide exercise of his discretion under a power of sale, he
will not be liable for a loss arising in consequence of
such action. (0. C.) Getz's Estate, 416.

A power to sell, given by will to executors for the
purpose of distributing the proceeds among the objects

(C. P.)

from the record. Wilson v. Jones, 157.
When pleas are immaterial they will be stricken

Where a defendant does not ask for leave to with-
tion until long after the case is at issue and is on the
draw his pleas and to enter a demurrer to the declara-
eve of trial, the request will not be granted. (C. P.)
Flemming v. R. R., 221.

issues of fact, the demurrers are first to be disposed of,
Although generally where there are demurrers and
when special pleas are not filed until the case is called


for trial, to which the plaintiff demurs, the trial will
proceed. (C. P.) Building Asso. v. Pritchard, 416.
Where a sheriff's return is signed by the deputy
only, the Court will permit an amendment of the re-
turn, and the sheriff to add his name. (C. P.) Gra-
ham v. Furey, 56.

A Court has at all times power to correct clerical
errors in its records. Overseers v. Overseers, 380. See

Commission to take testimony. See EVIDENCE.
After varying judgments on demurrers to several
pleas, final judgments, how entered. (C. P.) City v.
Wistar, 136.


Transcript from justice of the peace, when stricken
(C. P.) Wilson v. Kelly, 272.

A judgment entered in a suit after an injunction
granted to restrain proceedings will be stricken off.
(C. P.) Rothenhauser v. Rothenhauser, 560.

A rule to open a judgment may be discharged on
terms which, if not complied with, the rule will be
made absolute. (C. P.) Wilson v. Leinbach, 483.

A wife whose dower has been fraudulently cut out
by a mortgage executed for that purpose, is entitled to
become a party defendant to a scire facias upon the
same, and if judgment has been entered, to have the
judgment opened. McClurg v. Schwartz, 361.

Trial and its incidents. Absence of counsel, when
excusable. (C. P.) Banking Co. v. Widdefield, 451.
Although the construction of a writing is for the
Court, the proper method of settling its construction
is by requesting the Court to charge upon its legal ef-
fect, and not by excepting to the competency of the
writing as an instrument of evidence. Snyder v.
Armstrong, 412.

Although the construction of a writing is for the
Court, the interpretation of parol testimony as to ver-
bal agreements is for the jury. Maynes v. Atwater, 535.
The order of admission of testimony is purely within
the discretion of the Court. Vandike v. Townsend, 55.
The omission of the Judge to reduce his answers to
points to writing, is not assignable for error, if he sub-
stantially answer them in his general charge. Scheu-
ing v. Yard, 454.

When it is assigned for error that the Court below
refused to charge the jury in accordance with a point
presented, the Supreme Court will assume that the
jury would have found the facts as hypothetically
stated in the point. King v. Thompson, 241.

A point reserved upon the trial of a case for the
opinion of the Court, must set out facts as found by
the jury, or agreed upon by the parties. The Court
cannot draw conclusions of fact from the evidence.
The question reserved must be a pure question of law.
It cannot be a mixed question of law and fact. Com-
monwealth v. McDowell, 73.

A general reservation by the Court of the legal points
involved in a case is irregular, and in such a case the
entry of judgment non obstante veredicto is unwarrant-
able. Miller v. Bedford, 144.

Relative province of Court and jury. See

Non-suit. Effect of, on feigned issue upon an inter-
pleader. See EXECUTION. (C. P.) Brenizer v. Cahill,
147; Maynes v. Atwater, 535.

Right of receiver to bring suit in his own name. See


of time. See LIMITATIONS.

TER and Servant.

a promissory note cannot free himself from liability
by calling himself a surety, and averring that he
pointed out to the holder how the money could have
been legally recovered from the maker. (C. P.) Gray
v. McDonald, 94.

The surety for an assignee of a lease is discharged
when the lessor accepts rent from the second assignee.
(0. C.) Wiley's Estate, 208.

A surety is not discharged by a variation of his con-
tract which lessens his liability. (C. P.) Barns v.
Carney, 448.

The release of real estate belonging to a principal
debtor, operates as a discharge of the surety. (C. P.)
Simkins v. Jordan, 68.

Liability of surety of bank messenger. See BANKS
AND BANKING. Bank v. Auth, 259.

Liability of surety of notary public. See NOTARY
PUBLIC. Commonwealth v. Barrett, 385.
PROTHONOTARY. Liability of prothonotary
for mistake in search. See CONTRACT. Siewers v.
Commonwealth, 17.

Commonwealth v. Morrison, 346.

RAILROAD. The discretion of a board of direc-
tors in fixing the route of a railroad, is not reviewable
in the Courts. Struthers v. R. R., 161.

Right of a railroad to locate its road upon a public
street discussed. Struthers v. R. R., 161; Cake v. R.
R., 151.

By abandoning a location after the jury of view has
assessed damages, a railroad company cannot free
themselves from liability for the damages. Beale v.
R. R., 137.

Damages for location of railroad, how apportioned
between the life tenant and remainder men.
R. R. v.
Bentley, 289. See DAMAGES. Justice v. R. R., 374.
Contract of railroad companies for joint operation of
their road, when ultra vires. Wilmington R. R. v.
Berks R. R., 115.

Failure to supply free pass according to contract,
measure of damage for. See DAMAGES. R. R. v.
Douthet, 494.

When not responsible for wanton injury committed
by brakesmen. See MASTER AND SERVANT. Coal Co. v.
Helman, 292.

The violation of rules by employés, which are de-
signed for the protection of the passengers, is per se
negligence. R. R. v. White, 516.

Action against, by one injured, while crossing the
track. See NEGLIGENCE. Shultz v. R. R., 69; Nagle v.
R. R., 510; R. R. v. Werner, 520.

Action against, by one injured in alighting from
train, R. R. v. White, 516.

Passenger railway, action against, by pedestrian
knocked down at public crossing. R. R. v. Mulhair,

Action against, by infant injured while jumping on
front platform of the car. R. R. v. Connell, 514.
WIFE. Building Asso. v. Cook, 428.

RECEIVER. A receiver appointed in New York
has no right to bring a suit in his own name in Penn-
sylvania. (C. P.) Nail v. Ewing, 32.

Receiver of a corporation, when appointed. See
CORPORATION. (U.S. C. C.) Hazzard v. Credit Mobilier,

RECORD. Upon a rule for judgment a record in
one case cannot be used to contradict an affidavit of
defence filed in another suit, brought by the same
plaintiff. Feust v. Fell, 43. See EVIDENCE, Woodward
v. Carson, 396.

REMAINDER. Curtesy is not appurtenant to
an estate in remainder. (C. P.) Young v. McIntyre,
252. See WILL.

REPLEVIN. Effect of, when issued out of the
United States Court, on an order of sale of perishable
property seized under a foreign attachment in the
State Court. (C. P.) Green v. Kenney, 574.

When not proper remedy, Sneathan v. Grubbs, 342.
See LANDLORD AND TENANT. Rosenthal v. Lehman,559.
RES ADJUDICATA. A decree of the Orphans'
Court is binding upon all parties who have submitted
themselves to its jurisdiction. Otterson v. Gallagher,



REVENUE LAWS of the United States.
ceedings for the forfeiture of goods under the Federal
statutes against smuggling, are in rem; and conversa-
tions had and information given in regard to their
illegal importation in the absence of their owner and
claimant, are admissible in evidence for the Govern-
ment. Bean v. United States, 542. See STAMPS.


Continu ed.

Bridges between counties and townships, by whom
to be erected. Borough of Goldsborough v. Coolbaugh
Township, 343.

RULE of the Supreme Court relating to writs
of error, 337.

SALE. Title to chattels, when it vests in pur-
chaser. Euwer v. Van Giesen, 363; Sneathen v. Grubbs,
342; R. R. v. Wiremen, 480.

In a sale of goods by sample without any express
warranty or fraud, the purchaser cannot defend against
payment of the price because they prove unfit for the
purpose for which they were intended. Altoona Iron
Works v. Axle Co., 271.

SCHOOL LAW. Creation of new school districts.
Apportionment of school property. In re Jenkintown
School District, 65.

SEARCH. Liability of Prothonotary for false
search. See PROTHONOTARY. Seiwers v. Common-ealth,


SET-OFF. An affidavit of defence in which it is
averred that the plaintiff is indebted to the defendant
in the sum of one hundred dollars for professional ser-
vices rendered to him as an attorney-at-law within six
years last past, contains a sufficient allegation of set-off
to prevent judgment. Lawrance v. Smedley, 42.
Damages arising from tort when admissible as a

RIVERS AND STREAMS. The great rivers
of the Commonwealth are held as the common property
of all its citizens, for the public use, and any legisla-set-off. (C. P.) Bradley v. Dubois, 107.
tive grant interfering with such use will be strictly
construed. Johnson v. Crow, 33.

The owner of land on the banks of a stream is en-
titled to the use of the water, free from all pollution;
and if a mine owner permits drainage from his mine to
flow into the stream, he is answerable for such damage
as may ensue. Sanderson v. Coal Co., 97.

The jurisdiction of the Quarter Sessions over the open-
ing of streets in Philadelphia has been uniformly exer-
cised and never successfully questioned since 1790. In
re Parrish Street, 215.

The jurisdiction of councils to open streets under the
Act of 21 April, 1855, is concurrent and not exclu-
sive. Ib.

Local laws in relation to opening streets in the several
districts before consolidation are expressly continued
by the Consolidation Act. Ib.

The cost of widening a toll road though within the
city limits is not assessable upon adjacent properties.
Breed v. Allegheny, 168.

Viewers appointed to locate a public road have no
power to assess damages done to property holders, and
to direct that they be paid by the petitioners. In re
road O'Hara Township, 428.

Power of courts over damages. Ib.

No appeal lies to the Common Pleas from assessments
of damages caused by the laying out of public roads by
proceedings in the Quarter Sessions. (C. P.) Freeze
v. Columbia County, 145.

New south line of Chestnut Street. See Richard
Wistar's Appeal, 140.


Occupation of public streets by railroads. See RAIL-
Cake v. R. R. 151; Struthers v R. R. 161.
Right of pedestrian at public crossing as against a
passenger railway company. West Phila. P. R. W.
Co. v. Mulhair, 508.

Mandamus to compel the payment of certificates
issued for the construction of a road, who are necessary
parties to. Commonwealth v. Thompson, 129.

Unliquidated damages arising from a tort cannot be
set-off in an action founded upon a contract. (C. P.)
McIlvaine v. Rand, 176.

Quere. Whether a defendant can claim a partial set-
off in one action and the remainder of his set-off in
another. (C. P.) Matthews v. Green, 220.

Damages for breach of warranty of title may be set
off against an action on a purchase-money mortgage.
Wacker v. Straub, 381.

A bank is entitled to set off unmatured notes of an
insolvent against an action brought by his assignee to
recover the balance of a deposit. Stewart's assignee v.
Bank, 399.

See also Lanback v. Leibert, 80; Cake v. Bank, 88.
SHERIFF, when permitted to amend return. See
PRACTICE. Graham v. Furey, 56. See EXECUTION.

SHIPS AND SHIPPING. A steamer over-
taking a sailing vessel is bound to take the proper
precautions to pass her in safety, but the preceding
vessel is bound to maintain a proper lookout, and not to
change her course at a time and under circumstances
which would involve danger of collision, except under
the pressure of an imminent greater peril. (U. S. C. C.)
The Illinois and Ellen Holgate, 353.

It is the duty of a sailing vessel to exhibit a lighted
torch upon the approach of a steamer at night, and
failing so to do, in case of collision, she will be charged
with concurrent negligence. (U. S. D. C.) The Mar-
garet and Catharine Whiting, 304.

United States, 542.


STAMPS. The failure to cancel a revenue stamp
upon a promissory in the manner prescribed by the
Act of Congress, renders the note inadmissible in evi-
dence. (C. P.) Andress v. Thomas, 414.

The failure to stamp an instrument of writing as
prescribed by the Internal Revenue Act may be cured

« ForrigeFortsett »