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Opinions in a Volume 24

delivered the opinion of the Court. On the evening of January 21st, 1890, I. E. S. Good was hilled near the corner of Ostend street and Warner street — both public streets in the City of Baltimore. This suit is brought in the name of the State, (for the use of his widow and child,) under Article 67, sections 1 and 2, of the Code of Public General Laws, against the appellant, upon whose railroad he...
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delivered the opinion of the Court. This is an action of ejectment brought by parties claiming to be descendants of Andrew Stigar, long since deceased, against the appellant, the defendant below, for the recovery of certain undivided interests in a parcel of land in the City of Baltimore. The parcel of land sued for is described in the declaration by metes and bounds, courses and distances, and as...
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delivered the opinion of the Court. The question in this case is not complicated with controverted facts. It is sing'le and narrow, hut very important. It is simply whether a decree in a former case, the effect of which was, it is claimed, to sustain the validity of certain deeds of John W. Royston, .the equi*559table plaintiff in this case, to Albert H. Horner, one of the defendants in this case,...
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delivered the opinion of the Court. In 1874 Thomas J. Elack, of Baltimore City, died, intestate, leaving four children and some grand-children —the children of a deceased son — his heirs-at-law, and distributees together with his widow. Letters of administration were granted to his son, James W. Elack, who undertook the settlement of the estate. Henry H. Elack and David Hudson Elack, sons of the d...
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This is an action of assumpsit in which the plaintiff, as administrator de bonis non on the estate of John Charlton, deceased, sues to recover damages for the breach of a contract of sale. Jury trial was waived, and the case was tried to the court. The facts are as follows: On January 13, 1885, William W. Nichols, at that time administrator de bonis non on the estate of the deceased, was, on his p...
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The bill sets out that Henry T. Rogers died in Providence, intestate, March 18, 1886, possessed of real estate with buildings thereon; that the complainants, his *Page 624 brother and two sisters, were his next of kin and heirs, and as such are owners of said real estate; that the respondent, Ella M. Rogers, falsely and fraudulently claims to be the widow of said decedent; that, to defraud the co...
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These cases are each assumpsit, the first to recover the sum of five hundred dollars, the same being the balance of a deposit made by Gorham Thurber, the defendant's testator, in his lifetime, in the Providence Institution for Savings, in his name as trustee for the plaintiff his son, together with interest thereon; and the second, to recover the dividends upon certain stock of the Navassa Phospha...
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The difficulties of construction arise from the repetition of the words "in manner following," at the end of the devise to Sarah M.S. Miller, and from the arrangement of the will in numbered paragraphs. From the occurrence of the words quoted arises the implication that some of the after provisions were intended to modify or limit the gift in fee to Sarah. But these words must be much distorted fr...
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Opinion by This was an action of trespass quare clausum fregit brought by George M. Whitney and Lucinda M. Whitney against Alfred Short, William C. Culbertson, Roscoe A. Davidson, Andrew M. Backus, and Edwin J. Dodge, doing business as the Penn Lumber Co., Limited, to recover the damages allowed by § 3 of the act of March 29, 1824, Pur. Dig. 1635, for cutting timber trees without the consent of th...
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Opinion by In drawing the conclusions on which this decree is based, the learned master and court below appear to have attached little, if any, importance to principles of equity, which ought to have controlling effect in eases like this, viz.: He who comes into equity must do so with clean hands, or, as otherwise expressed, “He that hath committed iniquity shall not have equity : ” 1 Pomeroy’s E...
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This was an appeal from the decree of the court below continuing a preliminary injunction. The decree is affirmed and the appeal dismissed at the cost of the appellants....
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The judgment is affirmed upon the opinion of the learned judge below. *471Com. ex eel. Jacoby v. George, Appellant. April 18, 1892: The judgment is affirmed upon the opinion of the learned judge below....
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Opinion by The real question in this case has been overlooked. We do not think the facts set forth in the affidavit constitute a valid defence against a bona fide holder. There is sufficient in the affidavit, however, to call upon the plaintiff to show that it is such holder. The general rule in regard to commercial paper undoubtedly is, that the plaintiff is presumed to be a bona fide holder, an...
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Opinion by In the year 1884, the firm of Vernon, Blood & Co., manufacturers of hosiery, became embarrassed. At that time they were indebted to James Kitchenman, the defendant, in sum of $3,500 for borrowed money. The latter also held a purchase-money mortgage for $16,200, which covered the factory, land and machinery. They were also indebted for borrowed money to George Branson, whose estate is t...
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This was an appeal by H. H. Yard, from an order of the court below, requiring him to appear before a subcommittee of the councils of the city of Philadelphia, to be sworn and testify in an investigation being conducted by said committee, in the matter of the deposits of the city moneys and the default of John Bardsley, the city treasurer. The appellant appeared before said committee in obedience t...
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Opinion by *557The discussion of this case, both in the paper books and at bar, has taken a much wider range than its facts justify. All that is essential to its proper decision, can be considered in connection with the second specification of error, which is as follows : “ The learned trial judge erred in charging the jury as follows: I instruct you, therefore, that if you believe the testimony w...
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It is sufficient to say in regard to the first and second specifications of error, that there is nothing upon the record which would have justified the court below in striking off the lien. The remaining specification alleges that the court erred in refusing to make absolute the rule to open the judgment. There is nothing before us to show that the discretion of the court below was not properly ex...
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The plaintiff had no case upon the facts. It is useless, therefore, to discuss its law. Judgment affirmed....
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Judgment affirmed in each case....
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We find nothing in the charge of the learned judge below to indicate error. Judgment affirmed....
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We are of opinion that the learned judge below was fully justified in refusing to take off the nonsuit. There was no evidence of negligence on the part of the defendant company to submit to the jury. The deceased while waiting at Collins’ station for a train, and while standing on the platform, was struck by the bumper of the locomotive, causing an injury from which he subsequently died. There was...
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Opinion by The suit was brought in the court below upon an insolvent bond. The jury rendered the following verdict: “Verdict for plaintiff for $5,315.12, and the jury find the following facts: That defendant, Kraus, after the adjournment of the court on October 16, 1886, did, on the same day, thereupon voluntarily surrender himself to the county jail of said county, with the point of law reserved...
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Judgment affirmed....
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We are of opinion that the facts of this case justified the instructions of the court. It was for the jury to say, under all *502the evidence, whether Clarence Davies had authority to bind the defendant to accept the coats in question. As there is nothing else in the case, it does not require discussion. Judgment affirmed....
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The opinion of the learned judge of the court below, sustaining the defendant’s demurrer, is so clear and satisfactory, that we affirm the judgment for the reasons given by him. Judgment affirmed....
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It is settled by abundant authority that where real and personal estate are blended in the residuary clause of a will, the legacies are a charge on the real and personal estates so blended: Gallagher’s Ap., 48 Pa. 121; Brisben’s Ap., 70 Id. 305; Davis’s Ap., 83 Pa. 348. To these authorities may be added one case, decided at the present term, and not yet reported.* The appellant contended, however,...
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Opinion by The business of peddling has been treated as a proper subject for police regulation and control in this state since 1784. The legislature has forbidden it to all unlicensed persons, and has prescribed the conditions on which licenses may be obtained from the courts. The necessity for such legislation is a question for the lawmakers. The validity of any particular statute, relating to th...
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The first specification alleges that the court below erred in refusing to send their precept to the court of common pleas of Phila. county to try before the jury the following question of fact: “ Whether Theodore N. Kates is or is not the son of William and Eliza Jane Kates.” The second and fifth specifications raise the same question. The 55th section of the act of March 29, 1832, P. L. 208, prov...
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This was a suit to recover the penalty imposed by the act of May 21, 1885, for the sale of oleomargarine in this commonwealth. It was contended by the defendants that the act in question is unconstitutional and void, as an interference with the rights of citizens to conduct interstate commerce guaranteed by the federal constitution, so far as it applies to sales of oleomargarine manufactured outsi...
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We are of opinion there was a conversion of the real estate. It is true, there was not a constructive conversion by reason of the language of the deed creating the trust. Power was therein given to the trustee, at any time during the life of the life-tenant, Sidney H. Lackey, with her consent, to sell the premises, and the money arising from such sale or sales, to invest in trust for the same uses...
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We do not think the court below erred in limiting the damages for the loss of the mare to the amount at which it was valued in the bill of lading. The mare was shipped at Washington over the Baltimore & Potomac R. R., and consigned to the plaintiff at Harsimus, New Jersey. It was claimed that when the train reached Baltimore, and had passed into the control and custody of the defendant company, it...
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Most of the specifications of error are to the findings of fact by the master. These findings were approved by the court below and have not been shown to be erroneous. The facts as found fully justify the decree. In the twelfth specification, however, it is alleged that the court erred in dismissing the following exception to the master’s report. “ In not reporting that the title to the soil of th...
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This was a municipal claim for macadamizing Highland avenue in front of defendant’s property. The defendant resisted the claim in the court below upon the ground that it was rural property, and not liable to be assessed under the foot-front rule. The errors assigned are all to the charge of the learned judge. The defendant’s points were not answered specifically, because covered by the general cha...
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Opinion by Tbe learned court below found substantially that the title to the goods levied upon was in the claimant in trust “ to manage, release and dispose of the same as he saw proper, only accounting to the firm (Wood, Brown & Oo.) for the proceeds.” Having such title, it cannot be doubted that the claimant could have maintained trespass against the sheriff if that officer had sold the goods. ...
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Opinion by The question, whether Laura Evans had an insurable interest in the life of Griffith H. Pugh, does not arise in this case. She did not insure his life, nor was she the holder of a policy thereon. The amount of the policy, $60, was paid to her after the death of the assured, by the company defendant, under the *5982d clause of the policy, which is as follows: “ The company may pay the sum...
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Opinion by The difficulty in the way of the plaintiff’s contention, sustained by the court below, is twofold. In the first place there is no ambiguity in the contract declared upon, to be explained by parol evidence, and, in the second place, the effect, if any, *53and certainly the manifest object of the testimony offered and admitted under objection, was not to éxplain anything that was written...
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Opinion by Two indictments were preferred against the appellant for one act of unlawful carnal intercourse, committed on June 8, 1890, with Elsie L. Weller, who was then under the age of sixteen years. In one he was charged with fornication and bastardy, and in the other with rape, as defined by the act of May 19, 1887, P. L. 128. On June 1, 1891, he was tried on the indictment for fornication an...
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Opinion by The road upon which the injury complained of was alleged to have been sustained is an ancient highway. At the point in question there is a cut or excavation of about 4 feet in depth, and the width of the roadway was, at the time of the accident, about 17.5 feet. . On the bank, at the distance of about 5 feet from the outer edge of the gutter, as it was at that time, stood a tree, the t...
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This case is ruled by Welsh v. Lehigh & Wilkes-Barre Coal Co., 3 Cent. R. 386. That was a suit by this same plaintiff against that company to recover damages for the identical injury for which this suit was brought. We there held: “ That plaintiff was injured while employed by one Wasley in sinking an air-shaft.^. The purpose of this shaft was to connect with the mine work of the defendant. Wasley...
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This bill was filed in the court below to restrain the defendant company from rebuilding the elevation and extension of its toll bridge described in the bill, in a southeasterly direction from the southeasterly bank of the Susquehanna river. It appears that the bridge of the defendant company had been frequently threatened with destruction from ice and high water, and, upon several occasions, prio...
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This bill was filed to restrain the borough of Wyoming from removing buildings, fences and improvements, which the complainants allege are upon their private property, and not in the public highway. We have a clear and able report from the learned master, from which it appears that Wyoming avenue has been opened of its full width, and used as a public highway beyond' the memory of any living man. ...
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Opinion by This was not, as contended by the learned counsel for the appellees, merely an appeal from the granting of a preliminary injunction. It was an appeal from what was practically a final decree, made upon the report of the master, with all the facts before the court. The injunction referred to was issued in aid of, and to enforce the decree of the court. Hence, we need not refer to the ca...
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Opinion by This suit originated before a justice of the peace. It was tried in the court below upon the transcript without a declaration. The transcript sets forth that plaintiff claims $145 for timber sold to the defendant. Upon the trial in the court below, the plaintiff produced a promissory note for $145, signed *593by the defendant, which was objected to, and excluded upon the ground that the...
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Opinion by We reverse this case for the reasons given by the learned president of the court below in his dissenting opinion. The judgment is reversed, and it is ordered that judgment be entered in favor of the relator....
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None of the specifications of error is sustained. The declarations of Jacob Castner, the street commissioner, made while engaged in doing the work, were a part of the res gestee. It was not denied that he was acting as street commissioner, and within the scope of his authority. In any event, the testimony proved that he was so acting. He was engaged at the time the declarations were made in workin...
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The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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We find no error in this record. The question whether the plaintiff was guilty of contributory negligence was one which, under the circumstances, was entitled to be passed upon by the jury. It could not have been ruled as a question of law. There is nothing else in the case. Judgment affirmed....
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delivered the opinion of the Court. The motion to dismiss this appeal must be overruled. It is based upon Article 47, section 31, of the Code, which requires records in insplvent proceedings to be transmitted to this Court within sixty dajrs from the date of the decision appealed- from. But this is an appeal from a Court of equity and is governed by Art. 5, sec. 31, which allows three months from ...
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This is an action of trespass on the case, to recover damages from the city of Providence for injuries resulting from the alleged negligence of said city in failing to keep a certain public street or highway known as Exchange Place in suitable repair, so that it should be safe and convenient for travellers. The declaration sets out that some of the members of the fire department of said city conne...
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This bill sets out that Mrs. Mary W. Chapman, a widow, without children, in the summer of 1887, made an absolute transfer of all her personal property, amounting to about six thousand dollars, to the complainant, in trust, to manage the same and to pay over the income, or more, to her during her life, and at her decease to transfer it as she should direct by a written memorandum, signed by her, to...
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This is a suit in equity to marshal and settle the estate of Aaron B. Curry, late of the city of Providence, deceased. The facts set forth in the bill, in so far as the same are pertinent to the present inquiry, are, first, that the said Aaron B. Curry died on the tenth day of January, A.D. 1891, leaving a last will and testament, which has been duly admitted to final probate, and now remains on r...
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By his will made in 1831, Caleb Fiske bequeathed to the president and two vice-presidents of the Medical Society of the State of Rhode Island, the dividends arising from forty shares of stock in the Union Bank, in trust for the purposes of giving premiums for treatises on subjects conducive to the advancement of medical science, to be selected by said trustees; for the compensation of said trustee...
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Our opinion in relation to the first question propounded by the complainant is, that so much of the one fourth of the income arising from the trust estate held by him under the fourth clause of the will of Duncan C. Pell, accrued and to accrue from and after the death of Duncan Archibald Pell during the life of Anna Pell, and which would have been payable to said Duncan Archibald Pell if he had su...
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The opinion of the learned president of the court below is so clear and satisfactory that we adopt it as the opinion of this court. Judgment affirmed....
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Judgment affirmed....
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Opinion by In the case of White v. Crawford, 84 Pa. 433, we decided that, upon a sealed judgment note made in 1873, and containing a waiver of stay of execution, it was not competent for the court of common pleas to grant an order of sale under the act of Feb. 17,1876, to the debtor’s assignee for the benefit of creditors, where the payment of the purchase money was postponed for an unreasonable t...
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Opinion by We think it was error to exclude the paper referred to in the first specification. It had two subscribing witnesses. One of them, H. H. Brown, was shown to reside in New York, and beyond the reach of a subpoena. It was competent, therefore, to prove his handwriting. Patrick Regan, the other subscribing witness, was not called, because the defendant had been unable to find and subpoena h...
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This case has been so well discussed by the learned judge of the court below, that we affirm the decree for the reasons given by him. The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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The second specification alleges that the court below erred in charging the jury as follows: “ The testimony in this case does not prove a lease and rent in arrear due to James Mc-Alarney, executor of George Longenberger, deceased, so as to justify the distress and to entitle the defendant to recover in this case.” This instruction was entirely accurate. The paper executed by W. A. M. Grier and Ja...
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This was a feigned issue, under what is known as the sheriff’s interpleader act. The only specification is, that the court erred in refusing to charge the jur}*- as requested in the defendants’ fourth point, which was as follows: “ Under all the testimony in the case, the verdict should be for the defendant.” The affirmance of this point would have withdrawn the case from the jury, which could not...
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The decree of the court below, from which this appeal was taken, was in the alternative. It ordered “that James Me*565Alarney, executor of the last will and testament of George Longenberger, deceased, execute a bond to the commonwealth, with John Snyder, or some other person, as surety, to be approved of by the court, or the president judge thereof, in the penal sum of $10,000, conditioned for the...
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We affirm this decree upon the opinion of the learned court below, and dismiss the appeal at the costs of the appellant....
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Opinion by This case was argued at length upon the merits, as affected by the question whether the title of the petitioner Mrs. Guilbert, ran to the centre of Hamilton street. On this question we should be content to affirm the judgment on the opinion of the learned court below. But examination of the record discloses nothing to bring this question before us. The matters were within the jurisdicti...
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The decree is affirmed, and the appeal dismissed at the cost of appellant....
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The decree is affirmed, and the appeal dismissed at the cost of the appellant....
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While it may seem harsh to refuse the libelant a divorce, we are clearly of opinion that he has not made out a case within the act of assembly. The learned judge of the court below has given sufficient reasons for his decree, which render a discussion of the case here unnecessary. The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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This is an action of the case brought under Pub. Stat. R.I. cap. 204, §§ 15, 18. The plaintiff is the widow of William T. Chaffee, and sues to recover damages for his death, occasioned, as she alleges, by the negligence of the defendant. On September 6, 1890, said William T. Chaffee was a passenger on the train known as the Lowell train on the railroad of the defendant. He was on his way from Attl...
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The court decides, on the authority of the carefully considered case, Rawson v. Inhabitants of School District No. 5in Uxbridge, 7 Allen, 125, that the convey *Page 808 from John Field to William Barton and others carried an absolute estate in fee simple to the grantees, and therefore the petitioner has no claim for any reversionary or resulting right in the land conveyed. The grantees of the lot...
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This is an appeal by the trustee of School District No. 11 of Lincoln from the action of the school committee of that town, hereinafter stated. The appeal raises the question of the validity of the proceedings of the town under Pub. Laws R.I. cap. 447, of May 29, 1884. If such proceedings were valid, then the action of the school committee was authorized and legal; if they were invalid, then such ...
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The case stated calls for a construction of the will of Moses B. Lewis, late of Hopkinton, deceased. The clauses in question, numbered for convenience of reference, are as follows: – 1. "I give, devise, and bequeath to my wife, Phebe L. Lewis, the interest of twenty-six hundred dollars in the First National Bank in Hopkinton, R.I., and also the privilege of the south half of the house and also the...
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The complainants base their claim for relief upon the assumption that the dam in question was erected under the provisions of the mill act; and consequently, as the water is not now used for mill purposes, they are entitled to have the river restored to its natural flow. The court is of opinion that it is not warranted to make such a presumption. The only evidence to support it is the fact that fo...
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The numerous causes of error assigned are of five classes:first, that there was no legal cause for the removal of the petitioner; second, that there was no evidence to substantiate the charges; third, that evidence of a prior investigation of the charges was excluded; fourth, that evidence of acts of the petitioner prior to his term of office was admitted; fifth, that the mayor of Pawtucket was in...
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October 26, 1889, the Probate Court of West Greenwich, having jurisdiction of the matter, made and entered an order allowing the account of Willis A. Carr, administrator de bonis non on the estate of John T. Lewis. December 6, 1889, Mary A. Kenyon filed in the office of the Probate Court a paper writing alleging that she is a judgment creditor of the estate of said John T. Lewis, and claiming an a...
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delivered the opinion of the Court. This case presents two appeals from the Orphans’ Court of Baltimore City by John Glenn, trustee of the National Express and Transportation Company. The first is from an ‘order of the Court passed on the 5th day of November, 1890, revoking letters of administration granted to A. Robinson White on the estate of John 0. Reid, deceased. The appointment was made on t...
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delivered the opinion of the Court. McKenzie brought suit against the Piedmont and Cumberland Railway Company, a body politic and corporate. The plaintiff averred in his declaration that the defendant had built a bridge across the Potomac river, and that it was constructed and maintained in so negligent a manner that its superstructure fell into the regular and usual channels of the river and obst...
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Opinion by An indictment may be quashed for defects appearing on its face, and for matters dehors the record. In the case at bar, our information respecting the reasons *57which induced the court below to quash the indictment is derived exclusively from a transcript of the stenographer’s notes, printed in the appellant’s paper book, the correctness of which is not disputed by the appellee, and fro...
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This case has been so well discussed by the learned judge of the court below, in his opinion refusing to take off the nonsuit, that we affirm the judgment for the reasons there given by him. Judgment affirmed....
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Judgment affirmed....
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We do not think it was error to admit in evidence what William Nipsch testified to at a preliminary examination of the appellant. The witness was deceased at the time of the trial, and his testimony at the examination referred to was taken in the presence of the appellant and his counsel. Moreover, he was cross-examined at length by the appellant’s counsel. That evidence, taken under such circumst...
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Opinion by The question raised on this appeal relates to the distribution of the proceeds of a sale by the receiver of the property of the Keystone Oil Co., described in the claims of the mechanics and material-men. These claims, with interest and costs, amounted to the sum of $38,625.02, were within the purview of the mechanics’ lien laws, sufficient in form and substance, and filed in time, and ...
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Opinion by In the appeal of the Imperial Refining Co., Limited, from the decree complained of in this case, we held, at this term, that the auditor appointed to distribute the fund arising from the sale of the property described in the mechanics’ claims, on which judgments were recovered, could not restrict the lien of such judgments to a portion of that property, on the ground that the curtilage ...
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This case has been so well discussed by the learned judge of the court below, that it is not required we should add anything to what he has so well said. The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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Opinion by We are of opinion that the defendant’s 2d point should have been affirmed. The point was as follows: “ If the jury believe that the plaintiff, on June 27,1890, agreed to take from the defendant $15.00 in full satisfaction of the damages caused by goring of plaintiff’s horse by defendant’s bull, and the defendant then and there paid the amount agreed upon, the subsequent death of the hor...
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Opinion by The first assignment of error must be sustained. Plaintiff testified that he had had a six months’ engagement at the Steer Mills, which he had given up to enter defendants’ service, and on this fact it was argued to the jury and submitted to them in the charge, that it would be unreasonable to suppose he would have given up that position for a contract such as defendants alleged he made...
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Opinion be The general principle upon which the law awards damages is compensation for the loss suffered. The amount may be fixed by the parties in advance, but where a lump sum is named by them the court will always look into the question whether this is really liquidated damages or only a penalty, the presumption being that it is the latter. The name by which it is called is but of slight weight...
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Opinion by The plaintiff was elected to the office of coroner of Schuylkill county, at the general election in 1889, and entered upon his official duties on the first Monday of January, 1890. By the then last federal census the population of that county was 129,974, and that must, in the absence of any legislative provision for otherwise ascertaining the fact, be deemed and taken to have been the ...
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We cannot sustain any of the specifications of error. The principal contention was over the judgment of Yietor & Achclis, which the appellants contended was a void instrument, and did not warrant the entering of judgment and the issuing of execution: See second specification. We cannot say that it was a void instrument. It was a note for $12,500, payable to the maker or bearer, with a confession o...
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We do not think it was error to refuse the issue prayed for. It is true, the circumstances connected with the destruction of the codicil are of a peculiar nature, and somewhat suspicious. The law presumes, however, in the absence of proof to the contrary, that it was done by the testator himself. There is nothing beyond mere suspicion pointing to anyone else. The most that the evidence shows is, t...
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The judgment in this case is affirmed upon the opinion of the learned court below....
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W e see nothing in this record to justify us in reversing the decree of the court below dissolving the preliminary injunction. At the same time we deem it proper to say that upon final hearing it will be competent, and it may, perhaps, be the duty of the court below in the exercise of its equity powers, to make such order as the facts of the case may seem to require for the protection of life at t...
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Judgment affirmed....
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The complainant alleges that the court below erred in quashing the attachment. It was commenced under the 27th section of the act of July 12, 1842. The transcript from the justice shows that the plaintiffs claimed the defendant was indebted to them in the sum of $254.48, for merchandise sold and delivered. The affidavit of A. Gates, one of the plaintiffs, further avers “ that he has good reason to...
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This case is ruled by Spencer v. Bloom, decided herewith. The judgment is reversed and a procedendo awarded. See preceding cases....
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Opinion by The affidavit in this case, upon which the attachment was issued, is more specific than that in Gates v. Bloom decided herewith. [The next case.] It charges the fraud in the language of the act of 1842, which would seem to be sufficient, under the authority of Gosline v. Place, 32 Pa. 520, where it was held: “ That it is sufficient that the affidavit set forth a case of fraud in genera...
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Opinion, Each of the above cases is an appeal from the refusal of the learned judge below to grant a preliminary injunction. The object of the respective bills was to test the constitutionality of the act of assembly, approved June 19, 1891, entitled: “An Act to regulate the nomination and election of public officers; requiring certain expenses incident thereto to be paid by the several counties a...
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Opinion by While it is true that the clause of the act of June 9, 1891, which prohibits wholesale dealers from selling less than twelve pint bottles, and from permitting liquor to be drunk on the premises, is a proviso clause to a section which directs a method of granting licenses, yet the language of the proviso is very general in its terms, and embraces all cases thereafter occurring. That the ...
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We are of opinion that the general borough law of 1851 does not repeal that portion of the road law of 1836 authorizing the court of quarter sessions to lay out a private road. The contention of the appellant is, that while the act of 1836 is not repealed generally, yet it is no longer operative as regards boroughs, and that, since the passage of the act of 1851, whatever authority there is in the...
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This case was here upon a former appeal, and is reported in 148 Pa. 595. As the learned judge below has followed our rulings in that case, it would be unprofitable to discuss it further. Judgment affirmed....
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Opinion by This is an action of ejectment brought to recover an undivided one seventh of a farm of 220 acres, situate in Buffalo township, Washington county, and the parties to it are sons of Samuel J. Crothers, who once owned the farm, and who died in July, 1889. The appellant claims title to one seventh of it as an heir of Samuel J. Crothers, and the appellee claims title to the whole of it unde...
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Opinion by This is an action of assumpsit brought to recover the price of goods sold and delivered to John W. Hathaway, the balance on an account for money deposited with him, and the balance on an account for money paid on his order to his use. It was thought by the learned judge of the court below that these balances were not recoverable in this action, but that resort must be had to account ren...
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Opinion by A purchase of stock for speculation, even when done merely on margin, is not necessarily a gambling transaction. If one buys stock from A, and borrows the money from B to pay for it, there is no element of gambling in the operation, though he pledge the stock with B as security for the money. So if instead of borrowing the money from B, a third person, he borrows it from A, or in the l...
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Opinion by This case is very similar to Peters v. Grim, decided at the present term, and is governed by the same principles. In this as in that case the transactions, whatever their character, were completed and over, an account had been rendered, accepted and settled, the profits distinguished and separated from the original deposit, and paid over to the plaintiff, leaving in defendant’s hands on...
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Opinion by This cause has been twice tried in the court below, and was before this court two years ago upon appeal from the first judgment, at which time the questions now raised were determined against the present appellant. At the first trial, as in the last, it appears to have been conceded that title to three tracts or parcels of land, one thereof containing 98 acres, another containing 27£ ac...
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Opinion by The defendant was indicted for forcible entry and detainer, and, having pleaded to the indictment, was, on Sept. 14, 1887, found “ not guilty of forcible entry, but guilty of forcible detainer.” On the next day a rule for a new trial was granted, which was, on Jan. 30, 1888, made absolute. Nothing further was done in the cause until Dee. 11, 1888, when the defendant pleaded guilty, as w...
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Opinion by The appellants claim that their case is governed by the principle that a promise to pay the debt of another is not within the statute of frauds where the promisor has money or property of the debtor placed in his hands for the purpose of such payment, or where in any other way an agency or trust arises which involves a duty to pay. In all such cases the party for whose benefit the promi...
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Opinion by We are of the opinion that upon the facts set forth in the affidavit of defence in this case, a sufficient prima facie defence was alleged to carry the cause to a jury. The articles of association provided that the actual capital stock of the plaintiff company was to be $200,000 in 20,000 shares of $10 each. That of these, 3500 were to be paid, together with $18,000 in money, to the pro...
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Opinion by The learned court below allowed a recovery of damages in this case, upon the rule that applies in cases where property is taken or injured by a corporation in the exercise of the right of eminent domain. We have very recently had occasion to consider this subject in the case of Robb v. Carnegie, 145 Pa. 324. We there held that that rule does hot apply in litigations *159between private ...
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Opinion by The specifications of 'error are thirty-three in number, and fill one hundred and twelve printed pages. It would be profitless to discuss them in detail. The main burden of the argument is- against the admission of parol evidence to show a different contract from the one in *180writing signed by the parties in April 1887. It is claimed that as no fraud or mistake is alleged, it was not...
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Opeñion by The appellants had a decree of the court of common pleas for the payment of money by the Reading Iron Works, affirmed by this court, 187 Pa. 282, and it would seem that this ought to have put an end to further contention as to the payment out of the assets of the iron works. When however the claim was presented to the auditor, he entered into an elaborate examination of the proceedings ...
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Opinion by The court below dismissed the bill on the ground that it showed no special damage to the complainant because it alleged no ownership of the lot of ground adjoining Court street. The learned judge seems to. have regarded ownership in this connection as limited to a technical estate in the land, if not to a fee simple. But this is much too narrow an interpretation. Ownership is not a tech...
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Opinion bt At the place where the accident in this case occurred there were three railroad tracks. One was a switch, and the other two were the main tracks of the defendant’s road. It was the lower station at Hazleton, near which were the Hazleton shops, on the north side of the railroad, and on the south side was the office or depot of the defendant. The space between the office and the tracks, ...
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Opinion by The plaintiff was injured by an accident happening on one of the streets of the city of Lebanon. She seeks by this action to hold the city responsible for the consequences of the accident on the ground that the proximate cause of her injury was the negligence of the city. The circumstances are told by the driver of the omnibus in which she was a passenger, and whom she called as a witne...
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Opinion by By “ An Act relating to Allegheny county, ” approved May 1, 1861, the salary of the treasurer of that county was fixed at $4,000 per annum, and, by a supplementary act, approved March 11,1870, it was increased $500. Unless, therefore, these acts have been repealed, the salary of that officer is now $4,500 per annum, and the learned court below erred in entering judgment in his favor for...
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Opinion by These are appeals from decrees awarding preliminary injunctions. They involve the same general questions, modified, to some extent, by circumstances peculiar to each case; and they may be summarized as follows, viz.: *2211st. Can a railroad be lawfully located upon a public street in such manner as to occupy it longitudinally without an express legislative permission ? 2d. Can a railroa...
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This case, although elaborately argued, both in the paper books and at bar, does not require an extended discussion. The-appellant contends that the purchases of the real estate by General Kane, at the tax and sheriff’s sales, in 1874, were void, for the reason that, at the time, he was agent of the plaintiff corporation, and that his purchases, because of the agency, were-fraudulent, and therefor...
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This case involves the same question as McKean and Elk Land and Improvement Co. v. Clay, just decided. There was undisputed evidence in this case, as well as in the one referred to, that the plaintiff had notice some ten or eleven years prior to the commencement of this action of the purchase by Kane of the land in question. The learned judge, therefore, properly held that the plaintiff’s claim wa...
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Opinion by Both specifications are of the most general character. The first complains of the decree dismissing plaintiff’s bill. The second charges error in,not granting the relief prayed for, viz., a decree restraining the defendants, managers of “ The A. French Spring Co., Limited,” from any further appropriation of said company’s money to the payment of the notes given for purchase of the inter...
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Opinion by This was an action of trespass by the owner of the servient tenement against the owner of the dominant, to recover damages for collecting all the waters which would pass from the dominant to the servient, to one spot, by artificial underdrains, and discharging them there. Upon the trial below, the court was requested by the plaintiff’s second and fifth points, to instruct the jury that ...
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Opinion by The court of quarter sessions made a decree dividing the borough of Lansford into three wards and this court confirmed the decree : Lansford Borough, 141 Pa. 134. It is now claimed, and the learned judge below felt constrained to hold, that a single dissatisfied taxpayer, by a certiorari without allocatur or special order of supersedeas could defeat the effect of the decree, postpone th...
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Opinion by The cause of this unfortunate accident is too plain for dispute, the attention of the deceased was fixed upon the coal train on *358the further track, and just as soon, or even before it had completely passed she started to cross the nearer track, and either stood or walked near enough to be struck by the south-bound train. The case for the plaintiff rests mainly on the testimony of La...
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Opinion by This action, to recover fees alleged to have been earned by plaintiff, is founded on the following contract signed by defendant : “ Landenberg, Pa., .1882. I here guarantee that .myself, claimant for additional pay as postmaster (at Chandlersville, Landenberg), shall, without delay, upon the receipt of draft for amount which may be collected, remit the amount of fee due his attorney, H...
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Opinion by The single question arising upon the facts embodied in this case stated is whether the lien of appellees’ coal lease mortgage of September 14, 1885, for 132,773.86, was divested by the sheriff’s sale of said lease in July, 1890, on appellants’ and other executions. If the lien of said mortgage was then divested, it is conceded that appellees are entitled to the surplus proceeds of sale,...
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This case is so fully covered by the opinion of the learned judge of the court below that we affirm the judgment for the reasons there given by him. Judgment affirmed....
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We think the learned judge below was right in entering judgment in favor of the defendant. The main question in the ease is as to the legal effect of the re-survey in 1860. This might have been a serious question if, in the meantime, an adverse title, either legal or equitable, had attached itself to the land described in the location by reason of Ives’ first election. This, however, was not the c...
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We are of opinion that the statute of frauds has no application to this case. The plaintiff and the defendant were partners, engaged in the single transaction of procuring options for coal lands, and reselling them at a profit. The profits were to be divided between them. It was held in Benjamin v. Zell, 100 Pa. 33, that an interest in contingent profits, arising from a sale of real estate, to be ...
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We are of opinion that the nonsuit was properly entered. The title to the real estate in question was in Alice E. Harvey, *320and there was nothing upon the face of it to show that Anderson Harvey, her husband, had any interest therein. The judgment and execution against the husband did not appear in the line of title. As Mrs. Harvey acquired the' property from a stranger, and not from or through ...
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The contributory negligence of the plaintiff so clearly appeared that we do not think it was error in the learned judge below to enter a compulsory nonsuit, and to refuse to take it off. The plaintiff was injured while engaged in the repair of a car of the defendant company. The car was standing upon a side track, where similar repairs were constantly being made. At the time he received the injury...
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Opinion by The subject of complaint in the first specification is the admission of the leading question, therein recited, that was put by the plaintiff to his own witness. As a general rule neither party has a right to treat his own witness as hostile, and proceed either to cross-examine him or to call other witnesses to contradict him, without first showing sufficient cause for so doing. The rule...
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Shortly after the will of one Bridget Smith had been admitted to probate, Bryan J. Smith, a son of the deceased, of full age and of average mental capacity, who was appointed executor by the will, appeared before the probate court and offered to accept said trust, to qualify as such executor and to give bond as required by law. The court of probate found that he was not a fit person to execute the...
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On the 5th of January, 1885, the court of probate for the district of Stafford passed a decree allowing, approving and accepting the account of Benjamin Rockwell, as administrator of the estate of Eunice C. Rockwell, deceased. John P. Orcutt, an heir at law of the deceased, residing in Iowa at that date, was not present when the decree was passed, nor had he legal notice to be present, and as the ...
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The court below committed no error in holding that the contract between the plaintiff and the defendant was not a lease. The most that can be claimed for it is, that it gave an option *258to B. D. Benson, defendant’s intestate, to mine iron ore on the plaintiff’s property in the townships and counties named in the contract. It does not contain the usual terms and appropriate words of a lease. On t...
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Opinion by The evidence submitted to the jury was quite sufficient to warrant them in finding that the negligence of those engaged in digging the ditch, etc., on Arch street, was the sole cause of the injury suffered by the beneficial plaintiff in September, 1888. By necessary implication, the verdict in her favor was predicated of that finding of fact. In view of all the circumstances disclosed b...
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Opinion by When the early judges of Pennsylvania took the most brilliant and important step in the history of modern jurisprudence, and held, a century in advance of England and our sister states, not only that equity was part of the common law of Pennsylvania but also that it might be administered by the common law tribunals under common law forms, they might well have supposed that the conflict ...
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We do not think it was error to exclude the testimony referred to in the first specification. It is sufficient to say that it was irrelevant. Nor do we see error in that portion of the charge of the learned judge below embraced in the second specification. If the defendant agreed, as the plaintiffs alleged, that, in case they would subscribe for the stock in question, and if they did not want it, ...
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Opinion by This was a writ of foreign attachment brought by the plaintiff in the court below against Samuel W. Miller Peters, defendant, in which the Guarantee Trust and Safe Deposit Co., assignee, under deed of voluntary assignment of Robert Hare Powel’s Sons & Co., for the benefit of their creditors, was made garnishee. It appears that Peters, the defendant, conducted a store at Sax-ton, Bedfor...
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After a full hearing at October sessions, 1890, the court below ordered the appellant to pay his wife, Phcebe Baldwin, the sum of four dollars per week for the support of herself and her and his infant child, to pay the costs, and to give bond in the sum of sis hundred dollars to comply with said order, and that he stand committed until the order be complied with. The appellant at once surrendered...
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J udgment affirmed....
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The fifth paragraph of the will of John Snider provides that: “ All notes or other evidences of indebtedness, which may be *363held by me at the time of my death, against any of my children or sons-in-law, shall be treated by my executors as advancements, and deducted from the shares of the respective beneficiaries under this my will.” This action was brought in the court below by the executor of ...
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Opinion by This was an attachment execution in the court below. A suit had been commenced by James L. Shaw in 1882, against the Pittsburgh & Connellsville R. R. Co., and in this suit one A. 0. Tinstman was made a use plaintiff on Oct. 2, 1885. A judgment was recovered therein, of which the share of Tinstman amounted to $947.48, which is the sum in controversy. Tinstman became indebted to Alpheus ...
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Opinion by We think the evidence submitted in this case was not sufficient to justify a finding that Hale and Morrow agreed to buy Corser’s stock in the Vermillion Land and Iron Co. It shows that on Feb. 20,1888, Morrow offered to buy this stock at three dollars per share; that Corser did not then accept it, and that Morrow said, “ I will leave this offer open; that on Feb. 22, 1888, Corser wrote...
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Opinion by It is not necessary to consider now whether Augustus Boyd was incompetent under clause (e) of § 5 of the act of May 23, 1887, to testify to matters occurring in the lifetime of George *372Bullock, for if he was, his incompetency was removed by the action of the appellant company in calling him, under § 7 of that act, to testify to such matters. When he was first called 'as a witness in ...
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Opinion by A judgment entered for want of an appearance in a suit commenced by a writ of foreign attachment, under the act of June 13, 1836, P. L. 680, binds only the property attached, and the process for the collection of it does not extend to other prop-r erty of the defendant. In the case before us the attachment was levied upon a certain lot situate on the south side of Dickinson street, in P...
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Opinion by In her petition for leave to intervene and defend pro inter esse sua, Mrs. Lawall avers she is the wife of Charles A. Lawall, defendant in this action, and claims joint ownership of the goods replevied; that, when the writ was executed, she had exclusive possession of the goods, and claimed title thereto; that, to the best of her information and belief, her husband has willfully and mal...
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We find nothing to criticise, either in the rulings of the court below upon questions of evidence, or in the charge to the jury. *408The title of the plaintiff to the land in question was sold by the sheriff in 1878. He now claims that he was not the owner in fee at the time of the sheriff’s sale, but that there was a resulting trust in favor of his wife, the effect of which was to leave him but a...
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The small amount of law contained in the defendants’ 3d point was so interwoven with questions of fact that the learned judge below could not have affirmed it without infringing upon the province of the jury. If we treat the defendants’ 7th point as an abstract proposition of law, and assume the facts therein to be correct, it might safely have been affirmed. Unfortunately for the point, it does n...
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We are of opinion that substantial justice has been reached in this case, and in the proper way. - It is very evident that the alleged will was not the will of Moses Reynolds, the testator. It was prepared by the scrivener by the direction of John Swails, one of the two beneficiaries named in the will. The scrivener and the testator were not brought together. The testator therefore cannot be said ...
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J udgment affirmed. See Cutler & Hinds v. Richley, Appellant, 151 Pa. 195....
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This case has been so well discussed by the learned judge of the court below that nothing remains to be added. J udgment affirmed....
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Opinion by Before the note in suit was offered in evidence, one of the plaintiffs, William Hartley, was examined as a witness on behalf of the plaintiffs, and testified to the circumstances in which the note was received and discounted. He said when the note was brought to them it “ was drawn for four months, *27■with James Corboy as indorser.” He further said that they concluded they would not a...
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These are appeals from the same decree. The questions involved have been so fully considered by the learned judge below and the auditor, that their discussion here is unnecessary. The, decree is affirmed, and the appeals dismissed, at the costs of the respective appellants....
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We think the learned judge below was right in entering judgment upon the reserved points in favor of the defendants. *297There was nothing upon the record of the justice of the peace to show that the plaintiff was a married woman at the time the judgment against her was rendered. She did not appeal from that judgment, and, after the time limited for an appeal, the plaintiff in that suit issued an ...
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The first specification alleges that the court erred in the admission of certain testimony of the defendant in regard to the nature of the contract between the parties. The contract was not in writing, and could only be proved by oral testimony. The plaintiff had testified that he had agreed to drill the well for the defendant for fifty cents a foot, and that he was to have an interest in the well...
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Judgment affirmed....
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There are twelve specifications of error in this case, all of which relate to the charge of the court and answers to points. A careful examination of them fails to disclose substantial error. The defendant company had a right to make reasonable regulations in regard to the use of its station. It had a right to order that hacks should not stand in front of the entrance, and the plaintiff having wil...
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This was a case for the jury, and we do not find any error in the. manner of its submission. A discussion of the rulings of the court below is unnecessary. Judgment affirmed....
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We need not discuss the question whether the court below had power to reconsider the case and enter a different judgment after the service of the certiorari, for the reason that, upon the argument at bar, it was understood and agreed that the case should be heard here upon its merits. *323We are of opinion that the final judgment of the court was properly entered, and we affirm it for the reasons ...
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We think the plaintiff was properly nonsuited in the court below. His contention was that his property was endangered, and its market value greatly depreciated by a change in the location of the abutments of a bridge, which the borough had rebuilt; that by reason of this change the water of the stream was diverted from its course, and thrown against his house and across his lot. The evidence does ...
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There was no final judgment in this case. The order of the court below was: “ Stated case is quashed, and new trial granted.” We are of opinion that the-case stated was properly quashed, for the reason that it failed to disclose facts necessary to an intelligent judgment. It ought to be understood that the court cannot go outside of the case stated for its facts, nor can it assume them by way of i...
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Opinion by Where there is a sale upon trial, with a time fixed by the parties, a failure to return the goods or give notice in accordance with the agreement makes the sale absolute: Dewey v. Borough of Erie, 14 Pa. 211; Hickman v. Shimp, 109 Pa. 16; Stutz v. Coal Co., 131 Pa. 267; Benj. on Sales, § 595. This was the effect of the contract between the parties to this controversy. A period was fixe...
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Opinion by Teadesman’s Bank’s Appeal. An examination of the learned auditor’s report in connection with the evidence upon which it was based, has failed to convince us that there is any error in his findings recited in the first and third specifications, respectively, or in his “ not finding that the board of directors of the Reading Iron Works never authorized or ratified the giving of a judgmen...
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The only specification of error is, that the court below erred in not making absolute the rule to show cause why the decree awarding the real estate to Eliza J. Craft should not be set aside. The real estate was awarded to her by the orphans’ court on March 5, 1890, and on the following day her sureties were approved, and recognizance taken and acknowledged in open court. The petition of John W. O...
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A careful examination of this case fails to disclose error on the part of the learned judge below, and we affirm the decree for the reasons given by him. The decree is affirmed, and the appeal dismissed at the cost of the appellant....
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J udgment affirmed....
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delivered the opinion of the Court. The appellant brought an action on the case against the appellees in the Superior Court of Baltimore City, alleging in its narr. that it is a body corporate for social and beneficial purposes, and that the appellees wilfully and maliciously, and without probable cause, instituted a suit for its dissolution in the Circuit Court, Ho. 2, of Baltimore City. The narr...
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delivered the opiuio.n of the Court. . A special case was stated in the Circuit Court, No. 2, of Baltimore City. The facts, so far as they are material to the present purpose, are as follows: .James W. Hewlett insured his life for the sum of twenty-seven hundred and four dollars, payable at his death to J. W. Guest, as trustee for Mary A. Hewlett, Sarah E. Hewlett and Alice Hewlett, daughters of t...
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delivered the opinion of the Court. Hewes and wife brought an action against the Philadelphia, Wilmington and Baltimore Railroad Company. The evidence for the plaintiffs tended to show that the female plaintiff was a passenger in the defendant’s cars to be carried from Perryville to Havre de Grace; that she took passage on the train, which by the schedule was due at Perryville at 7.50 o’clock P. M...
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delivered the opinion of the Court. The bill in this case was filed by the appellee against the appellant to obtain an injunction to restrain the latter from proceeding to cut a ditch through his meadow, to divert a stream of water from its natural and original course, whereby, as it is alleged, the plaintiffs mill-dam and water-power below would be greatly affected and irreparably damaged. *42The...
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At a former term this case cases before us on a special finding of the facts by the trial court, with a judgment rendered upon those facts in favor of the defendant. The plaintiff appealed to this court on the ground that the trial court erred in applying the law to the facts so found. This court held that there was error in the judgment appealed from, "and that a new trial should be granted, at w...
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The plaintiffs made application to the county commissioners of Litchfield County, alleging that a certain highway in the town of Thomaston was out of re pair and unsafe for public travel and praying that the selectmen of that town be ordered to make suitable repairs on the same. The county commissioners after a hearing made an order that the selectmen of the town remove all obstructions to public ...
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Opinion by We have carefully examined the thirty-three specifications of error in this case, and find nothing in any of them to justify us in reversing this judgment. The suit below was a writ of replevin for a quantity of square timber, which the plaintiffs alleged had been cut upon their property without authority. By way of defence the defendants set up an equitable title based upon an alleged ...
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Judgment affirmed....
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Opinion by . The specifications of error in this case are founded upon the answers to the points submitted by the parties. The first and most material question raised by them is, whether the agreement on December 30, 1887, between the Fidelity Title & Trust Co., as trustee of the Patterson property, and the Peoples Natural Gas Co. appellant, is a bar to this action. In Ins. Co. of North America v...
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This was a question of subrogation. The printed evidence occupies over 200 pages, and there are 23 specifications of error. A careful and somwhat painful examination of the case fails to show that the discretion of the court below was not properly exercised. The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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A careful examination of this case has not convinced us that the court below committed error. We do not think it necessary to discuss it. Judgment affirmed....
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This case was submitted upon the paper books. There was nothing in it to base an argument upon. The judgment in question was regularly entered, and the motion to open it was without merit. Judgment affirmed....
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Opinion by This is a very close case. The appellant does not allege, as the case is presented to us, that the plaintiff’s husband lost his life because of his own want of care. The contention of the defendant is that the evidence shows no negligence on the part of the company or its employees. It concedes with entire fairness that if the evidence was sufficient to justify the submission of the que...
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Opinion by It was the expectation of the remainder-man and the life tenant that the estate would yield an annual income of not less, and probably more than $2,000, and the agreement of March 14, 1888, by which that amount of the principal was to be paid to the life tenant, and to be returned to the estate from the annual income in excess of $2,000, was obviously founded upon it. Under this agreeme...
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The first and second specifications were not pressed upon the argument at bar. The remaining specifications involve the proper construction of 'the deed of Arthur Tanner to Sally Brasington. The learned judge below held, and we think properly, that this deed vested in Sally Brasington, and her four sons named therein, the immediate right to the possession and enjoyment of the lots in controversy, ...
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Opinion by The petition is, by its express terms, based on the Act of May 25, 1887, P. L. 270. That Act authorizes the court to direct the issue of a scire facias by the holder of a mortgage upon petition of the mortgagor or his legal representative, or the owner of the mortgaged premises. It is in this last capac-1 ity that the petitioners claim. The mortgagor Avas Powel, and his title to the la...
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Opinion by The claim of the appellant is that by his agreement with Chas. Baeder under date of Sept. 24, 1879, he was entitled to receive *22the three per cent of profits mentioned therein until the dissolution of the partnership of Baeder, Adamson & Co., and that it was not dissolved by the death of Charles Baeder. In answer to this claim, the appellee contends (1) that the death of Baeder disso...
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Opinion by The defendant Quinn’s name did not appear in any way upon the note in suit, and it was therefore incumbent on plaintiff to show affirmatively Quinn’s connection with it. The only way in which this was done was by naming Quinn as one of the defendants, and calling them copartners in the caption of the statement. The statement itself contained no averment of the partnership or of Quinn’s ...
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Whether a partnership firm, being in law an entity distinct from the members that compose it, and, like a corporation, having no soul, can discover or invent anything, in the sense discussed by the learned master, is a metaphysical subtlety over which we need spend no time. As a practical question in the administration of the law, a firm may as well be said to invent a machine as to invent a new e...
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Opinion by The appellant had been for many years the principal of the State Normal School of the 12th District of Pennsylvania, located at Edinboro in the county of Erie. On July 3, 1891, he was regularly re-elected by the trustees to the same position. When the work of the school year began he was in his place discharging the duties devolving on him as principal without objection. On Feb. 5, 1892...
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Opinion by If the unfortunate boy, for-the loss of whose services the *642father seeks compensation in this suit, had escaped death, and were here asking indemnity for injuries received while in the service of the defendant, it might be a question whether the employer did not owe him the duty of exercising such watchfulness and oversight, or at least giving such instruction and admonition as woul...
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The decree is affirmed, and the appeal dismissed at the costs of the appellants....
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Opinion by The agreement, between the parties gave, in its first clause, a lease to the defendant of the property in question for the definite term of five years from Sept. 1, 1885, at a stipulated rent. The second clause is in the following words, viz.: “ The party of the second part to have the privilege of an extension of said term of five years for a further period of five years from the expi...
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Opinion by The defendants are brewers in the city of Easton. In February, 1890, they bought from the New Process Ice and Refrigerating Co. a refrigerating machine for use in their business. In the following June they gave in part payment for the machine their negotiable note for fifteen hundred dollars, payable at the First National Bank of Easton at ninety days. The company transferred this note,...
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Opinion by After a very patient and attentive reading of all the testimony in this case relating to the material points of contention, and upon a full consideration of the able argument of the learned counsel for the appellant, we are of the opinion that the findings of fact and conclusions of law contained in the master’s report are correct. The findings of fact, having been confirmed by the decr...
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The opinion of the court was delivered by The return to this writ of certiorari brings ■up the record of the Court of Common Pleas of the county of Gloucester in two separate proceedings under the Eoad act, one taken to vacate a public road and the other to lay a public road in said county. The proofs taken under this writ show •that the proceeding to vacate and the proceeding to lay have referen...
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*485The opinion of the court was delivered This writ brings up two ordinances of the Long Branch commissioners. The first in point of time was passed July 7th, 1890, and was entitled “An ordinance determining and establishing the grade on Washington Street.” This ordinance must stand upon section 61 of the amended charter of the Long Branch commissioners, which gave to the board of commissioners a...
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The opinion of the court was delivered by This suit is upon contract, and the declaration-is in form a count in debt, setting out the act of the legislature-authorizing the issuing of such certificate and its non-payment,. and concluding, “ By means whereof and by force of the said statute, an action hath accrued to the plaintiff to demand, &c.,. of the said The Inhabitants of the Township of Uni...
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*487The opinion of the court was delivered by The defendant Dorothea Stoepel made her application at the October Term of the Camden Pleas for a license to keep an inn and tavern. A remonstrance was filed by the prosecutors of this writ, and upon October 27th the court refused to grant a license. On the same day a motion was made on behalf of the defendant to open the application, and on October 31...
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The opinion of the court was delivered by An act of the legislature, approved March 2d, 1891 (Pamph. L., p. 64), reads as follows: “ Be it enacted, &c., That the judges of all district courts in cities of this state now in office shall continue in office until the first day of April, one thousand eight hundred and ninety-one, on which day their term of office shall end; the successors of the judg...
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The opinion of the court was delivered by This was a suit brought in the Circuit "Court of the county of Warren, and it was there tried, and a verdict rendered for the plaintiff. Thereupon a *410rule to show cause why a new trial should not be granted was entered, and the motion having been heard upon the case made at the trial, and upon certain supplementary testimony, a new trial was refused. Th...
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delivered the opinion of the Court. This is an action for alleged deceit in the sale of certain shares of stock in a fertilizer company, in the City of Baltimore. The action was brought by the present appellant against the defendants, who were stockholders and officers managing the affairs of the corp'oration that issued the shares that were sold to the plaintiff. The declaration contains two coun...
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delivered the opinion of the Court. The facts of this case are as follows: Thomas J. Flack died in 1871 seized and possessed of the reversions in fee of several lots of ground in the City of Baltimore, out of' which rents issued amounting, in the aggregate, to three hundred dollars and fifty cents annually. His heirs-at-law consisted of two sons, a daughter, and some grandchildren, the children of...
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delivered the opinion of the Court. Daniel B. Banks died in 1875, leaving a last will and testament, whereby he devised portions of his estate, including one-third of the residuum, to Andrew Banks, in trust to collect the income thereof, and after defraying proper charges, to pay the net income to the testator’s daughter, Margaret W. Dorsey, during her life. He further devised the corpus of this t...
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delivered the opinion of the Court. John Gregg of the City of Baltimore died in February, 1890, having first made his last will and testament. Among other bequests and devises, he made the follow*172ing: “I, in the first place, devise and bequeath one-half part of all my worldly estate, (one-half part of all my property, real, personal and mixed) unto my brother, James Gregg, my nephew, Maurice Gr...
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delivered the opinion of the Court. There was some conflict of evidence in this case. According to the testimony for the plaintiff below (who is now appellee,) he through his agents, Alden and Nevin, contracted to sell and deliver to the defendant (who is now appellant) five thousand tons of coal to be delivered free on board the defendant’s vessel at Baltimore. The contract was as follows: “Order...
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delivered the opinion of the Court. This appeal is from the Orphans’ Court of Baltimore City, and the question is, whether the surviving husband of a deceased wife, who died intestate and without children or descendants, and owing no debts, is required to obtain letters of administration upon the estate of his deceased wife, to enable him to collect a chose in action due the wife at the time of he...
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delivered the opinion of the Court. We cannot agree with the Court below that the plaintiff is entitled to a specific performance of the contract set out in the bill. The contract is dated 15th J une, 1888, and reads as-follows: *231‘‘I have this day agreed to and have sold to Mr. W. W. McCullough eighty feet of land in width, running parallel with our division line from railroad to Bunker Hill ro...
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Writ of entry to recover possession of Round Porcupine Island situated in Frenchman’s Bay. The plea admits the defendants to be in possession of the whole Island, claiming a freehold therein. Upon this primafacie evidence of title the defendants may confidently rely until the plaintiffs shall affirmatively showthat possession to be wrongful as against themselves. The case is before the court on a ...
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This is a real action, to recover possession of certain flats between high and low water mark of the sea, at Bar Harbor. The plaintiff claims under a deed containing the following description : "Beginning at the sea, on Benjamin Ash’s line; thence south on said Ash’s line to the highway ; thence •west on the highway ten rods to a stake ; thence north to the shore parallel with said Ash’s line; the...
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Action on the case to recover damages for a personal injury caused by the plaintiff’s being thrown from his load of hay while attempting to pass another team, by reason of the alleged narrowness of the way. No action lies at common law for an injury caused by a defective way. Our first legislature provided a statutory remedy giving " double damages ” to one thus injured in his person or property, ...
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The plaintiffs had a right of way across the defendant’s railroad. In 1881 the defendant obstructed it *36by digging four cellars and placing houses upon them, and in 1888 disturbed it at another point by making excavations for the purpose of laying a spur track to a gravel pit. November 30, 1889, the .plaintiffs commenced these actions for damages. '.The evidence relating to both cases is present...
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The opinion of the court was delivered by This is an action upon a Mechanics’ Lieu claim. Friedlander, the owner, made a contract with Jeroleman & Craft for the erection of a building on his lands in Passaic county, which contract was dated September 6th, 1890, and filed September 9th, 1890. The contract contained no stipulation for the production and delivery by the contractor to the owner of re...
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The opinion of the court was delivered by The plaintiff complains that the defendant, by certain tortious acts, has caused the waters of the Hackensack river to be discharged upon her meadow land. We think it is obvious that the first count demurred to does not State facts from which the court can see that the plaintiff has the cause of action alleged. The allegations and statements are, that the...
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The opinion of the court was delivered by On the 3d day of February, 1891, George W. Bateman, overseer of the poor of Raritan township, Hunter-don county, made application to a justice of the peace of that county to have Alice M. Buck, a poor person, witli two infant children, aged respectively one and three years, within said township, and who had applied to the overseer for relief, brought befor...
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The opinion of the court was delivered by An assessment for taxes, for the year 1891, •was levied by the assessor of Raritan township, Iiunderdon •county, upon shares of the capital stock of the Pennsylvania, the Lehigh Valley and the Philadelphia and Reading Railroad Companies, owned by the prosecutor. This writ of certiorari is brought to restrain the defendant, ■as collector of the township, fr...
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*441The opinion of the court was delivered by The objections made against the tax now in question all rest upon the assumption that it is inconsistent with the exemption granted in the sixth section of the company’s charter above recited. We must, therefore, first consider whether such assumption can be maintained. The brief of counsel for the prosecutor concedes that the tax is a franchise tax. T...
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The opinion of the court was delivered by It was held in the case of the State, Story v. The City of Bayonne, 6 Vroom 335, that the grading of á street, under the charter of the city of Bayonne, can only be done by ordinance. It was held in that case that a resolution directing the-street commissioner to remove earth along the Bergen road, and to have said road graded, was invalid. In the case of ...
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delivered the opinion of the Court. This is an action to- recover damages for the refusal by the defendant’s agent, to allow the plaintiff to pass through the gate to the train, then about to leave the Calvert Station. The plaintiff, a lime burner by trade, bought of the defendant’s agent around trip‘ticket from Texas Station to Baltimore, good for two days and paid therefor sixty-*215eight cents....
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delivered the opinioh of the Court. Mrs. Roberta T. Brooke, a widow, died in 1881 leaving a will duly executed, devising certain real estate in Baltimore County to trustees, “in trust and with authority to sell and convey the same, as soon .as the price or sum of two hundred dollars per acre can be obtained therefor, or as soon thereafter, not exceeding one year, as, in the' judgment of such trust...
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delivered the opinion of the Court. We did not call upon the appellee, for it seemed very clear to us that the affidavit annexed to the pleas filed in this case was not in compliance with either the letter or the spirit of the Act of 1886, chap. 184. Now, this Act provides that in suits upon contract the plaintiff, upon malting affidavit as therein required, shall he entitled to judgment “at any t...
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delivered the opinion of the Court. Andrew Callahan of Queen Anne’s County, in this State, made his will on the last day of May, 1810, and the same was admitted to probate on the 14th of June of the same year. By the fifth clause of his will he devised as follows: “I give, devise and bequeath to my daughter, Anna Laura and to her heirs, all my real estate in Queen Anne’s County, subject to her mot...
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delivered the opinion of the Court. The bill in this case was filed by the executors and trustees under the will of the late Lambert Gittings against the Johns Hopkins University, to obtain a decree for the specific performance of a contract of sale and purchase of two adjoining warehouses, in the City of Baltimore, sold by the trustees to the University, as part of the undivided estate of Lambert...
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This action is for damages alleged to have been caused by what the plaintiff calls the defendant’s negligence in not properly guarding an opening he had made in a sidewalk upon Main street in Waterville. The plaintiff, therefore, must establish by evidence two propositions at least. (1,) The negligence of the defendants. (2,) Due care upon his own part. 1. The evidence clearly shows the following ...
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This is a bill in equity for the construction of the will of Kobert Thompson, deceased. The clauses of the will involved in the contention are as follows : "Item 1st. I give and bequeath to my daughter, Kate A. Morrell, ten thousand dollars or her heirs forever. "Item 2nd. I give and bequeath to my daughter, Abbie C. Eich, ten thousand dollars or her heirs forever. "Item 3rd. And as I have given m...
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When a party asks for a new trial on the ground of newly discovered evidence, the burden is upon him* to satisfy the court that the evidence is credible, and that its non-production at the former trial was not owing to a want off diligence on his part. Woodis v. Jordan, 62 Maine, 490. And on motion for a new trial on the ground of a newly discovered witness, who will testify to important facts, ev...
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The town of Eden, in its petition for a writ of certiorari, assigns three reasons wdry the writ should be granted. 1. "Because said county commissioners awarded damages to said Roberts, having no jurisdiction over the question of damages and no authority by law to act thereon. 2. "Because said commissioners did not act upon said petition of the said Tobias L. Roberts as is provided in § 19, c. 18,...
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The defendant petitions for a new trial on several grounds, of which three only were urged at the hearing, viz.: first, that the verdict was against the evidence; second, that the court erred in its instructions to the jury; third, that the jury were influenced in their decision by a communication to them by the officer in charge of them. We think the evidence was sufficient to warrant the jury in...
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This is an action of assumpsit brought to recover compensation for board, maintenance, care, and nursing for 390 weeks, from April 1, 1881, to October 1, 1888, at $5 per week, $1,950. The declaration contains the common counts inindebitatus assumpsit for goods sold and delivered, work and labor, money had and received, and for interest. The jury returned a verdict for the plaintiff and assessed hi...
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The plaintiff, in the District Court, obtained judgment by default against the defendant, as executrix of the will of Albert A. Pierce, late of Providence. Execution issued, upon which the officer made return, under Pub. Stat. R.I. cap. 189, § 10,1 that he could find no estate whereon to levy the same, and thereupon, pursuant to the same section, he brought this writ ofscire facias, with a suggest...
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Whether the relations between copartners with reference to their ownership of the partnership assets is more analogous to a tenancy in common or to a joint tenancy, we need not decide. In either case, a sole surviv *680 ing partner is entitled at law to the possession of the assets of the firm until its affairs are settled, as well against the representatives of the deceased, to wh...
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The plaintiff seeks in this action to recover damages for an illegal expulsion from membership in the defendant corporation. The declaration sets out that the corporation is a benevolent organization, of the kind now generally known as a mutual benefit society, having a relief fund for the benefit of its sick members; that the plaintiff was a member in good standing, and had performed all his duti...
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This is an action for trespass on the case, to recover damages for the negligence of the defendant corporation in allowing a certain trap-door in the landing of a stairway on the premises occupied in part by the defendant, which said trap-door was used by and under the sole control of the said defendant, to remain open and unguarded, whereby and by reason whereof the plaintiff, while using said st...
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The defendant petitions for a new trial on the following grounds, viz., first, because of erroneous rulings, by the court below, in matters of law; second, because the verdict was against the evidence, and the weight thereof; third, because of newly discovered evidence; and fourth, because the defendant did not have a full, fair, and impartial trial. The indictment, omitting the formal part thereo...
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The opinion of the court was delivered by Plaintiffs first contend that the defendant municipality possesses no power to pass an ordinance to lay cut and open streets. Whatever power it possesses has been conferred by the “Act to reorganize the local government of the township of West Hoboken,” approved March 27th, 1874 (Pamph. L.,p. 594), and a supplement to that act, approved April 9th, 1875. P...
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The opinion of the court was delivered by The relator applies for a writ of mandamus ■directing the authorities of the city of Trenton to designate “The New Jersey Staats Journal” as an official newspaper of 'the city in accordance with a supplement to “An act concerning official newspapers in cities of this state,” approved April 11th, 1889. Pamph. L.,p. 260. The city opposes the application upo...
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The opinion of the court was delivered by The prosecutor was incorporated September-2d, 1890. After its incorporation it acquired title to about five and one-half acres of land, and erected thereon a school-building, the entire cost being about $15,000. The school was kept and managed by W. Wilberforce Smith, under an agreement between him and the corporation, which provided that Smith should, fo...
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The opinion of the court was delivered by The certiorari in this cause has brought here proceedings taken against prosecutor under the sixth section of the “Act cosicerning disorderly persons,” approved April 9th, 1875. Rev., p. 303. By the provisions of that section, persons who commit certain offences therein specified are declared to be disorderly; they may be apprehended in the manner afterwar...
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The opinion of the court was delivered by The resolution brought up by this writ is an. approval of an agreement into which the borough had previously entered with said Miller. By the terms of this agreement Miller was to build up Brigantine avenue to the-established grade with sand and gravel, beginning at the railroad tracks, to such place as might thereafter be agreed upon. Miller was to receiv...
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The opinion of the court was delivered by Smith Deremer was a fireman in the employ of the railroad company, and he was killed by accident while assisting in running a train. The suit is by his administratrix, under the statute for the pecuniary damage to his family in consequence of his death. There are three counts in the declaration, and the counsel of the defendant conceiving that none of the...
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The opinion of the court was delivered by The attack of prosecutors should be confined ' to the part of the proceedings respecting the vacation of the public road in question, which have not heretofore been, adjudicated upon in this court. Their objections are, therefore, applicable to an order of the-Common Pleas of Gloucester county, made February 25th-1891, which, after reciting a previous orde...
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*519The opinion of the court was delivered by The case exhibits no evidence of negligence on the part of defendant, either in the selection of the driver or the use of the horses employed at the time of the occurrence in question. If the defendant was shown to be liable at all, it must have been in respect to some negligence of the driver at that time. On this subject there was much conflict of te...
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The opinion of the court was delivered by Prosecutrix attacks the order brought before •us by this writ upon the ground that the members of the township committee were without jurisdiction to make it. Her *500contention ■ is that the defendant Riegel is bound by law to make and perpetually maintain a fence along the whole of the line in question, dividing his lands from hers, and that, consequent...
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The opinion of the court was delivered by Six writs of certiorari have been sued out by the prosecutors, bringing up for review certain assessments for the construction of a brick sewer in the city of Bayonne. To these writs two returns have been made, one embracing five assessments made by the same set of commissioners, the other bringing up a single assessment made by a different set of commissi...
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*412The opinion of the court was delivered by The plaintiff, while in the service of the defendant company, was called upon to ascend one of the poles of the company for the purpose of trimming a lamp at its top. One of the steps used for climbing the pole was broken off. The plaintiff, before he attempted to go up the pole, saw the •defect. He ascended the pole safely, but in descending his foot...
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The opinion of the court was delivered by Section 63 of the new Election act reads as follows : “ No voter shall knowingly vote, or offer to vote, any ballot except an official ballot enclosed and sealed in an official envelope, as by this act required. Any person violating this provision shall incur a penalty of $25' for each and every offence, to be recovered by an action of tort" before any co...
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The opinion of the court was delivered by The contest in this case is over the validity of an ordinance and a resolution of the common council of the city of Plainfield, both adopted August 21st, 1891, *527By the first section of the ordinance the consent of the corporate authorities of the city is given to the formation of an incorporated company for the purpose of constructing, maintaining and o...
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The opinion of the court was delivered by This writ has brought before us an “ Ordinance to provide for sewerage in the city of Plainfield,” passed by the common council of that city, over the objections of the mayor, on November 2d, 1891. This ordinance, among other things, gave the consent of the corporate authorities of the city to Joseph M. Low and six others, his associates, to associate them...
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The opinion of the court was delivered by The questions involved by the returns to each •of thése writs are identical. They were argued and will be •decided as one. *463The material reasons assigned for a reversal of the action of the common council are two. First, that no power existed in the common council to vacate this street; second, that if that body had such power, such power could not be ...
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The opinion of the court was delivered by The defendant was an original subscriber to the capital stock of the Fidelity Trust and Safe Deposit Company for ten shares of the par value of $100 each, on which only ten per cent, of the subscription price has been paid. The by-laws of the said company provide that “ transfers of stock shall be made only on the books of the company. That no transfer sha...
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The opinion of the court was delivered by This writ is directed to the state board of assessors to review an assessment of taxes, made against the prosecutor, in the years 1889 and 1890, under the act entitled “An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof,” approved April 18th, 1884. Rev. Sup., p. 1016. The return to the writ shows ...
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Opinion by The decision of this case has been delayed for reasons not personal to the writer. ‘ The suit was brought by the plaintiff in the court below against the defendant to recover damages for debauching his (the plaintiff’s) wife. The jury found for the plaintiff in the sum of $2,000, which the court subsequently reduced to $500, and the verdict thus reduced was accepted by the plaintiff. Th...
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Opinion by The contention in this case arises upon the following clause of the will of Eveline Gross, deceased: “ I hereby bequeath and devise to my said adopted daughter, Mathilda Gross MacConnell, all the rest and residue of my estate, real, personal and mixed, absolutely and in fee simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or...
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On the 15th day of May, 1890, the defendant was the owner of a certain saloon in the city of Bridgeport which prior to that time he had been conducting. He desired to sell out his stock, furniture and business, and engaged the plaintiff as a broker “to procure a purchaser therefor—to effect a sale,”—upon the agreement that he should receive a commission equal to five per cent of the purchase mone...
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This is an action to recover money claimed to be due on book account. It was brought originally in the District Court of the First Judicial District, and was taken by appeal to the Court of Common Pleas. It was tried in the latter court, jury trial being waived, upon an agreed statement of facts, under a plea of the general issue, and an agreement that the defendant might under that plea offer any...
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To this indictment a general demurrer was filed and joined. Thereupon judgment was rendered overruling the demurrer, and to this ruling exceptions were taken. The indictment is founded upon the provisions of chapter 139, laws of 1887, entitled "An act to regulate the hours of labor and the employment of women and children in manufacturing and mechanical establishments.” The act, in addition to oth...
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The complainant, trustee under the will of Mary M. Bourne, late of Newport, deceased, brings this bill, practically a bill for instructions, for the distribution of the trust fund, and the case is submitted on bill, answer, and proofs. The will was dated September 30, 1879, and admitted to probate in Newport, January 16, 1882. The testatrix bequeathed one sixth of her residuary estate to the compl...
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The plaintiff in 1857 transferred to Daniel Phillips, in trust for the use of Mary Ann Garland for life, or until she should marry, ten shares of the stock of the Adams Express Company, a joint stock association organized under the laws of the state of New York, by an instrument in writing, as follows: "Know all men by these presents that I, Clapp Spooner, of the city of Bridgeport, in Fairfield C...
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delivered the opinion of the Court. On the nineteenth day of December, eighteen hundred and sixty-seven, William E. McCann and wife executed a mortgage to Olivia Street for a thousand dollars, payable in three years, with interest, payable annually. By a series of assignments which are set out in the hill, the complainant became the owner of the mortgage, and, the same being overdue, filed his hil...
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delivered the opinion of the Court. This is an action of assumpsit brought by the appellants against the appellee for goods sold and delivered. The na.rr. contains only the common counts, and the defendant pleaded the general issue and limitations. Issue was joined on the general issue pleas, and the plaintiffs replied to the plea of limitations, that the defendant removed and secreted himself out...
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*345The opinion of the court was delivered by Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, .living as one household, to each other, there will be no such .implication from the mere rendition and acceptance of the services. In order to recover...
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*371The opinion of the court was delivered by Bridge avenue, in the city of Camden, was one ’hundred feet wide, running from the Delaware river eastwardly, and through it were laid the tracks of the Pennsylvania Railroad Company. Second street, sixty-six feet wide, ■ crosses it at about right angles. The plaintiff in error owns land fronting on the west side of Second street, south of Bridge avenu...
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The opinion of the court was delivered by In an ordinary action upon a book account for more than $200, the District Court of the city of Trenton decided that a certain replication to a plea of set-off was demurrable, and ordered that the plaintiffs make a further reply to such plea within ten days. On a rule being entered to this effect, the plaintiffs sued out the present certiorari to review th...
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The opinion of the court was delivered by The first reason assigned for the vacation of the judgment of the justice ordering the tenant to be dispossessed, is that the affidavit filed by the agent of the claimant does not show a relation of landlord and tenant existing between the claimant and the tenant, no attornment being shown ■ and it does not show how the claimant became entitled to the rent...
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The opinion of the court was delivered by Under “An act constituting District Courts in certain cities in this state,” approved March 9th, 1877 (Pamph. L.,p. 234), two District Courts were established in Jersey City. By section 14 t.heir territorial jurisdiction was made coextensive with the limits of the city; by section 6 their jurisdiction was made exclusive when the defendant resided within th...
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The opinion of the court was prepared by The record shows a conviction of the plaintiffs 'in error on an indictment found against them for assault and battery. The bill of exceptions returned with the record shows acts of forcible injury to the person, committed by them, such .•as justify the conviction, unless the official character in which they assumed to act shields them from the ordinary leg...
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The opinion of the court was delivered by This certiorari- brings up a resolution of the board of aldermen of Jersey City, designating “The New Jersey Staats Zeitung ” as the newspaper wherein shall be published the names, residences and places of business contained in applications or petitions for licenses to sell liquors, under the statute approved March 17th, 1892. This statute requires these ...
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This action is brought to recover upon three promissory notes made by the defendant. One for $1,000, due March 23, 1889, is not contested. The notes in dispute were payable to the order of plaintiff's intestate, David Millard, one dated September 1, 1884, on demand, for $18,488.90; the other dated September 27, 1884, payable one day after date, for $1,687.33. David Millard died February 12, 1889. ...
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The opinion of the court was delivered by It is unnecessary to consider the grounds presented by the defendant for dismissing the writ of certiorari, for prosecutor’s sole objection to the proceedings cannot avail him. The argument in behalf of prosecutor concedes that the affidavit, whereon the justice allowed the rule to show cause, sufficiently shows a tenancy by the month, duly terminated by ...
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The respondent, Maria H. Carpenter, claims that she is the widow of John A. Carpenter, deceased, and as such is entitled to the fund in dispute. And the only issue of fact submitted to the court at the trial was, whether she was his widow. In support of her claim, she testified that she kept house for the deceased from October 1, 1888, till February, 1890; that her first husband died in December, ...
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In this case it appears that the defendant, a resident of the State of Iowa, attended this court, October 19, 1891, to defend a petition for divorce brought against him by his wife, and then pending. The hearing was adjourned on account of the illness of the wife, and the statement that she would not be able to appear in court within a week or ten days. No day was fixed for the hearing, and conseq...
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"Writ of entry. The question is which of the parties has the better title. Both parties claim under Susan Rand. The demandant’s title. On May 21, 1875, Susan Rand, by her deed of warranty, conveyed the demanded premises to her son Reuel, who, on the same day mortgaged back to her the same premises to secure his promissory note, of the same date, for three hundred and fifty dollars payable on deman...
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Assumpsit on a joint and several promissory note, dated January 22, 1880, given by W. T. Pettigrove and Freeman Tilton to Charles Woodbridge, for two hundred and *93fifty dollars payable on demand and interest at eight per cent. The plaintiff is administratrix on the estate of the payee of the note ; and the defendant is the widow and administratrix de bonis non on the estate of Freeman Tilton, on...
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This is a petition under E. S., c. 104, § § 47 and 48, praying that the respondent be "summoned to show cause why he should not bring an action to try his alleged title” to the real estate described in the petition, in which the .petitioner claims the fee and of which he claims to be in possession. The allegation is that the respondent claims under a mortgage of the premises which has been paid. W...
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Action on the case for deceit in the sale of a pair of oxen. The allegation was that the defendant, at the time of sale, knowingly, designedly and falsely represented the oxen to be "all right.” The alleged defect, proved by the plaintiff and admitted by the defendant, was that one of the oxen was a "drooler.” The principal question of fact submitted to the jury was whether that was a defect. One ...
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Prior to August 6, 1890, the plaintiff was a trader. On that day his creditors filed their petition in the court of insolvency praying that he be declared insolvent. Thereupon the defendant, as messenger, under a warrant from the judge of insolvency, seized the plaintiff’s stock in trade, among which were four new plows and two new harrows. On September 3, 1890, the plaintiff was duly declared an ...
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Assumpsit upon a note and account annexed for goods sold and delivered. The case was heard by the presiding Judge with the right of exceptions. Judgment was rendered for the full amount sued for. The defendant claimed that there was not sufficient proof of delivery of the goods to hold him liable; but the court ruled otherwise, and this is the only question raised by the exceptions. A full report ...
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The public interest requires a decision of this case upon the merits, and the result of this judgment does not call for any consideration of questions of procedure, and none is given. *64By virtue of § 5, c. 1, ofB. S., applicable to all statutes of the State, the registration act of 1891 took effect "in thirty days after the recess of the legislature passing it, unless a different time is named t...
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Trover for a buckboard delivered by the plaintiff on June 25, 1887, to one Dorr and taking back therefor a Holmes note, of the same date, for $61, on fourteen months, duly recorded on July 29, 1887. Within a few weeks (exact date in dispute) after his conditional purchase, Dorr exchanged the buckboard for a "cut-under” with one Penney, who, in September following, sold it to the defendant, who in ...
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This bill in equity calls for a construction of clauses in the following deed of trust and amendment thereto : "Know all persons by these presents, that I, John W. -Veazie, having fully determined to retire from active participation in business, in order, whilst leaving for myself independent support during life, also to express my affection for and confidence in my two children, Alfred Veazie and...
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Tire Lincoln Pulp and Paper Company, a corporation existing under the laws of this State, was adjudged insolvent on petition of its creditors, and the plaintiff as assignee brings this suit to recover the sum of six thousand and twenty dollars, being the balance of forty per cent of the par value of three hundred and one shares of the company’s stock issued to the defendant, and for which he paid ...
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The second and third specifications allege that the court below erred in holding that the alleged widow was a competent witness to prove that she was lawfully married to Andrew P. Lusk, the decedent. It appears that one Jennie E. Stoner appeared before the auditor appointed to make distribution of the estate, and claimed to be the widow of said decedent, and as such widow entitled to her share or ...
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Opinion by On the 26th of August, 1891, the plaintiff was driving a one horse market-wagon along Second street in the city of Harrisburg. In attempting to cross the defendant company’s road upon this street, his wagon was struck by a moving car, causing the injury for which this suit was brought. He was driving down the street in the same direction as the car, and, when about fifty or sixty feet f...
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The judgment is affirmed upon the opinion of the learned judge of the court below. [See, also, the preceding case.]...
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Opinion by The learned court below found that the defendant company was incorporated under the general corporation law of 1874, for the purpose of manufacturing blank books and stationery, printing, lithographing and selling the product of such manufacture, with a capital of $350,000 ; that during the year ended the first Monday of November, 1890, it was actually carrying on manufacturing within ...
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Opinion by The fund in controversy is less than three hundred dollars. It arose in the partition of real estate of which Joel B. Krauter was one of several tenants in common. The appellees, judgment creditors of Joel B. Krauter, claimed the greater part of it in virtue of the lien of their judgment which attached before the proceedings in partition were commenced; and Krauter, the appellant, inte...
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Opinion by This case does not differ in any material respect from Commonwealth v. William Mann Company, decided at this term. For the reasons therein given the judgment must be reversed and judgment entered for the Commonwealth for the tax upon so much of the defendant’s capital as was employed in other than its legitimate business of manufacturing. The judgment is reversed, and judgment is now e...
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delivered the opinion of the Court. This is an action of deceit, founded on certain false and fraudulent promises and representations alleged to have been made 'by the defendant, upon the faith of which the plaintiff acted, and in consequence of which he suffered damage. After the plaintiff had closed his case, the Court instructed the jury that the evidence was legally insufficient to entitle him...
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delivered the opinion of the Court. In eighteen hundred and ninety, Francis Y. Owens was a legal resident of the first precinct of the twenty-second ward of Baltimore City, and was registered as a qualified voter at the registration of that year from No. 1128 North avenue. Said precinct is in the second legislative district of the city. "He remained there until late in September, eighteen hundred ...
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Opinion by ■ The questions presented in these cases grow out of a state of facts so unusual as not to be in legislative contemplation when the taxing Act was passed, and too far outside of the ordinary course of business for much light to be afforded by precedent or experience. A corporation with enormous assets, and also enormous liabilities, found itself unable to meet the interest on a very la...
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Opinion by The defendant may have a good title to one half of the land as tenant in common, but a more disorderly method of asserting it rarely comes before a court. He had a paper title by deed made in 1866, the trespass complained of took place in 1888, and there was no pretence that he had been in actual possession of the land between those dates. On the contrary the legal possession was in th...
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Opinion by If the appellant’s claim in this case was for rent to fall due in the future, as the learned auditor held, the action of the court below could not be successfully attacked. In the distribution of a fund the general rule undoubtedly is that those only are entitled to share who have a definite demand against it, or a cause of action capable of adjustment and liquidation upon trial. Id ce...
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Opinion by The debt fo^ which this note was given was unquestionably Feight’s, and it was incumbent on him to pay the note though he was not party to it. When it fell due and Feight was unable to pay it, plaintiff being an indorser would have been liable to be called on by the bank for payment, and therefore to have the money raised on a new note made by defendant was in a certain popular sense an...
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Opinion by The defendants are and were at the date of the bond on which this judgment was entered husband and wife. In the winter of 1884-5 they lived in this state near Philadelphia. Desiring to remove to Delaware they visited Dover and its vicinity in February in 1885 in search of a suitable farm on which to make their home. Among the farms examined by them was that of Baum the plaintiff, from ...
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Opinion by The defendants were retail dealers in clothing in the city of Philadelphia. The plaintiff, in company with his wife, visited their store for the purpose of purchasing a suit of clothes, having upon his person at the time a watch and chain. Having selected a coat and vest, and, being about to remove the corresponding garments for the purpose of trying on those selected, he took off his ...
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Opinion by The order of the orphans’ court in 1881 was in the alternative, that the executor and trustee should procure and maintain at his individual expense an insurance on his mill property which was the security for his debt to the estate, or file a bond with sureties. The latter alternative at least was clearly within the authority of the court to order, as part of its control over the truste...
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Opinion by The substance of this case lies in a very narrow compass. The appellant as agent for a disclosed principal sold to plaintiffs a house, with an agreement that possession should be given within ninety days. This latter agreement was in excess of his authority, and if his principal had refused to be bound by it, the agent would have been personally liable to the plaintiffs for any resultin...
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Opinion by The fund, the interest of which was paid to the widow of testator, was a debt of the executor and trustee to the estate, yet its existence in that form did not necessarily, or in fact as the auditor found, involve any breach of duty. It was not a debt in the ordinary general sense, but unpaid purchase money for the mill property, the equitable title to which was in the executor and trus...
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Opinion by This suit against Anthony Lynch and his sureties, James McElwée and Michael McCullough, is on their obligation given on appeal to this court from the decree in Lynch v. Lynch et al., reported in 132 Pa. 422. That was a proceeding in equity for the partition of certain real estate, and an account of the rents thereof, resulting in a decree declaring, in effect, that the land in question ...
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Opinion by The ground upon which the appellants invoke'd the jurisdiction of the orphans’ court was that the city of Philadelphia, having received a legacy from the executors of Dr. Franklin *449under a void bequest, a trust thereupon resulted in favor of his residuary legatees as to the money so received, of which the city, ipso facto, became trustee, and, as such, subject to the jurisdiction of ...
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Opinion by The duties and powers of school directors are defined and regulated by the Act of May 8, 1854, and its supplements. Their important duties are two in number. One is “ to establish a sufficient number of common schools for the education of every individual between the ages of six and twenty-one years, in their respective districts, who may apply for admission.” The other, as defined by t...
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Opinion by The plaintiff, an infant of less than four years of age, brought suit in the court below to recover damages for injuries *148received in the same accident out of which Jackson Twp. v. Wagner, 127 Pa. 184, grew. According to the plaintiff’s witnesses, he started, in-company with his mother, two younger children and Miss Wagner, the plaintiff below in Jackson Twp. v. Wagner, to drive over...
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Opinion by The only question presented by this record is whether the court erred in refusing to enter judgment for want of a sufficient affidavit of defence. That question, we think, is entitled to an affirmative answer. If this were a scire facias on a claim filed by Christy, the principal contractor, for work and labor done and materials furnished by himself under his contracts with the owner of...
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Opinion by A careful examination of the numerous specifications fails to disclose error. The attempt to surcharge the account of the assignee with the sum of $2,000, and interest thereon, for the reason that he should have sold the real estate for that much more than he actually received, was ungracious. The evidence shows that he acted with prudence, and that he endeavored to get the best possibl...
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Opinion by The plaintiffs, in their statement of claim, present a clear prima facie case. They aver, in substance, that, as children and heirs at law of Thomas Bakes, they bring this suit to recover from defendant the amount of rents collected by her from real estate of which their father died seized. In connection therewith they present an itemized statement of the rents so collected by defendant...
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Opinion by This case was here in 1891, and is reported in 143 Pa. 129. The question then presented was whether a formal re-election of the cashier each year was necessary in order to the liability of the surety on his official bond. The learned judge of the *356court below was of that opinion and accordingly entered judgment in favor of the defendant. The plaintiff appealed assigning the ruling up...
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Opinion by We think the decisions of this court in the cases of ommonwealth’s Appeal, in Wilson’s Est., 4 Pa. 164, and in Arnold’s Estate, 46 Pa. 277, control the determination of the present contention. In both of them it was held that, although the Act of 1811 gave a lien in favor of the commonwealth for the balance found due upon the settlement of accounts of county officers, against all the l...
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Opinion by The jury found a verdict for the plaintiff under instructions which are not now before us, and the court below entered judgment for the defendant non obstante veredicto on a point reserved. The learned judge held that the railroad company defendant -was bound not only to build but to maintain the bridge. This conclusion is not challenged by the present appeal, and we must accept it as ...
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Opinion by The first, second and sixth assignments of error are not in conformity with the rules and will not, therefore, be considered: Hawes v. O’Reilly, 126 Pa. 440; Battles v. Sliney, Ibid. 460. The fifth assignment was abandoned on the argument, and the refusal to allow the question contained in the ninth did not, in view of the subsequent testimony of the witness, injure the appellant. The t...
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Opinion by This case arises under the act of assembly relating to cities of the third class, which was approved on the first day of May, 1876. The act declared that no city of the third class should, after the passage of the act, pass any ordinance authorizing the grading or paving of any street, lane or alley until it had first caused the city engineer to make an estimate of the total *464cost of...
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Opinion by It is the settled rule in Pennsylvania that where a wife elects to take against her husband’s will, equity executes the substituted devises and bequests to the wife as a trust in her for the benefit of the disappointed claimants to the amount of their interest therein, and the court will assume jurisdiction to sequester the benefit intended for the refusing wife in order to secure compe...
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Opinion by Litigation about line fences is one of the most expensive luxuries known to the law. This case is not an exception to the rule. The fence in controversy divided the property of the plaintiff from that of defendant, Karl Erdman. It appears to have been an old fence, and to have been standing on the same line for a long period of time, perhaps. fifty years. For *435some reason the defenda...
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delivered the opinion of the Court. The object of this» proceeding is to vacate and set aside a voluntary deed executed by Miss Elizabeth Graham, now Mrs. Elizabeth Whitridge, less than six months after she had reached the age of twenty-one, and about two months prior to her marriage. The deed recites that she had attained the age of twenty-one and was desirous of settling her property in trust, a...
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This was an action on a promissory note against three defendants, a principal and two sureties. The principal, in addition to the general issue, filed a brief statement of special *138matter in defense, alleging that since the date of said note he had received a discharge in insolvency, also stating the name of the court, the date of his petition, the date of the discharge, and that the discharge ...
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The opinion of the court was delivered by This certiorari has brought up a judgment against prosecutors in the Mercer Common Pleas, affirming a like judgment of the District Court of Trenton, in an action of tort brought by the defendant for the recovery of $200 damages. The prosecutors attack the judgment upon two'grounds— (1) that the District Court erred in admitting evidence over their objecti...
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Opinion by Appellant’s claim is based solely on what is claimed to be a valid and binding promise of the decedent to leave her by will a legacy of three hundred dollars. The alleged agreement *144is evidenced, in the main, by the last clause of a paper which reads as follows : “ Received this day from Ann Charlotte Gast the sum of one dollar in full for all my services rendered her in her house up...
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Opinion by This action was brought upon an accident policy, and the *137claim of the plaintiff was, to recover the maximum amount of $2,500, for a partial permanent disablement. If, under the evidence, a recovery can be had at all for that species of disablement, the judgment of the learned court below should stand. The language of the policy which authorizes a payment of $2,500, for such an injur...
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Opinion by It is not to be doubted that when Henry Heermans had devised the mansion house and two and one half acres of land to his wife for life, the remainder would have passed, by the general devise of the residue of his estate contained in the third paragraph of the will if there had been no other provision indicative of a different intention. But the intent of a testator is to be gathered fro...
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Opinion by The plaintiff sues upon notes made by C. M. Crandall, one of the defendants, in his own name, and seeks to charge the other defendants as partners of Crandall in a business in which the proceeds of certain other notes, of which these were renewals, were used. The evidence relied upon to establish the alleged partnership is a contract in writing between Crandall of the one part, and the...
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Opinion by By Act of April 11, 1856, it is provided “That the sheriffs of the several counties of this commonwealth, excepting the counties of Allegheny and Philadelphia, to whom are committed the custody of prisoners, shall hereafter receive such allowance for boarding said prisoners as may be fixed by the courts of quarter sessions of the respective counties, not exceeding twenty-five cents per...
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Opinion by When the ordinance of March 30,1888, was passed it had apparently all the Requisites of validity, passage in due form, by the regularly elected councils of a city of the fifth class under the Act of May 24, 1887, P. L. 204. All of these elements existed defacto, and were supposed to exist de jure. Under this supposition the city organization had been made, officers elected, their compen...
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Opinion by The main ground on which the proceedings were set aside by the learned judge below has since been taken away by the decision of this court in Hand v. Fellows, 30 W. N. 72, and McCall v. Coates, 23 Atl. Rep. 1126, 1127. It was there held that the Act of May 16, 1891, P. L. 75, in relation to laying out, opening, etc., streets, etc., in the several municipalities of the commonwealth, is a...
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delivered the opinion of the Court. This was a special case stated for the opinion of the Circuit Court of Baltimore City. It appears that on the ninth day of March, 1864, Henry Tiffany leased a certain lot of ground in Baltimore City to James Boyce at the annual rent of seven hundred dollars. The lease was for the term of ninety-nine years, and was renewable forever. It contained the usual covena...
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The promissory note declared on, dated June 6, 1872, was given by the defendant’s testator to his wife, the plaintiff’s intestate. The parties thereto were married in 1858, and cohabited as husband and wife until the death of the wife in July, 1887. The husband also died in August, 1889. There is no evidence tending to show that the note was without consideration, as in Fuller v. Lumbert, 78 Maine...
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The inhabitants of Monson ask for a writ of certiorari to quash the record of the county commissioners which located a town way wholly in that town, one terminus of which connects with a highway. *100The petition for the way was presented and the statutory notice ordered thereon, at the regular session of the commissioners held on April 1, 1890. After the notice was complied with, but prior to the...
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Opinion by The main feature of this case is governed by City of Phila. v. Scott, 93 Pa. 25, and City of Phila. v. Hiester, 142 Pa. 39. In the former it was held that the meaning of the words “ duly proceeded in to judgment ” in the first section of the Act of March 11,1846, P. L. 114, was settled by the construction of the second section of the Act of March 20, 1827, 9 Smith’s Laws, 304, authorita...
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Opinion by This case depends upon the- same principles as City of Philadelphia v. Kates, opinion filed herewith [the preceding ease], and must be reversed for the same reasons. Judgment reversed and the claim and judgment thereon reinstated....
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Opinion by Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiation of the bargain: Inslee v. Jones, Brightly’s N. P. Rep. 76. A broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is satisfied, and who actually contracts for the purchase of the property at a price acceptable to...
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Opinion by The auditor rejected the claim of Frey’s executors on the ground that the bond in question was not sealed by John Hess; and upon the further ground that there was no consideration for his assumption of any liability for John Kendig. This ruling was sustained by the orphans’ court, and forms the subject of the principal assignment of error. It appears that, on April 1, 1874, John Kendig ...
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Opinion by The first six specifications of error do not require discussion. It needs no argument to show that the title to real estate cannot be destroyed by the mere declarations of the grantor. The seventh specification presents a different question. The court below, in answer to the plaintiffs’ point, gave the jury a binding instruction to find in their favor. This renders it necessary to exam...
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Opinion by In the main the learned court below correctly instructed the jury as to the law of the case, and in certain portions of the charge the question of the defendant’s negligence was apparently left to the jury on the whole testimony affecting that subject. The complaint, however, of the defendant is that in certain other portions of the charge the jury were wrongly instructed as to the bur...
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The learned court below entered judgment for the defendant non obstante veredicto upon the reserved point. As he did not file an opinion, we have no means of knowing, the reasons for this ruling. The defence was that the will of Benjamin Shenk did not create a charge upon the land of the defendant; and, further, that, if it did create such charge, the said charge was *523barred by the statute of l...
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Opinion by It was certainly proved, and not contradicted, at the hearing of this case before the master, that the borough council gave permission to the defendant James A. McGrath to construct the drain in question. In so far therefore as it was in the power of council to authorize the digging and laying of the drain, the act of the defendant in doing so was a lawful act. The power of the council...
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Opinion by It is the settled rule imthis state that the orphans’ court will always scrutinize a settlement made by a guardian with his ward shortly after the latter arrives at age, and where no account of the trust is filed with the register. In such cases the burden of proof is on the guardian to show that the settlement was a fair one, and that no fraud was practiced upon his ward. The rule upo...
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The controlling question in this case is whether the share of Elias Becker in the estate of his father, John Becker, Sr., should be distributed as real or personal estate. If it is personal estate, it is conceded the distribution, made by the learned auditor, and approved by the court below, is right. The doctrine of conversion, as stated by Justice Williams in McClure’s Appeal, 72 Pa. 414, is und...
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We fail to find error, either in the rejection of evidence, or the charge of the court. The eleventh specification alleges that the court below erred in giving the jury a binding instruction to find a verdict in favor of the defendant. This would have been error had there been anything to submit, but the learned judge was of the opinion that there was not sufficient *397evidence that the plaintiff...
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Opinion by This case is ruled by Ehrisman y. East Harrisburg City Passenger Railway Co., decided herewith. [The preceding case.] The plaintiff, in attempting to cross the track of the defendant company on Seventh street, with his horses and wagon, was struck by a passing car, which caused the injury for which this suit was brought. There was a hood to his wagon, which confined his view to twenty-f...
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Opinion by First and second assignments. There is no doubt that the transaction between Andrew L. Kitchen and Pennington after the levy, when Kitchen refunded to Pennington the money which Pennington had paid him for the horse, was a rescission of the sale of the horse by Kitchen to Pennington. As between them Kitchen thereby became entitled to the possession of the horse and also to the property ...
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Opinion by The very grave difficulty in the way of appellant’s recovery is that he has no interest or right for which damages can be allowed. The street on which his building was erected was established and laid out by the proper authorities in 1868 in accordance with the provisions of the municipal charter. It was not until the year 1878 that he leased the ground and erected his building and when...
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Opinion by The obligation of the defendant to the plaintiff is expressed *126in these words: “ That the said lessee shall pay all and every the United States, state and local taxes, duties and imposts, on the coal mined, the mining improvements of every kind and the surface and coal land itself.” The charge sought to be recovered in this action is a municipal assessment to defray the cost of buil...
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This case is here upon certiorari, and we cannot look outside of the record. The proceedings appear to have been regular, and were authorized by law. Order affirmed....
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We think the learned auditor and court below were right in rejecting the appellant’s claim. It was exceedingly stale, if not suspicious. It was long since barred by the statute of limitations. The letter from John Toomey to the appellant, dated April 18, 1886, and which he relies upon to toll the statute, is found by the auditor to be a forgery. We cannot sustain any of the specifications of error...
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This case has been so thoroughly discussed by the learned judge below, that nothing further remains to be said. We affirm the judgment for the reasons given by him in his opinion. Judgment affirmed....
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While this case is by no means free from difficulty, the learned judge below appears to have closely followed our rulings, when the case was here upon a former appeal. See 144 Pa. 520. We see no sufficient reason to modify our views as then expressed by our late Brother Clark. Judgment affirmed....
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Opinion by As we understand the contentions and concessions of the parties, it is to be considered that if the plaintiffs had accepted the draft for the sugars shipped by the Sagua the proceeds would have been received by Perkins & Welsh, and would have been placed by them to the credit of Mora, Ona & Co., on their general account with Perkins & Welsh. This would have been in accordance with the ...
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This was a petition in the court below by a voluntary assignee for the benefit of creditors for an order to sell assigned real estate, under the provisions of the Act of 17th of February, 1876, upon such terms as the court shall deem for the manifest interest of creditors, etc., and for a stay of execution upon all liens which may be divested by said sale until said order shall be expended or revo...
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Opinion by This was a case of grade crossing. The Newport & Sherman’s Valley Railroad Company, appellant, was incorporated on the 31st day of July, 1890, to construct and operate a narrow gauge railroad from Newport to New Germantown, Perry county, Pa., a distance of thirty miles, and had constructed its road, and had the same in operation, as far as Loysville, an intermediate point along its lin...
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Opinion by The debt for the collection of which the writ of foreign attachment was issued was contracted in a foreign country. Long and Bisby, who are the plaintiffs in the attachment and the appellants here, are, and since 1863 have been, domiciled at Hamilton in Canada and engaged in business there; the defendants in the attachment are citizens of Scotland and members of the firm of Girdwood & ...
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This was an ejectment in the court below. The only speci- . fication of error is that the court imposed full costs, the de*517fendants not having filed a disclaimer. The ruling of the court below is so clearly right, and the appeal itself of such a trifling nature, that we not only affirm the judgment, but also impose the penalty of $20 counsel fee, provided by the act of assembly for frivolous ap...
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All of the material specifications allege error in the auditor’s finding of facts. No such clear error has been shown as would justify us in reversing them, especially as they have been approved by the learned judge below. A discussion of the evidence here would be out of place. • The decree is affirmed, and the appeal dismissed at the costs of the appellant....
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The order appealed from in this case is affirmed, for the reasons assigned by the Judge below. The cost of appeal to be paid by the appellant. Order affirmed. Robinson, J., dissented....
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Assumpsit on a promissory note for three hundred and seventy dollars, payable in twelve, months, given by one Frank L. Pinkham for moneys of the plaintiff that he had embezzled, and signed by the defendants, his father and a relative, as sureties. The verdict was for defendants, and the case comes up on motion and exceptions. I. It is contended that the note was obtained by duress, and that the co...
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The undisputed facts are these: The plaintiff was a wholesale clothing dealer in Boston. It was a part of his business to cut and trim garments and send them out to different shops to bo made up and returned to him. The defendant had a shop in Norridgewock where he carried on the business of taking in such garments, making them up and returning them to the clothing dealers. At one time the defenda...
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The respondent appealed from the sentence of a magistrate after conviction upon a complaint charging him with having unlawfully sold a glass of intoxicating liquor. In the appellate court he filed a general demurrer, claiming that the copies of the complaint, warrant and record of conviction were not properly certified by the magistrate. The presiding justice overruled the demurrer and adjudged th...
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The plaintiff became the owner by deed of a parcel of land upon which was a small wooden building. The defendant entei’ed upon the land and began to remove the building from the land, and had moved it nearly off the land, when the plaintiff replevied it. The building at the time of the service of the replevin writ lay about one fourth on the plaintiff’s land» The evidence clearly showed that the p...
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The opinion of the court was delivered by The plaintiff in error was convicted in the Mercer County Quarter Sessions upon an indictment of which the following is a copy: “ Mercer Oyer and Terminer and General Jail Delivery, “ January Term, 1891. “ Mercer County, to wit — The grand inquest of the State of New Jersey, in and for the body of the county of Mercer, upon their respective oath— “ Pres...
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The opinion of the court was delivered by The plaintiff in error was convicted in the Mercer County Quarter Sessions upon an indictment of which the following is a copy: *422 “Mercer Oyer and Terminer and General Jail Delivery, “October Term, 1891. “ Mercer County, to wit — The grand inquest of the State of' : New Jersey, in and for the body of the county of Mercer,, upon their respective oat...
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*394The opinion of the court was delivered by This procedure has been placed before this court for its advisory opinion by the judge of the Circuit Court of the county of Mercer. The certificate of the Circuit judge is as follows, viz.: The Mercer county grand jury, at the term of October, A. D. 1890, of the Court of Oyer and Terminer and General Jail Delivery of that county, indicted one Jacob B...
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Judgment affirmed....
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The decree in this case is affirmed upon the opinion of the learned judge of the court below, and the appeal dismissed at the costs of the appellants....
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Tbe appellant is a member of the firm of J. A. Wolfersberger & Co., against which firm this suit was brought in the court below to May Term, 1877. In June, 1877, Wolfersberger, one of the defendants, filed an affidavit of defence to a part of the claim. Nothing further appears to have been done until October, 1891, when judgment was taken for the amount admitted to be due. An application was subse...
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The defendant’s third and fourth points prayed for a binding instruction in their favor. This was properly refused, and such refusal forms the subject of the first and second specifications. The third is not properly assigned, and will not be considered. The remaining specification alleges error in the charge of the court. We think that portion of it embraced within the specification, is free from...
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Opinion by This case turns upon a single question of fact. The parties own adjoining farms which in 1826 came into the possession and ownership of two brothers, John Bennett and Thomas Bennett. John lived on his farm till his death in 1882 and his son, the plaintiff, succeeded him. Thomas died in 1842. On the settlement of his estate his farm became the property of T. Elwood Bennett his son, who i...
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The decree is affirmed and the appeal dismissed at the cost of the appellant....
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Opinion by At the argument leave was asked to file an additional-assignment of error, and this request was opposed on the ground that exception had not been taken in the court below to the portion of the charge which was the subject of the proposed assignment. No formal bill of exceptions is to be found in the record, nor is there anjr other means of ascertaining the truth about which the counsel...
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The complainant, as trustee under the will of James A. Aborn, late of Providence, deceased, brings this bill for instructions in regard to the payment of the trust fund now in his hands for distribution. The clauses of the will involved in this inquiry are as follows: – "Sixth. And I direct that, as soon as conveniently may be after the decease of all my said brothers and sisters, the trustee for ...
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Eeal action, brought by the administrator of the mortgagee against the defendant who claims title and right to possession of the demanded premises under a mortgage of earlier date. The mortgage under which the plaintiff claims title was given by the defendant’s husband to Henry Knight, the plaintiff’s intestate, October 20, 1879. That under which defendant claims title and possession was given by ...
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Opinion by This was an action in the court below to recover the amount of loss sustained under a fire insurance policy. Upon the trial below, the plaintiff offered the policy in evidence, which, upon objection, was excluded by the court. The ground for this ruling was that the policy was in the name of Henry Diffenbaugh, while the suit was brought in the name of Emma M. Diffenbaugh, his wife. In o...
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This case is ruled by Diffenbaugh v. The Union Fire Insurance Company of San Francisco, just decided. [The preceding case.] Judgment affirmed....
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The only question in this case has been so intelligently discussed by the learned judge who heard it below in his opinion on the exceptions to the auditor’s report, that we affirm the decree for the reasons there given by him. The decree is affirmed and the appeal dismissed at the costs of the appellant....
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Opinion by The question in this case is the same, and arises upon substantially the same facts as were presented in Cook v. Baker, Appellants, v. Murphy et al., No. 8, January Term, 1892, in which an opinion has just heen filed [the preceding case]. For reasons there given, we think the affidavit of defence in this case is insufficient and plaintiffs are therefore entitled to judgment for the amou...
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Opinion by The rule is now well settled in this state that one approaching a railroad crossing upon a public highway must stop, look and listen at a convenient distance from the railroad track, before venturing to go upon it. This rule is imperative. If one disregards it and suffers injury in the attempt to cross, the presumption of negligence on his part is a presumption juris et de jure. Having...
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The jury rendered a verdict in the court below for the defendant for $1. As he entered no plea but that of non assumpsit there is nothing for the dollar to stand upon, and it must be rejected as surplusage. As this technical error was not corrected in the court below, it will be done here. That *521portion of the verdict is set aside. We find no other error in the record. There was evidence suffic...
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The judgment is affirmed upon the opinion of the learned judge of the court below....
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The learned judge of the court below has given sufficient reasons for setting aside the order of confirmation. We think his order, however, was too broad. While it was entirely proper to set aside the report of the jurors for the reason that they made no effort to obtain releases of damages from the property owners, we see no reason why the entire proceeding should have been dismissed. The petitio...
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We'do not think the appellants have any reason to complain of the answer of the learned judge below to their first and second points. Each of the said points assumed certain facts that were disputed, and which were necessarily submitted to the jury. The answer of the court was a substantial affirmance of the points in case the jury found the facts to be as therein stated. The defendant’s third poi...
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Wp find nothing in this case which requires discussion. Nearly all of the specifications are to the findings of facts by the auditor. His findings were not only sustained by the court below, but were warranted by the evidence. The learned auditor, after full examination of the case, finds that of the credit taken for $3,495.39, as paid to E. 0. Alexander as interest, only $1,138.82 was actually so...
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Judgment affirmed....
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Judgment affirmed....
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Opinion by It is with some difficulty that we sustain the finding of parol stipulations of the contract not included in the writing. The latter is clear and explicit, and the evidence to vary it is entirely lacking in the element of any misleading representation at the time of signing, or of any fraud or accident. The only ground of equitable reformation is the mistake of the bank president as to ...
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Opinion by The appellant objects to the form in which the question of *300law tvas reserved by the court below. As no exception appears to have been taken to the reservation, we need not discuss this question. It is the duty of counsel, if they have any objection to the manner of the reservation, to except thereto in the court below. This is only fair to the judge. If his attention is called to th...
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Opinion by It is conceded that the report of the auditor in Re Assigned Estate of John Loutey which was affirmed by this court (not reported) is conclusive of this case, if the question now raised was involved therein. Our inquiry therefore is as to the extent of that decree. The learned auditor in the present case was of opinion that the finding of his predecessor in Loutey’s *510Estate must be l...
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The first and second specifications allege that the court below erred in permitting the witnesses named therein to prove the contents of the deed, alleged to have been lost. It was held in Diehl v. Emig, 65 Pa. 820, that the contents of a deed, lost, destroyed or suppressed, may be established by parol evidence in ejectment, when its existence has first been proved. There was sufficient evidence o...
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*514The opinion of the court was delivered by The first and second reasons assigned by prosecutors for the reversal of the judgment brought here by this certiorari, relate to the sufficiency of the state of demand. The action was in contract and the contention is that the demand sounds in tort. The demand lacks precision of statement, but after consideration, I think, it contains a sufficient sta...
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The opinion of the court was delivered by By a return, dated November 25th, 1891, surveyors of the highways, theretofore appointed by the Supreme Court, laid out a public road, partly in Piscataway township, Middlesex county, and partly in Bridgewater township, Somerset county — all of the road in Somerset county being within the corporate limits of the borough of Bound Brook, which was incorpora...
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The court decides the questions submitted, and instructs the complainant, as follows: – First. That the legacy of $3,000, bequeathed to Mary S. (Dean) Rounds in the residuary clause of the will of Calvin Dean, vested *Page 741 in her on the death of the testator, although the payment of it was postponed until the death of Julia Ann Maker. The language of the bequest is, "If there should be anythi...
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The only question raised by the exceptions taken to the rulings of the court in this case is, whether a landlord can forcibly eject a tenant from his premises, after the expiration of the tenancy, if the tenant holds possession, in good faith, under a color and reasonable claim of right. The defendant requested the court to charge the jury as follows, viz.: – First. "If the landlord enter and expe...
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In June, 1890, the District of Narragansett, without legislative authority, voted to *Page 734 establish a sinking fund for the payment of its bonded indebtedness, setting aside one thousand dollars for that purpose out of the tax for that year, and appointed the respondent commissioner of said sinking fund. He received said sum, which he invested, and for which he holds the security. In July, 18...
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This case is before the court on the question of the charging of Kimball Brothers as garnishees therein. *Page 747 The facts in the case are substantially as follows, namely: The plaintiff, a creditor of said defendants, brought a suit against them, at the October Term, 1891, of this court, in which suit said Kimball Brothers were made garnishees. The service upon them was made on May 13, 1891. T...
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We are of the opinion that the demurrers to the first, second, and fourth pleas should be sustained. The action is debt on a bond conditioned that the defendant, Booth, shall faithfully discharge his duties as agent of the plaintiff, and pay over to it all funds, etc., received by him as such agent. The breaches assigned are, first, that Booth did not well and truly discharge his duties as such ag...
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The plaintiff sues in an action of assumpsit on a promissory note, the declaration containing, besides the count upon the note, the usual common counts. The action was begun by a writ dated January 30, 1892, and served by attachment of the defendant's interest in certain real estate, and also by summoning the defendant. The defendant, by his guardian, in addition to the general issue, upon which i...
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We think that the word "action," as used in Pub. Stat. R.I. cap. 189, § 8, and cap. 205, § 9, which provide that no action shall be brought against any executor or administrator in his said capacity within one year after the will shall be proved or administration granted, except for certain causes specified, applies only to actions, strictly so called, at law, and not to suits in equity, and there...
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The defendant, who was convicted of the crime of burglary at the September Term, 1891, of the Court of Common Pleas, brings up this case by bill of exceptions, and prays for a new trial on the ground of erroneous rulings by the court below during his trial. The numerous exceptions taken by the counsel for the defendant are summed up by them in the following points, which we will treat as single ex...
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The complainant brought her action at law against the respondent, as administratrix on the estate of Jabez C. Gardner, deceased, on a claim against him for money expended and services rendered in his household, prior to his death. The action was entered at the September Term, 1885, of this court, and is still pending. The defendant, in answer to the suit, pleaded, first, the statute of limitations...
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At the trial of this case in the Court of Common Pleas, the plaintiff requested the court to charge the jury "that, if the defendant entered upon the premises of the plaintiff without the permission of the plaintiff, then the plaintiff is entitled to a verdict." The court refused this request and charged the jury "that the defendant had a right to enter upon the plaintiff's premises to get possess...
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By It. S., c. 40, § 17, as amended by c. 306 of public laws of 1889, the taking of certain kinds of fish — "by the use of purse and drag seines is prohibited in all small bays, inlets, harbors or rivers, where any entrance to the same, or the distance from opposite shores of the same, at any point, is not more than three nautical miles in width.” The defendant was indicted for taking sucli fish wi...
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This is an action of the case counting on the defendant’s negligence, in running a train past a highway crossing at East Newport, whereby the plaintiff’s intestate, a traveler upon the highway, was injured. The verdict of the jury was for the plaintiff, and the defendant has moved to set aside the verdict as against evidence and has also excepted to one ruling of the presiding justice. From the ev...
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The defendant on Sunday or Lord’s day, hired' of the plaintiff a team for the purpose of pleasure driving on the-same day. The defendant used the team for that purpose on-that day as the plaintiff supposed he would, and while so using-the team he injured it, not “wilfully, but solely by his negligence.. He returned the team to the plaintiff in a damaged condition on-the same day and refused to pay...
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The plaintiff as indorsee of two promissory notes made payable to the defendant or his order, declares against him as indorser of the same. The defendant challenges the plaintiff’s right of recovery by a general demurrer to his declaration. The rights of the parties must be determined upon their pleadings. The plaintiff’s declaration sets out the date of each note, (August 4, 1889, and January 19,...
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The contract which is the subject of this action, was made within this State between citizens of this State, and was to be performed within this State. Subsequently, the promisor, the defendant, after regular proceedings in the proper court of insolvency in this State, was granted by that court a discharge from all his debts under R. S., ch. 70, sec. 44. This *130discharge was properly pleaded in ...
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This is an action by Annie V. Keller, on K. S., ch„ 18, § '80, to recover damages for personal injuries which she' alleges she received through a defect in a road in the defendant town. She did not personally, within fourteen days after the' reception of the injury, give to the municipal officers notice in writing " setting forth her claim for damages,” but within that time her husband, Ilollis Ke...
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Assumpsit, in which the plaintiffs as real estate brokers claim to reeoArer a certain sum as commissions for services in negotiating the sale of a parcel of real estate belonging to the defendant. Whether they are entitled to recover at all is the only question presented by the exceptions. The defendant Avas the owner of a parcel of real estate which he authorized the plaintiffs to sell so as to n...
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Trover for the alleged conversion of ninety-one cases of toothpicks. The defendant now seeks to have the verdict against him set aside. The plaintiffs’ title is founded upon a mortgage given to secure a note payable in one year from February 1, 1889, the mortgagors "to continue in possession of the chattels until breach of the condition.” This action was commenced onNovember 2,188 9, three months ...
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Assumpsit on an account annexed against the goods and estate of Moses Webster, late of Vinalhaven, deceased, testate, in the hands of the defendants, his executors. The defendants interpose the special limitation bar of two years and six months provided for the benefit of estates of *145deceased persons and their personal representatives, by R. S., c. 87, § 12. The defendants were duly appointed a...
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This is an action for cutting and carrying away more or less of fifteen acres of ice from Lily Pond. The case comes up on report with the stipulation that, if the action is maintainable it is to stand for trial, otherwise a nonsuit to be entered. The owner of the bed of a mill pond raised by a dam across an unnavigable stream, has as an incident to such ownership the right to cut the ice therefrom...
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An employee in the defendant’s lumber yard connected with its repair shops, recovered a verdict of three-hundred dollars for damages resulting from the fracture of his-thigh bone, caused by the falling- upon him a pile of lumber’ near -which he and his co-employees were piling other lumber as it was being unloaded from a platform car — which verdict the defendant seeks to have set aside. The repor...
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This bill in equity seeks the legal construction of the following clause in the last will and testament of Isabella G. Andrews, late of Bangor, deceased. "Item 2. To my niece, Mrs. Ida II. Schoppe, I give all my housekeeping articles, including all my household furniture, beds and bedding, kitchen and table furnishings, books and pictures, all my wardrobe and all other articles of personal propert...
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The plaintiff, a wholesale liquor dealer, residing in Boston, seeks to recover a balance of two hundred and forty-one dollars and fifty-five cents for intoxicating liquors sold the defendant upon an order given to the plaintiff’s agent or traveling salesman, at the defendant’s shop in Old Town in this State. The contract with the agent was, that the plaintiff should send the defendant five barrels...
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This is a writ of entry. The parties own adjoining lots in the towns of Skowhegan and Cornville. The contention between them is the location of the dividing line between their lots. The issue as made up by the pleadings presents the question of title to a narrow strip of land from one to two rods in width, which the plaintiff alleges is a part of his lot and is in the possession of the defendant. ...
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The plaintiff brings this action as indorsee of a promissory note, dated the 8th day of March, 1888, given to *184one Loantha J. Parkman, for sixty dollars, payable on demand with interest. The defendant pleads in defense his discharge in insolvency, granted by the court of insolvency of Somerset county, on the 11th day of July, 1889. The discharge was granted by the court on composition proceedin...
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The plaintiffs, executors of the last will and testament of Israel B. Bray, deceased, seek by this bill a construction of certain provisions of the will. The only questions presented for our consideration arise under the fifth and seventh items, which, so far as are material to this case, are as follows : "Item Fifth. I give and bequeath to the children of Lydia Pullen, late wife of the late Alvin...
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The plaintiff’s title depends upon the validity of two tax sales, one in December, 1881, on the tax assessed to *194Isaac George, the other made in June, 1885, on the tax assessed to the defendant. The sales were made to the inhabitants of the town of Stockton, and the plaintiff claims under a deed from that town. The burden of proof is upon the plaintiff to show ■that in making these sales, or at...
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Bill in equity, praying for decree for a specific performance of a contract in writing, made by the defendant with the plaintiff for the purchase of a lot of land in the village of Sorrento. It comes before this court on a demurrer to the bill by the defendant, and the question to be determined is whether upon the allegations in the bill this court has jurisdiction in equity to decree a specific p...
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The plaintiff claims to maintain this bill against the defendants on the ground that his deceased wife at the time of her death held the legal title to the place described in the bill, upon which he with his family had lived for many years, in trust for him, and he claims a decree against the defendants who are daughters and heirs of the deceased wife, requiring them to convey to him the title whi...
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This was an action on the case, the declaration alleging that the defendant company by its negligence, in running one of its trains, injured the plaintiff’s intestate, a passenger on the train. The jury returned a verdict for the plaintiff, which verdict the defendant has moved us to set aside as against law and evidence. Reading the evidence as favorably for the plaintiff as can reasonably be don...
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This is an action at law, authorized by § 6, of c. 285 of acts of 1889, to recover the amount of a tax laid by the city of Auburn, as provided in said act, as a benefit to a certain parcel of the defendant’s real estate, accruing from the construction of a public sewer. I. It is objected that the act of 1889 is void because in violation of Art. IX, § 8, of the constitution, viz. : "All taxes upon ...
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Two questions were raised at nisi prius. Was the testator of sound mind, and was his supposed will obtained by undue and improper influences. The verdict finds he was of sound mind and negatives all undue and improper influence. At the trial, the presiding justice stated that, in his opinion, no other verdict could properly be rendered, and thereupon the above verdict was taken upon stipulation by...
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The defendant was the sheriff of Washington county. His deputy attached eighty-two cases of sardines on a writ against Peter M. Kane. At the time of this attachment, the sardines were on board ship at Eastport consigned by Kane to Hansen and Dieckman at New York, and the ship master had *232delivered the usual bills of lading therefor, and Hansen and Dieekman on receipt of the bill of lading had a...
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The facts stated show that the plaintiff and defendant had been copartners in business; that the plaintiff sold his interest in the partnership to the defendant, the latter giving the plaintiff as a part of the consideration of sale an agreement to pay the partnership debts; that the defendant afterwards went into insolvency, receiving in due time his discharge; that certain creditors named in the...
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The Municipal Court for the city of Lewis-ton was created by special act in 1871. See ch. 636, Special *240Laws of that year. Section four of the act provides that a term of the court shall be held on the first Tuesday of each month, and all writs be made returnable to one of the two terms to be begun or held next after the commencement of the action. By ch. 177 of Private and Special Laws of 1872...
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This is a petition for a new trial on the ground of alleged erroneous rulings by the court before whom the original cause was tried. The proceeding was an appeal by the heir at law from the allowance by the commissioners on the insolvent estate of Daniel C. Kenyon, deceased, of the claim of Delia A. Peirce, executrix of the will of Thomas J. Johnson. The appeal was heard by the court, jury trial h...
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The trustees under the will of Rufus Greene, deceased, ask for instructions as to the time of the division of the estate referred to in the following clause of the will:1 "Whenever the youngest child of any daughter in being at my decease shall have reached the age of twenty-one years, then my said trustees are to divide, distribute, and convey said property." Upon one side, it is claimed that the...
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The complainant seeks to ascertain and apportion the rights of the parties to this suit in the water of a pond and river, which are averred to belong to both as parts of their respective estates. The gravamen of the charge is, that the respondent uses and claims the right to use and control the entire waters of the pond and river; and that it has, by filling, crowded the stream, the middle line of...
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This bill is brought to compel the respondent to remove the obstructions which he has placed in certain platted streets and a platted park, which streets and park are delineated on a plat called "Oak Lawn Plat, Cranston, R.I., *Page 800 belonging to R.B. Holden, George A. Angell, E.R. Holden, and R.H. Blanding, surveyed and drawn March, 1873, by J.A. Latham," which plat is duly recorded in the of...
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The plaintiff obtained a judgment against the defendant in the District Court of the Seventh Judicial District. Thereupon the defendant's attorney, within the time prescribed by statute, filed an appeal bond, executed by himself in the name of the defendant, and paid the plaintiff's costs. Subsequently he filed the defendant's reasons of appeal at the next term of the Court of Common Pleas. Before...
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The court is of the opinion that the demurrer should be sustained. The bill is brought against the town of Johnston to restrain it from proceeding to lay out, establish, and open a certain public highway therein; for an account as to damages already done; and for general relief. But it does not show that said town in its corporate capacity has taken any steps in the matter of the lay-out and other...
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This is an action of trespass on the case, to recover damages for injuries alleged to have been sustained by the negligence of the defendant corporation. The accident occurred at a grade crossing on the defendant's road at Danielsonville, in the State of Connecticut; and the third count of the plaintiff's declaration is based upon sections 3553 and 3554 of the General Statutes of said State of Con...
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This case was before the court at a former term upon demurrer to the bill. Brewer v. Nash, 16 R.I. 458. It was then held that if the respondents continued to keep the proceeds of sale after learning of the defects which are supposed to invalidate it, they were equitably estopped from denying the complainant Brewer's title. Since that decision the respondents have answered the bill, and pray by way...
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The plaintiff sues upon a fire insurance policy dated January 10, 1891, for the sum of $1,300. The house and barn covered by the policy were totally destroyed by fire November 5, 1891. The defendant's second plea sets up a condition *Page 786 that the policy should be void, except as to the interest of the mortgagee of the premises, in case the insured had or should afterwards hare other insuranc...
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The bill in this case seeks to obtain payment of two promissory notes, given by a firm in which the complainant's husband was a partner, from the estate of deceased partners. On demurrer to the bill the question comes whether the bill can be sustained. Pub. Stat. R.I. cap. 204, § 28, is as follows: "The representative of one jointly bound with another for the payment of any debt, or for performanc...
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This is an information, *Page 593 in the nature of a quo warranto, to try the title of the respondent to the office of mayor of the city of Pawtucket. It sets forth that ward meetings for the election of city officers were legally held in Pawtucket on December 2, 1891; that the ballots were legally returned and counted by the board of aldermen on December 3, 1891, within forty-eight hours after t...
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The complainant seeks the specific performance of a contract for the sale of land. He is trustee under the will of Jane Keeley, who took the estate in question under the will of her grandfather, Jacob Whitman, and as such trustee the complainant made the contract of sale. The respondent objects to the title proposed to be conveyed upon two grounds: first, that Jane Keeley took under said will only...
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This is assumpsit to recover for the alleged use of water furnished by the plaintiff corporation to the defendant in the city of Rockland, from July 1, 1885, to July 1, 1886. It comes before this court upon an agreed statement of facts. The defendant in fact took and used the water from the first day of July, 1885, to the fourth day of November, 1885, when he notified the plaintiff corporation tha...
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The question of this case depends for its solution upon the meaning of this call in a conveyance of land : "On the southerly side of the steam." The following facts, made a part of this case, are found in a previous case between the same parties : " The Worromontogus stream flowing westerly is a tributary of the Kennebec river flowing southerly. About twenty rods above the confluence, the stream, ...
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In this action brought by an indorsee of a note against the indorser, the declaration closes in these words : " And the said Loren Leathers thereafterwards on the same day indorsed and delivered the said note to the plaintiff; and the plaintiff avers that afterwards when the said note became payable, viz : on the 25th day of July, A. D., 1888, at Medford, aforesaid, the said note was duly presente...
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The respondent was’found guilty of an assault with intent to kill, on an indictment which alleges that he assaulted one Roundy, "with intent, him the said Roundy, wilfully, feloniously and of his malice aforethought, to kill and murder.” The facts are not reported and the respective counsel do not quite agree in their recollection of them. The counsel for the respondent represents that the act com...
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The question of the case is whether notes of hand, dated in Boston, Massachusetts, in 1883, not witnessed, on a few months time, running from defendant to plaintiff, neither party no w or ever residing in this State, the defendant being personally in this State in June, 1890, when the writ in this case was *254served on him, — are barred by the statute of limitations or not. It may be added, as a ...
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A grantor (represented by these plaintiffs as his executors and trustees) conveyed a parcel of land to the grantee (the defendant) with this reservation in the deed: "Also saving and reserving to the said Lyon, his heirs and assigns, a full and free right of way over the carriage road lately made by him [said Lyon] over the parcel herein intended to be conveyed, to lots numbered three and four on ...
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The plaintiff, claiming that he had received a personal injury caused by a defective highway in the city of Gardiner, seasonably sent to the city this notice : "To the City Clerk of Gardiner: I, George W. Goodwin, of Randolph, Maine, in the county of Kennebec, on the first day of January, 1890, met with serious injuries in the city of Gar-diner, on a street leading from Water street to Steamboat w...
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In this action the plaintiff declares on a judgment alleged to have been recovered by him against the defendant, in 1867, before Robert Groodenow, Esquire, a trial justice, now deceased. To enable him to introduce secondary evidence of the contents of the alleged record, it became necessary to first prove that the original had been destroyed or lost. Two places would naturally be suggested as nece...
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The plaintiffs declare against the defendant in an action of deceit, alleging’ that the defendant represented that a corporation, styled the J. Way land Kimball Company, had a cash capital of forty thousand dollars paid in; that he was himself worth in property eighty thousand dollars; that the corporation was solvent and able to pay all its indebtedness and was all right; that these representatio...
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The plaintiffs, having sued the defendants and attached their real estate in an action of assumpsit, ascertained that the estate attached was encumbered by a mortgage to S. C. Belcher. As attaching creditors, under the authority of certain provisions of our statute (B. S., c. 81, § § 60, 61), they paid the amount due on the mortgage to the morgagee, and took from him a release of his claim on the ...
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The plaintiff purchased a ticket for a passage on defendant’s road from Somerset in the Dominion of Canada to Portland in this State, the ticket reading thus : " Issued by Grand Trunk Railway. Good for one second class passage within five days from date. Not good to stop over. Not transferable. From Somerset to Portland. Conductors will collect or exchange this ticket for check 'Z.’ L. S. 6. Serie...
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The defendant (King) through a real estate broker (Hunton), bargained to sell to Lavinia E. Damren certain real estate the title to which, subject to incumbrances, ® stood in his name. The incumbrances consisted of mortgages to a savings bank, and a number of lien claims of persons who had furnished labor and materials for constructing and repairing buildings on the premises. Attachments had been ...
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It appears from the testimony that in April, 1889, the plaintiff received an injury upon his eyes through a ■premature, explosion of rock in a granite quarry; that he first ■came under the professional treatment of the defendant, a practicing physician and surgeon; that he afterwards visited an eye :and ear infirmary in Portland, receiving treatment there; and that the final result to him was tota...
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This complaint alleges, in common form, an assault and battery. Upon trial in the municipal court for the city of Portland, the respondents were found guilty and sentenced to an imprisonment in jail, for sixty days, from which sentence an appeal was taken to the Superior Court. In the *273latter court a motion was filed to dismiss the proceedings because an infamous crime is charged by the complai...
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The rights of the parties to this suit depend upon the rule of damages that should be applied for plaintiff’s *269partial failure to perform his part of the following contract executed by them: "Portland, May 23rd, 1890. "Memorandum of agreement between A. D. Smith, C. J. Farrington, Israel Hicks, M. A. Dillingham and Gr. E. Raymond, all of Portland, of the first part, and E. Ponce of the second p...
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The plaintiff, a resident of Gloucester, Massachusetts, and owner of a fishing vessel, allowed the master of the vessel to take her on a voyage for the purpose of *297procuring a fare of fresh fish for the market. The master, after procuring the fish, sailed the vessel to Portland, sold the fare there to the defendant, a principal dealer in fish at that place, receiving full price for the same, im...
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This is a petition for review and comes before this court on a report of the evidence. So far as important for the decision of this case, the facts proved by the evidence areas follows : On the 27th of August, 1874, the petitioner conveyed to the respondent certain real estate situated in Rockland, with a covenant that the premises were free from incumbrances. In 1878, the petitioner left the Stat...
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The plaintiffs sued Isaac- T. Hobson, and undertook to attach on the writ a steamboat, standing of record at the custom house in Hobson’s name, by having the officer return a copy of his doings on the writ into the clerk’s office of the town where Hobson resided; although the steamboat was not actually seized by the office?" at the time of the pretended attachment nor until after the term of court...
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In an action against her son for the alleged failure to perforin his contract for her support, the plaintiff had a verdict against her, and moved to set it aside on the ground that one of the jurors, who rendered the verdict, was disqualified by his relationship to the parties. It appears that the juror’s mother and the plaintiff’s mother were sisters. The juror was, therefore, related to the plai...
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This case was heard on bill and answer. In 1871, B. F. Knowles purchased of V. A. Sprague the mill property at Southard’s Mills in Corinna, for fourteen hundred dollars, and gave him a mortgage to secure the purchase money. As a part of the transaction, however, Stephen Steward, the plaintiff’s intestate, advanced one half of the purchase money and received therefor two notes for three hundred and...
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Bill in equity, brought by Edward A. Hodgdon and his father, Mark W., asking for the removal of a cloud alleged to be resting on the title to the homestead of Mark, situated on the island of Mount Desert. It appears that the legal title to this property had not been in Mark for more than forty years prior to 1877, but for many years had been vested in his brother, Wm. Wallace Hodgdon. The purpose ...
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The plaintiff indorsed the defendant’s promissory note for the accommodation of one Morse, the payee, who then negotiated the same, and, when it fell due, the plaintiff paid it and now sues to recover the amount of the note from the defendant. I. The signature of defendant to the note was claimed to be a forgery. The court ruled that, a defense. II. The note was claimed to have been fraudulently w...
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One Robert Oram was school agent in district ¡number ten, Bristol, for the year 1889. In March, 1890, he *359issued Ms notice as required by law for the choice of school agent for the ensuing year, and personally made return thereon as to the notice given, that complies with the requirements of law in that particular. At the meeting, one Horace Poole was chosen agent, sworn and entered upon the du...
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This is a writ of entry. The plaintiff derives title under a deed from Mary. D. McIntire, wife of William H. McIntire, to Elbridge Randall,, dated November 3, 1879. The defendants are heirs of Mrs. McIntire and contend that this deed was inoperative because the husband did not join in it. Under our statutes real estate directly or indirectly conveyed to a married woman by her husband, or paid for ...
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Abigail J. Stetson, a resident of this State, by her will made and probated here, left numerous money legacies among which was one of six thousand dollars to Hattie M.Bachelder and one of three thousands dollars to Bernice M. Bachelder, and in addition she made those two persons her executors and residuary legatees. The residuary clause reads as follows: "All the rest and residue of my estate I gi...
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The jury having been sent out in the evening, the judge, after waiting some time without their return, proclaimed a recess of the court until the next morning, instructing the officer, in charge of the jurors, to allow them to separate at one o’clock at night if at that hour they had not agreed upon a verdict. The circumstance of the lights going out in the court house and jury room prevented the ...
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In this action to recover damages for ant injury sustained by the plaintiff by reason of the alleged negligence of the defendants in not keeping in repair a highway within their limits, the declaration avers, among other things, " that the highway surveyor of said plantation had at least twenty-four hours’ actual notice of said defect before the time of the said accident, and that the plaintiff, w...
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The complainants are judgment creditors of the defendant Stevens, and the executor of the will of Stevens’ father is the other defendant. The remainder of the estate of the testator, after the payment of certain legacies, was given to his executor, to hold in trust during the lives of his three sons and of certain life annuitants. After the payment of the life annuities from the income of the trus...
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This is an action to recover damages for personal injuries claimed to have been occasioned by a defective highway in the defendant town. A verdict was rendered for the full amount which the law allows, and the defendants ask to have the verdict set aside because there is no evidence of due care on the part of the plaintiff, or her father who was driving the team, at the time the injury was receive...
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This was an action, against two defendants as executors. The writ was served on only one defendant before entry, and was entered at the return term, when that defendant appeared. At the return term the plaintiff obtained an order of notice upon the other defendant to appear at the then next term. This notice was served upon the other defendant and he appeared at the then next term as required by t...
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This is a real action for the recovery of a parcel of land, in Palermo, and is reported to the law court for determination upon so much of the evidence as is competent and legally admissible. The plaintiff’s claim of title is under tax deeds and tax sales for non-payment of taxes assessed in Palermo against the resident occupant of the land in 1882 and 1883. The proceedings, which are intended to ...
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Assumpsit upon a promissory note of which the following is a copy : "Pittsfield, Eeb. 22, 1875. "For value received of J. C. Manson I promise to pay him or *381order four thousand dollars in one year from date and interest at the rate of eight per cent, semi-annually until paid. "W. K. Laneey. "Isaac II. Laneey, Surety.” The following indorsements appear upon the note, viz : "March 6, 187(5, recei...
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This is a real action to recover a lot of land with a church edifice thereon, situated in Old Town, the demand-ant claiming under a deed to himself from Ira Wadleigh, dated November 23, 1885, which, omitting formal parts and description of premises, is as follows : *390"Know all men by these presents, that I, Ira Wadleigh, now of Sacramento in the state of California, formerly of Old Town, Maine, ...
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This was an action of debt on a contract to recover the amount due on the defendant’s subscription to a "shoe-factory fund,” in the city of Ellsworth. It appears from the evidence reported that the defendant signed a subscription paper by which he promised to pay the amount of his subscription to the plaintiffs, who were therein named as trustees of the fund, " when there shall have been subscribe...
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This is a bill in equity brought for the purpose of obtaining a judicial construction of the following will: "1. I will that the money which may come from the policy of insurance, which I hold on my own life, be appropriated to the payment and discharge of any and all mortgages, then existing on my homestead house and lot on Cedar street, in said Bangor, ho that said homestead may be free from all...
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This is an action of assumpsit on two promissory notes, dated April 21, 1884, one for two hundred dollars and the other for thirty dollars, signed by the defendant and payable to the order of the plaintiff. The action was commenced November 16,1889, and an attachment of the defendant’s real estate made and recorded the same day. December 17, 1888, the defendant mortgaged the same real estate to se...
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The subject of this litigation is a promissory note reading as follows: "Pittsfield, Maine, August 29, 1881. Four months after date I promise to pay the order of myself twenty-five hundred dollars at any bank in Waterville, value received, F. E. Parks.” The note was indorsed by the persons and in the order as follows: F. E. Parks, W. D. Atkinson (plaintiff), F. E. Parks Bros. The members of the fi...
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Assumpsit for pauper supplies. It is admitted •that the pauper, a child of tender years, fell into distress and that the defendant became liable thereafter to the plaintiff for its support. But it is' contended, in defense, that the ovei’seers *421of the poor, of defendant city, offered to remove the child to the city almshouse, and the plaintiff, having refused to allow it to be done, could not t...
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One question is, whether a guardian may interpose the release of his ward, given after he is of age, as a defense in the probate court, to a citation for the settlement of his account. Probate procedure, in this State, should be conducted upon the rules of the broadest equity, whenever the provisions of statute do not conflict with that view. Substantial justice should be awarded by methods conduc...
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By special contract, the plaintiff engaged to collect defendant’s taxes for 1888, at a stipulated compensation. The taxes were committed to plaintiff July 1st. He collected, the entire tax, tardily perhaps, and paid the last installment to the town treasurer July 1, 1890. He was required to pay, and did pay, in addition to the taxes collected, seventeen dollars and forty-three cents, " to reimburs...
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Writ of Entry. Plea, nul disseizin. Plaintiff must recover upon the strength of his own title; not upon the weakness of defendant’s. Chaplin v. Barker, 53 Maine, 275. He must show seizin and right of entry within twenty-years before the date of his writ. Ii. S., c. 104, § § 2, 4» When that is shown, plaintiff may recover, unless defendant shows a better title in herself, not in another, under whom...
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This is an action on a covenant in a lease of real estate for the payment of rent by the defendant. In defense he relies upon his discharge in insolvency by the court of insolvency of Hancock county, from the payment of all his debts which existed on the eighth day of October, 1888, the day on which he was declared an insolvent, in accordance with the terms of chapter 70 of the revised statutes. T...
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Indictment charging, that the defendant, on February 17, 1891, did fish for land-locked salmon, trout and togue in Grand Lake, Washington county, in violation of c. 40, § 48 of R. S. Upon his arraignment he pleaded guilty, unless the court shall be of opinion that he was not guilty by *445reason of Ms being an American citizen resident in the Province of New Brunswick. The presiding judge ruled th...
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Trespass for entering upon the land of the plaintiff, which was within the limits of a private way located for the defendant by the county commissioners. There is no *447contention between the parties as to the jurisdiction of the county commissioners upon the defendant’s petition. lie had applied to the municipal officers of the town to locate the private way from his land near his house a short ...
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The plaintiff has obtained a verdict for two thousand dollars against the trustees of the estate of the late John B. Brown, for injuries claimed to have been received through their negligence. The case is before the law court on motion and exceptions. We think the exceptions must be sustained. The negligence complained of was the omission to keep in repair a railroad crossing on Brown’s wharf in P...
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In the agreed case, it appears that the defendant is guilty of causing the death of Martha Fortier by his wrongful act, unless it is otherwise by reason of insanity. The question presented is, whether the defendant is liable for his torts, and especially those committed when insane. The executor or administrator of a deceased person, whose death was caused by the wrongful act or neglect of another...
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The book of account of Woodward, supported by the suppletory oath of his administrator, would be competent evidence against Benton in a suit by the administrator against him to recover for the repairs of the wheel. Dodge v. Morse, 3 N.H. 232. Is the book evidence against third parties? Account books of a party are not evidence when the dealing between the debtor and creditor is, as to the parties ...
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If the plaintiff can maintain this action, it is because the defendants have done damage to the plaintiff's land by their fault and negligence in not building and maintaining the highway in a reasonably suitable and proper manner. The damages awarded on the laying out of a highway are such as the landowner suffers from its construction in a reasonable and proper manner. The recovery of these damag...
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Opinion by On May 24, 1892, James Monaghan, Esq., was duly qualified as reporter of the decisions of the Supreme Court, vice Boyd Crumrine, Esq., whose term of office had expired on May 21st of the same,.month. At the time Mr. Monaghan was qualified there were over three hundred cases which had been decided during his predecessor’s term of office, and not yet reported. A dispute having arisen betw...
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Writ of alternative mandamus refused....
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In capital cases and cases in which the accused, if found guilty, is liable to be punished by imprisonment for life, it is error’ to allow the jury to seal up their verdict and then separate before returning it into court. In cases not capital, and in which the accused, if found guilty, is not liable to be punished by imprisonment for life, the jury may be allowed to seal up their verdict, if it i...
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The case finds that the respondent was tried upon the second count in an indictment, in which count it is alleged that he unlawfully transported liquors on a certain day " from Burnham in the county of Waldo to Clinton in the county of Kennebec.” The only variation from this in either of the other counts is in the third, in which a distinct and different offense is alleged of the transportation of...
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This indictment charges the illegal transportation of intoxicating liquors from the town of Fairfield in the county of Somerset to the city of Waterville in the county of Kennebec, and also from the depot of the Maine Central Kailroad in Fairfield to the house of Edward Libby in Waterville. At the trial, in the Superior Court for Kennebec county, the *462counsel for the respondent requested that t...
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We think the injunctions prayed for in this casecannotbe granted. We think that, under the circumstances, it was the right of the towns and cities holding a majority of the stock of the Knox and Lincoln Railroad, they being also a majority in interest under the mortgages of the road, to determine whether or not the road should be sold or leased. No sale or lease of a railroad can be made in this S...
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The defendant admittedly killed two deer in this State contrary to the form, letter and spirit of the statute for the preservation of deer and other game animals. The only matter of fact he interposes in defense is, that he is an Indian, one of the Passamaquoddy tribe, a tribe living on and near Lewey’s Island in the eastern part of the State. Whatever the status of the Indian tribes in the west m...
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All unnecessary prolixity in criminal as well as civil pleadings ought to be avoided. But it is a fundamental rule of the criminal law, from which no departure can be allowed, that no one shall be convicted of a crime unless the complaint or indictment upon which he is tried contains a direct allegation of every material fact which it is necessary to prove in order to establish his guilt. In other...
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No suggestion of error or misdirection on the part of the presiding justice is made, but the case is presented upon a report of the evidence; so the only consideration is whether the verdict is supported by the weight of evidence, and *498that depends upon what testimony was believed by the jury, and whether they were justified in believing it. It is a common learning that the credit to be given w...
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The plaintiff claims to recover of the defendant company the value of a horse and a donkey which he delivered to the defendant, a common carrier by water, at Boston, to bo carried to Portland. He claims that when delivered to the defendant the animals were in a good condition, and when landed at Portland, the horse was paralyzed and the donkey sick, and both died in a few days from their injuries....
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This is a bill in equity to which the defendants have demurred. It appears by the allegations in the bill that the plaintiff owns land bounded by the shore of Penobscot Bay, and that the defendants have obtained by grant " all the right of taking salmon, shad, and alewives, on the whole of the shore frontage of said land, together with all the privileges necessary for carrying on the said fishing....
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This is an amicable proceeding in equity for the purpose of obtaining a judicial construction of the will of Thomas Fuller. It is presented on bill and answer, the defendants admitting as true all the statements offactinthe bill. The will is inartificially drawn, but it is not difficult to discern the real purpose of the testator pervading the instrument. And although certainty and security in the...
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The question is whether an adopted child can take a legacy given to one of its adopting parents, and thus prevent the legacy from lapsing, when the legatee dies before the testator. There is no doubt that a child born in lawful wedlock can so take. But, in this particular, does an adopted child possess the same right ? We think so. With two exceptions, neither of which is applicable to such a case...
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The city of Rockland has brought this action of debt under R. S., ch. 6, § 175, to recover the State, county and city taxes-assessed against the defendant for the year 1888 by the tax assessors of Rockland. The defendant concedes his liability to be taxed that year as an inhabitant and property owner in Rockland, but makes some objections to the mode of the assessment which he claims should bar re...
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A wilful and corrupt attempt to prevent the attendance of a witness before any lawful tribunal organized for the administration of justice is an indictable offense at common law. The essence of the offense consists in a wilful and corrupt attempt to interfere with and obstruct the administration of justice. And when the act and the motive are first directly averred, and then clearly proved, punish...
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This is an action to recover back money paid by the plaintiff, as executrix, to settle a claim against the estate of her deceased husband. She has obtained a verdict for one hundred and fifty-live dollars, and interest from the date of her writ; and the only question is whether the verdict is not so-clearly wrong as to require the court to set it aside. We think, it is. It is a settled rule of law...
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The question is whether the term "merchandise ” can, in any case, be used to describe property not intended for sale. We think it can. The word not only may be, but often is, used as the synonym of goods, wares, and commodities. It is so defined in Webster’s dictionary. If used in an insurance policy to describe the goods of a merchant, it might, perhaps, be very properly limited to goods intended...
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Illegal voting is an offense at common law. One who wilfully deposits more than one vote during the same balloting for a town officer is guilty of an offense for -which he may be indicted and tried, and, if found guilty, be punished by fine or imprisonment, at the discretion of the court. So held in Com. v. Silsbee, 9 Mass. 417. And we think it is equally an offense for one to so vote for a school...
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This is an action against an attorney at law to recover money collected by him on a promissory note. After the money was collected, and before this suit was commenced, the plaintiff settled with the defendant, accepted part of the money collected and gave a receipt in full. But the plaintiff says that this settlement was made in pursuance of an agreement between him and the defendant which was cha...
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This is an action by the administrator of James S. Parker to recover from his widow a portion of the money that has been paid to her as insurance on the life of her husband. The plaintiff claims that by force of the statutes of this State the premiums paid by the deceased Parker within three years of his death belong to the estate as assets for the payment of debts. We do not think this claim can ...
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This is a bill in equity, in which a creditor asks that real estate, conveyed to a wife but alleged to have *544been paid for by her husband, be made available for the payment of a judgment recovered against the husband prior to the purchase of such real estate. The cause was heard by a single justice sitting in equity and a decree rendered in favor of the plaintiff in accordance with the form sug...
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This is an action to recover five hundred dollars subscribed by the defendant towards the building of a meeting house. At the trial in the court below, the defendant offered to prove that, when he signed the paper declared on, it was with the understanding on his part that a Mr. Davis should subscribe for an equal amount, and that he (the defendant) should not be required in any event to pay more ...
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The County Commissioner’s of Cumberland county, upon an appeal from the refusal of the selectmen, laid out a town road in Harpswell. This action of the commissioners was upon appeal affirmed by this court, and the certificate of affirmance sent down May 31, 1886. Within the limits of the road thus located, the plaintiff had prior to the location placed some amount of stone, timber and earth, with ...
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The plaintiff seeks to eject defendant from certain real estate, held by tenancy at will that was terminated by notice on October 30, 1890. The defendant was in under a lease for one year that expired December 31, 1889. The evidence fails to show a surrender of the possession at the expiration of the term. The defendant thereafterwards, by foi’ce of statute, R. S., c. 73, § 10, held as tenant at w...
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Upon the application of the Shelton Company for a re-assessment of damages, the judge of the Court of Common Pleas for New Haven County appointed a committee, who made a report against which the respondent borough remonstrated, and thereupon the questions of law arising were reserved for the advice of this court. There were two grounds of remonstrance. It appears from the report that the petitione...
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This is an action for the conversion of persona, property. The defendant in his answer denies that the goods sued for were the property of the plaintiff. In his second defense he alleges that he was a deputy-sheriff for New Haven County; that the goods were the property of William M. Reynolds, or of his wife, Jessie Reynolds; and that he took and now holds them under lawful writs of attachment to ...
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This is an action to recover for the care and support of Francis Naylan, a pauper, from June 26th, 1888, to December 4th, 1888. The finding is in part as follows: – Francis Naylan, the pauper in question, was an alien, and *Page 590 came from Ireland to this state about 1867 or 1868. From that time down to the death of his sister, Mrs. Parkinson, which occurred August 26th, 1884, he resided with ...
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The defendant was convicted on an indictment for keeping a liquor nuisance in a building comprising a portion of his dwelling-house. His motion in arrest of judgment having been overruled at nisi prius, he urges his objection against the indictment and challenges the correctness of one instruction to the jury. 1. Revised Statutes, c. 17, § § 1 and 2, do not " cover eleven distinct offenses,” as co...
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An exception was taken, at the trial, to the admission of a record of the conviction of the respondent as a common seller of intoxicating liquors, recovered twenty-seven years ago, and introduced for the purpose of impeaching the credibility of the respondent as a witness in his own behalf in the present prosecution for a similiar offense. It is claimed that so ancient a record is not admissible f...
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This is a writ of entry in which the plaintiff demands possession of township No. Eighteen, Middle Division, Bingham Purchase, in the county of Washington. The defendant disclaims all interest in the premises except a lot situated in the south west corner of the township, comprising fifty acres of upland and all that part of Schoodiac pond lying in township Eighteen. Both parties claim to own this...
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The questions of law arising on the record which the defendant has presented on its brief for review, are these: – 1. Did the act of 1872 amending the charter of the city of New Britain intend to confer upon the city the right to use Piper's Brook for sewer purposes? 2. If it did so intend could the legislature lawfully confer such power? 3. Is it sufficiently alleged in the second defense that th...
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In 1851 John W. and Benjamin F. Brown owned a piece of land in New London fronting on the river Thames and lying between that river and Bank street. On the river front was a wharf and docks, and between the wharf and Bank street was about an acre and a half of land used by the Browns in carrying on a coal and wharfage business. The wharf was then very valuable, but less so than at present, because...
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The opinion of the court was delivered by One of the requirements of the statute directing the mode of entering judgment on bonds with warrants ■of attorney to confess judgment, is, that the affidavit shall set forth that the debt or demand, for which the judgment is confessed, is justly and honestly due and owing to the person or persons to whom the judgment is confessed. The position taken by t...
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Pee Curiam. Three questions were presented and decided in this ease— first, whether the statute (Rev., p. 355, § 100 et seq.) invested the Circuit Court with the jurisdiction it assumed to exercise; second, whether the judge of the Circuit Court erred in permitting one Louis Weil to give his opinion, as an expert, upon the question whether certain ballot box machines made the marks which appeared ...
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Cynthia C. Beale, in her last will after making sundry particular legacies, devised the remainder of her estate to the executor and trustee therein named, "in trust, however, for the following purposes, that is to say: said trustee shall take, hold, raanag'e and invest all the estate which shall come to his hands and possession under this clause of my will, in such manner as he shall deem for the ...
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The judgment in this case is affirmed, for the reasons given by the court below. For affirmance—The Chancellor, Chief Justice, Depue, Knapp, Scudder, Van Syckel, Clement. 7. For reversal—Dixon, Magie, Bogert, Brown, Smith. 5.,...
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The complainants undertake, by this bill in equity, to collect a debt due them from the J. Way land Kim-ball Company, a corporation doing business in this State, out of certain personal property mortgaged by that company, it is alleged, in fraud of creditors. The mortgagees and others in present possession of the property are made, with the mortgagors, parties defendant, all of whom demur to the b...
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This is an action to recover damages for an assault and battery. The plaintiff has obtained a verdict for fifty dollars, and the case is before the law court on motion and exceptions by the defendant. The evidence satisfies us that the plaintiff’s injuries were received while he and the defendant were engaged in a voluntary fight. The defendant contends that he acted only in self-defense. But the ...
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The payee of a negotiable promise in writing, who transfers the same by indorsement, either before or after maturity, whether it be strictly commercial paper or quasi such, that is, negotiable in form but lacking some elements of such paper, as town orders, always subject to equitable defenses whosoever the holder may be, thereby guarantees both the genuineness of the writing and the validity of. ...
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The judgment in this case is affirmed, for the reasons given-by the court below. ■ For affirmance—The Chancellor, Chief Justice,. Depue, Dixon, Knapp, Magie, Reed, Clement, Smith,, Whitaker. 10. For reversal—None....
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During the evening of October 9, 1889, as the plaintiff and her husband were riding in a covered buggy, they came up behind a jigger standing on the easterly side of Gannett street in Augusta; and, in attempting to pass the jigger, the husband drove over an embankment on the westerly side of the street, and the carriage was upset, and the plaintiff thereby injured. For this injury she has recovere...
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The plaintiff on the 25th day of March 1891, made application to the Superior Court in Hartford County, praying that a writ of peremptory mandamus be issued, commanding the defendant, who is the comptroller of the state, to draw his order on the treasurer in favor of the plaintiff for the sum of sixty-six dollars and sixty-six cents, which sum the plaintiff claimed was due to him on the first day ...
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Opinion by It was incumbent on the plaintiff to show not only that there was want of probable cause for the prosecution, but also that there was malice on the part of the prosecutor. Want of probable cause and malice must concur. While the former is evidence of malice, proper to be submitted to the jury, it does not establish legal malice to be declared by the court. Malice may be inferred from t...
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Opinion by In 1888, the leasehold in controversy, then owned by Mrs. Candis M. Dickson, wife of Henry Dickson, was levied and sold by the sheriff to John A. McGraw, who, in 1889, for the consideration of $ 1.00, sold and assigned the same to his mother by whom the defendants were put in possession. In 1890, the same leasehold was again sold by the sheriff on a judgment against Mrs. Candis M. Dick...
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The first specification alleges that the court below erred in the answer to the defendant’s first point. The learned judge affirmed the point as a matter of law. He qualified this affirmance, however, by saying that “ if the facts be as Mr. Rodgers, the defendant, testifies to, there was nothing in the attitude of Mr. Rhodes to justify any belief or reasonable apprehension that ho, Rodgers, was ab...
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Opinion by Suit was brought against defendants as general partners doing business in the name of “ D. W. C. Carroll & Co., Limited.” In his statement and affidavit of claim, plaintiff alleges that defendants are justly and legally indebted to him in the sum of $3,642.20, for lumber and material sold and delivered by him to them. The defence was, “ That nothing is due to plaintiff from deponents o...
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Opinion by For many years prior to commencement of this suit, plaintiff owned a house and lot fronting on Haines street between Stenton avenue and Limekiln pike, now in the 22d ward of Philadelphia. Prior to 1761, what is now Haines street was an old road. In that year a jury of view, appointed by the court of quarter sessions, reported said road, with courses, etc., but without any fixed grade, ...
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Opinion by This case was argued with O’Brien v. City of Philadelphia,’ Apt., No. 355 of January Term 1892, [the preceding case,] and depends on substantially a similar state of facts, except in this, that plaintiff erected a house on his lot after the confirmation of the plan of 1871, fixing the grade of Haines street. The learned trial judge', however, rightly excluded injury to said house as an ...
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Opinion by In his statement of claim, plaintiff alleges that in grading a portion of Wood street in 1891, pursuant to an ordinance of councils, the city defendant excavated the bed of said street in front of his property to a depth varying from four to eleven feet, thereby leaving said property so far above the level of the street as to render it inaccessible for ordinary use, and thus injuring it...
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Opinion by On Saturday the 17th of September, 1887, the appellant received from the appellee at its office in NeV York one hundred dollars to be paid to the Philadelphia National Bank and one dollar and forty cents for its services in making the transfer. It appears from the evidence produced on the trial that the Philadelphia Bank held the appellee’s note for §87.25 which was payable on that day,...
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This is an action to foreclose a mechanic's lien. E. R. Bishop Co. purchased a lot of land on which they proposed to erect three dwelling houses to rent. The houses were erected, the plaintiff, under an agreement, furnishing materials for that purpose. In a suit to foreclose his lien, others who claimed liens on the premises were made defendants. In their answers they also claimed foreclosures of...
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Opinion by While this is a close case, we are of opinion' that the auditing judge was correct in his conclusions, and that the court below erred in overruling him. I understand it to be conceded that the trust created by the will of Emily W. Cooper was an active trust, and that its purpose was entirely legitimate. The cestui que trustent, with a single exception, are willing that the trusts shall...
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Opinion by At the point where the accident in this ease occurred, the road was upwards of thirty-three feet in width. On the one side of the road, and next the fence, there was a long narrow pile of stones about one hundred and fifty feet in length, about five or six feet in width and about eighteen inches in height towards the road and sloping backwards to about two feet in height at the fence. T...
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Opinion by The question on which this case turns is one of considerable practical importance, and in this state it seems to be an open one. The learned trial judge finding no precedent in our own reports to guide him turned to the English courts, and followed what he believed to be the rule held by them. He stated at the same time that the question was one that could “ only be settled by a decisio...
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Opinion by This case hinged mainly on questions of fact which were exclusively for the consideration and determination of the jury. These questions, together with the evidence relating thereto, were fairly submitted to them by the learned president of the common pleas in a clear and comprehensive charge to which, as a whole, no just exception can be taken. A verdict having been rendered for the pl...
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Opinion by The learned judge below instructed the jury to find a verdict for the plaintiff subject to the reserved question whether there was any evidence in the case to sustain such verdict. Subsequently he entered judgment for the defendant non obstante veredicto. The learned judge was of the opinion that Sarah Bomberger took but a life estate in the land in question under the will of her husban...
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Opinion by That a material alteration of a contract without the consent of the sureties will discharge them is a principle which is not disputed. But the appellant contends that the sureties in this case arc not discharged, because, first, the agreement between him and Deckerhoof on the 26th of September, 1888, is not an alteration of the contract of June 19,1888, for the due performance of which ...
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Opinion by In September, 1886, the plaintiffs were in possession of a lot at southeast corner of Filbert street and Schuylkill river—part of the city gas works property—fronting about one hundred and fifty feet on said river and extending back about sixty feet, on which valuable machinery was erected for the purpose of distilling crude tar made by the gas works. They were then engaged in the pros...
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Opinion by For reasons satisfactory to the court, the judgment, to be entered in this case, was not finally agreed upon until the close of our last regular session in the eastern district. While the questions raised in the court below and here are quite numerous, the case clearly hinges upon a few undisputed *178facts and controlling questions of law which have been argued \\yith great zeal and ab...
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Opinion by The facts of this ease, found by the learned master and approved by the court, together with the questions arising thereon, are fully and clearly presented in the record. The controlling questions are substantially the same as those in Harrisburg v. Segelbaum, No. 18 May Term 1891, in which an opinion has just been filed. [The preceding case.] In view of what has been said in that opini...
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Opinion bv It cannot be doubted that the uncontradicted evidence in ehief of the beneficial plaintiffs made oüt a prima facie case against the defendant as one of the sureties of the Meadville Railway Company. Defendant’s contention was that he was released from that liability by an agreement to give further time to the company for the payment of its debt to Thomas Van Horne, the legal plaintiff,...
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Opinion by We find nothing in either of the thirty-eight specifications of error that requires the reversal of this judgment. The alleged negligence of the defendant, which is claimed to have been the proximate cause of the injury complained of, was so clearly established by the evidence that the jury could have little if any difficulty in finding the fact in favor of the beneficial plaintiff. The...
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Opinion by The plaintiff seeks to recover dower in one hundred and eighty-five acres of land having farm buildings and a gristmill thereon. The title was in her husband Nathaniel Zimmerman, at the time of his death in' February, 1888. Her father, J ohn Hoffman, administered upon her husband’s estate, and sold the farm, of which he died seized, for the payment of his debts. The sale was made under...
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Opinion by The very able and earnest argument of the counsel for the appellants has failed to convince us that the learned court be*297low erred in finding that the appellees are the legitimate children of Joseph W. Drinkhouse, deceased. The auditing judge found the facts of a courtship of years followed by a marriage between the deceased and Maria Heaton, the mother of the appellees; the presence...
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Opinion bx We are not satisfied there was any error in making the interlocutory order from which this appeal was taken. The controlling question in the case cannot be properly disposed of until final hearing on bill, answer and proofs. In the meantime, no irreparable mischief can be done to defendants. Decree affirmed and appeal dismissed, with costs to be paid by appellants, without prejudice to ...
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Opinion by For the reasons given in Estate of William Drinkhouse, deceased [the preceding ease], and for the further reasons given by the learned court below the decree is affirmed....
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Opinion by As set forth in its statement filed, the plaintiff’s claim consists of two items ; the first of which is for $200 with interest from March 28, 1890, and is based on the following facts : On November 23, 1889, the plaintiff bank discounted for Wm. C. Keller a note made by defendant to the order of and indorsed by said Keller for $200, at sixty days from said last mentioned date. When tha...
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Opinion by When the testator prepared his will five of his seven children *27were living and two were dead. Of these, Sarah was represented by three living children, Isabel, Edward, and Ada, and by a grandchild Sadie, daughter of her deceased daughter Abby. Fanny was represented by two surviving children, Abby A. and Amelia L. By his will the testator gave the whole of his estate to his wife for l...
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Opinion by The appellant company was incorporated by the act of assembly of April 17, 1861, with power to construct a turnpike road from Vine street, in the city of Lancaster, along and upon Rockland street, through said city1-, to the Conestoga creek, and thence to Mill creek in said county. The road was completed in 1869, from Vine street, in the city of Lancaster, the place of beginning, design...
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Opinion by This case was heard on the petition and answer thereto; and, in December, 1890, the citation prayed for was refused. Nearly three months thereafter, a replication was filed by leave of court, and an application, then made, for a rehearing, was denied. The only error assigned is the refusal of the court to award the citation. Appellant elected to set the cause down for hearing on petitio...
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Opinion by This scire facias issued on a municipal claim for constructing a sewer in Tenth street, between State and Sassafras streets, city of Erie, the cost of which was assessed, according to the foot front rule, on property fronting on that portion of said Tenth street. Assuming that the proceedings, leading up to the assessment, filing claim, etc., were regular, and that prima facie its prope...
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We are not convinced that there is anything in either of the specifications of error that requires a reversal of the judgment entered on the verdict in favor of plaintiff. His right to recover depended upon questions of fact which were necessarily for the consideration and determination of the jury. Those questions appear to have been fairly submitted to them under adequate and proper instructions...
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Opinion by It is contended that the learned court erred in holding: 1st. “ That the appellant corporation was not authorized to lay any track on Germantown avenue.” 2d. “ That the consent of the councils had not been given to appellant for the construction of the extension authorized by the act of March 22, 1865.” The facts of the case, in connection with the acts of assembly and ordinances of co...
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Opinion by This bill was filed by the Germantown Passenger Railway Co. and its lessee, The Peoples Passenger Railway Co., against appellant company to restrain it from laying any railroad track on -and along Germantown avenue, formerly “ Germantown road,” from a point-feet north of Tenth and Cumberland streets—where said Tenth street connects with said avenue, to Indiana street, a distance of abo...
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Opinion by The first error assigned, and that to which the arguments of counsel were mainly directed, is that the learned court below, reversing the master, found that the deed of George R. Boak and wife to the defendants, though absolute upon its face, was intended as a security for the payment of money. Counsel do not differ as to the principles by which the court should have been guided when d...
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Opinion by in No. 17 May T., 1892. This cause was submitted to the decision of the court below without a jury under the act of 1874. In such cases it has *274been repeatedly held that the findings of fact are no more reviewable by this court than is the verdict of a jury: Jamieson v. Collins, 83 Pa. 359; Lee v. Keys, 88 Pa. 175; Brown v. Dempsey, 95 Pa. 243; Commonwealth v. Railroad Co., 104 Pa. ...
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The judgment is affirmed upon the opinion of the learned judge of the court below....
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