Subject. Page. Subject. (1) That the county was a municipal corporation under the Act of April 17, 1905, P. L. 183, and (2) that the schedule of rates was a rental and not a license fee, and (3) that the court was without jurisdiction, and petition dismissed. A bill in equity asking that an award of a contract by a municipality under competitive bidding be set aside, will not be considered in the absence of fraud where there is no allegation of a willingness to bid as low or lower than the successful bidder A filed a bill in equity setting forth that defendant B had assigned to her his interest in the estates of his father and mother as well as all claims against his guardian, that on citation by B the guardian had filed an account in the Orphans' Court and that Court had audited the account and directed distribution of the money to other parties. and asked for an injunction 12. straining B from taking any proceedings for the settlement of any of the estates, that the guardian be directed to turn over to A 11 monies of B in his hands, and the proceedings in the Orphans' Court be postponed until the merits of this case were determined. Held: On demurrer that the Orphans' Court had exclusive control of the accounts of executors and guardians, that A could have gone into that Court with her claim and while she had a right to sue in the Common Pleas, she could not make any lain. there on a fund over which the Orphans' Court had already assumed jurisdiction. The demurrer was sustained A court of equity could not compel the contractor to complete his ontract and bill dismissed as to him, plaintiff having an adequate remedy at law for damages.. Where there was no evidence of bad faith or misconduct on the part of the trustee the deed should not be cancelled, however, until proper arrangement had been made for the re-imbursement of the trustee for Plaintiff filed a bill to have declared illegal an ordinance for the construction through her property of a sewer to drain a certain designated property owned by a single owner for the reason that the preamble of the ordinance designated the owner by name and for its use and did not recite that the sewer was to be public. Held, The fact that the preamble merely designated that the sewer was for the use of the owner of the land to be drained, and did not specify that the sewer was for public use was immaterial. when the enacting part of the ordinance clearly stated that the sewer was to be public In a dispute over the marble in the erection of a school building, it did not appear that the substitution of "pink" for "white" would inflict irreparable damage for the quality was admittedly up to the standard required by the specifications, the controversy related rather to color than quality, beauty than utility, 401 469 413 481 491 494 513 Page. taste than substance, and if any damage resulted there was an adequate remedy at law. Bill dismissed Equity has jurisdiction and a mandatory injunction will issue to have the obstruction removed where township commissioners obstruct a natural waterway Parties seeking the protection of equity must be willing to do equity and must satisfy the conscience of a chancellor by a fair preponderance of credible testimony, otherwise the regularity and legality of a judgment prevails and a rule to open a judgment will be discharged....... EVIDENCE. See also Trial; New Trial. Conflicting, evidence as to location of a township road, is a question for the jury The uncorroborated evidence of libellant is not sufficient to support a decree in divorce for cruel and barbarous treatment when the libel alleged desertion A judgment confessed on a lease will not be opened where the evidence is contradictory A photograph offered in evidence in a personal injury case showing the location of the accident but taken several weeks afterwards and showing a changed condition in the location different from that at the time of the accident is inadmissible in evidence In a municipal improvement case, a witness who is incompetent to testify as to the market value of property cannot as a distinct fact without reference to other testimony, testify as to the rental value of the property during the last ten years. In an action to recover damages from a municipality for change of grade of a street resulting in the land being twenty-five feet above the grade as changed, instead of fifteen feet above the change. evidence by the plaintiff of the cost of grading made necessary by the change of grade in order to make the same use of the property as before, is inadmissible 712 705 775 5 13 39 42 65 92 339 The Act of March 27, 1913, Section 4, P. L. 14, does not permit a husband and wife to testify against each other indiscriminately, no matter by or against whom the action may be brought, but only in cases where one sues the other for the protection of her separate property. Where plaintiff testified in an action of trespass that he had not suffered the effects of the injuries complained of prior to this accident, it was competent on cross-examination to show that injuries sustained in previous accidents wherein plaintiff had testified as to permanent injuries was competent, this going to establish the measure of damages.. 844 The evidence requiring the granting of a particular liquor license may consist of the weight of applicant's petition, so the evidence requiring the refusal of a particular license may consist of the remonstrance and its preponderating weight over the petition and the general presumption of necessity. In the latter instance, the application is properly refused "for cause shown." 449 In an action for damages on account of injuries to a passenger on a street railway car, the evidence of negligence on the part of the plaintiff was that the car stopped with an awful jerk, and another witness testified that the jolt was such as Page. Subject. 514 Subject. to throw her towards the front of the car and almost throw a child out of her arm. Held: That the testimony showed the jerk was out of the ordinary and was unusual and extraordinary and supported the charge of negligence Flight, in connection with other circumstances, at a murder trial, may be taken as an evidence of guilt.. 523 Defendant accused of robbery was one of four arrested for the crime. When testifying in his own defense, he set up an alibi. Two of the others, tried later, set up an alibi, and the third said he happened upon the scene at about the time the officers arrived and was apprehended. All denied knowledge of the crime. When called for sentence defendant, after all had been together in jail for a time, admitted his guilt and stated that none of the other three had been associated with him in the robbery. Held, That one testifying in his own defense is under the same obligation to tell the truth as any other witness, and defendant was unworthy of belief, and should be prosecuted for perjury by his own The prosecution offered testimony that the defendant could have adopted measures to have prevented the pollution complained of. Defendant offered evidence in rebuttal. Held: That when the prosecution assumed this burden, it was bound to prove its contention like any other fact, and there could be no conviction when the proof did not bring it clearly within the proviso in the 16th Section of the Act of 1909.... 689 In a proceeding to declare a person weak-minded, respondent cannot be called as a witness by petitioners as for cross-examination against his wish. as respondent is not voluntarily in court; nor can there be any compulsory process to compel an alleged weak-minded person to submit to a public examination by adverse parties in a proceeding not instituted by himself but against himself; nor will the court make an order at the request of petitioners, permitting medical experts. who had previously examined respondent, to examine him further as to his mental condition. EXCEPTIONS. See Appeal and Error: Courts: View ers. EXECUTION. See also Judgments. 769 Page. 176 Proper state officials exempted from payment of special tax on purchases of opium The property was that of B individually, and he was entitled to claim the exemption therefrom, when a partnership was dissolved and the firm went into bankruptcy........ 329 EXPENSES. See Costs; Fees. FEES. See also Attorney and Client; Costs. When counsel fees will be permitted, guardian for weak-minded person... FEMALE EMPLOYES. 607 Under the Female Labor Act of July 25, 1913, a schedule for telephone operators, which does not require or permit females to work more than six days in any one calendar week, beginning with Sunday, and is not required or permitted to work more hours than stipulated, sufficiently complies with the Act in object, purpose and spirit, of this as well as similar legislation, which involves the human and humane element in the lives of employes.. The Act of July 25, 1913, P. L. 1024, relating to the employment of females, prohibits those who are paid by the piece, after working full time in an establishment, from taking home work to do in the evening and deliver it finished at the establishment later. The act does not prohibit household work or other work in her own home, provided it is not in connection with the establishment in which she is employed during the week...... 698 FINES. See also Criminal Law. The payment of a fine resulting from a conviction under the Sunday Law of April 22, 1794, and fixed at $25 for Allegheny County by the Act of April 26, 1855, is not payable to the County under the Act of 1794, but is payable to the state sinking fund under the Act of May 15, 1850.... 119 FIXTURES. See Landlord and Tenant. Plaintiff issued a writ of foreign at- 640 686 Page. Subject. Plaintiff issued a writ of foreign attachment to attach certain property of defendant corporation and alleged that it agreed to become the exclusive agent for defendant in the sale of oranges and cantaloupes for a stated commission in the Pittsburgh district whether sales were made by plaintiff directly or indirectly through customers. For oranges sold $3,000 commissions and for cantaloupes $1,000 commissions were claimed. In addition plaintiff claimed $7,500 commissions on goods ordered but never shipped by defendant; and as the contract had been merely cancelled without giving ten days' notice required, an additional $1,500 was claimed for goods that might have been sold in that period, and $1,500 general damages for the unlawful cancellation of the contract. Held: That there was no justification for the $1,500 general damages for cancellation of the contract, nor for the $1,500 for goods that might have been sold, as this was not the proper measure of damages. A rule to dissolve a foreign attachment will be discharged when plaintiff's statement sets forth a good cause of action. FOREIGN CORPORATIONS. See Corporations. FRAUDS. See Statute of Frauds. GAME. Special deputies employed by the Board of Game Commissioners are not entitled under the Act of April 21st, 1915, to a division of the penalties provided by that act for the violation of fish laws.. The duty of forest rangers, game and fish wardens, with their deputies, is to enforce any violation of the laws relating to forestry, fish and game, although such infraction may not occur under the department to which they are attached. Subordinates are under the control of the respective commissioners, but they are to observe any infraction of law relating to the other depart ments County Commissioners have no authority to direct the discharge of prisoners convicted of violations of the game laws, and the release of a prisoner before he has served a day for each dollar of fine imposed, renders the sheriff and his bondsmen liable of 719 795 368 496 458 has The Commissioner of Forestry no authority to permit owners or lessees land immediately adjacent to and connected with State Forest Reserves to hunt upon the latter; nor is anyone exempt from hunter's license, except bona or lessee of cultivated lands, who resides thereon; nor can he grant exemption from any of the provisions of the game laws....... 631 GARNISHEE. a fide owner See Arbitration; Attachment. GAS. See Oil and Gas. GASOLINE. See Injunction. GRAND JURY. a The Grand Jury in determining questions of fact under the Act of May 11th, 1909, is in a measure a selfgoverning and independent tribunal authorized to hear and de termine the cause upon such testimony as may have in their judgment been pertinent and relevant to the matter before them. The evidence submitted is not limited by the hard and fast rules of evidence as are formal proceedings at law, and therefore, where the material questions of fact have been fully presented to the Grand Jury, its findings will not be disturbed by exceptions based upon the fact of incompetent and immaterial statements made by witnesses, when it does not appear that such statement in any way improperly influenced their finding. GUARDIAN AND WARD. See also Costs; Fees, In a proceeding to have a guardian appointed on the ground of weak mental condition instituted by one interested in the estate, the petitioner having shown that the proceeding was proper and a guardian should be appointed, will be allowed a reasonable counsel fee, but the Court will carefully supervise all claims for expenses.. The legal residence of an inmate of an orphanage is retained in the school district in which its guardian lives and the payment of the expenses of education can be provided for in the district where the orphanage is, in the manner provided by the Act of May 9. 1913, and in no other way.. The Act of May 28th, 1907, providing for the protection of insane persons, feeble-minded persons and epileptics and for the appointment of a guardian for such persons and the care of their property, was intended to protect persons who are at the time of the inquiry unable to protect themselves, and the act should not be construed to deprive owners of the free control of their property for the purpose of conserving it for the benefit of those who may ultimately inherit it. It is the mental condition of the perSon at the time of the hearing which determines whether the act is operative HABEAS CORPUS. a commu Plaintiff in a habeas corpus proceeding was convicted in March, 1902, and sentenced to five years in Не prison. received a commutation of one year and six months, In March, 1906, he was again convicted and sentenced to five years' imprisonment, receiving tation of one year and five months, but was compelled to serve out the term of the previous commutation and was discharged on April 1, 1911. He was again convicted on August 21, 1911, and sentenced to a term not exceeding three years. Held: That as the last conviction was after the end of the term of the second sentence, the Act of 1901 did not apply even though the second term was extended by reason of serving out the commutation in the first sentence, and plaintiff was entitled to bis release at the expiration of the period of his third sentence..... The relator had no right of appeal from the judgment of the Quarter Sessions Court on the habeas corpus or from the order of commitment to a higher court. She was not confined awaiting trial under State laws, but was held on an absolutely void proceeding. It was, therefore, 209 95 233 23 HIGHWAYS. See Streets and Roads. HOLIDAYS. See Sunday. HOMICIDE. See Criminal Law. HOSPITALS. See Criminal Law. HUSBAND AND WIFE. A contest over the title to real estate between a trustee in bankruptcy, under the National Bankruptcy Act of July 1, 1898, and the wife of the bankrupt, who alleges rightful ownership and title to the real estate, which had been deeded by her to her husband nearly a year prior to the adjudication of his bankruptcy, where the wife asserts the deed made by her to her husband to be null and void because she was compelled to execute and acknowledge it by the coercion, force, intimidation, and threats of her husband, who afterwards deserted her, is to be determined in the court of common pleas of the county in which the real estate is situated, and not in the Federal courts In proceedings in the Orphans' Court to surcharge administrators because they had not accounted for the amount of the curtesy which the estate of the decedent was entitled to receive from his deceased wife, it was contended that no curtesy could be collected for the reason that the decedent's wife had become a femme sole trader and as proof there was offered in evidence a certificate under the seal of the court of common pleas purporting to be a copy of an original decree certified to by the prothonotary that it was "taken from the records." All the papers in the proceedings, including the alleged decree, were lost and the docket record did not show that any decree of the court was ever made. Held: First. That such averments involved a jurisdictional fact necessary to the entry of the decree and the Orphans' Court has the right to examine the record relating to the proceedings and set it aside for irregularity. Second. That in the absence of such averments which are jurisdictional in their nature, there was no ground to give validity to the certificate and its issuance was void because the court of common pleas had no jurisdiction over the petition of the decedent's wife and could not make her a femme sole trader. Third. The administrators of the decedent must be surcharged with the net rents, issues and profits of the estate of the wife from the date of her death until the date of the death of the de 52 78 37 The lessor had secured against the assignee of B, a preliminary injunction restraining the removal of the articles found to belong to the tenant and had then removed and sold them. Upon the finding that they were trade fixtures and removable by the defendant, the latter asked the court to assess in the injunction proceedings the value of the fixtures 80 taken. Held: That the defendant had no right to have his damages so assessed and was relegated to a recovery in a suit on the bond accompanying the bill given at the time the preliminary injunction was granted.... Equity has no jurisdiction to restrain borough officials from maintaining signs on its streets not in accord with the law regulating automobiles Subsequent purchasers of the land, with actual knowledge of the use being made of a water course by the railroad company, and with evidence on the ground of the existence of the pipe line. take the land cum onere, and will be restrained by injunction from tearing up the pipe line or in any manner interfering with the accustomed use of the water by the railroad company 353 794 9 59 137 Plaintiff was engaged in a built up part of a city in purchasing old barrels, repairing, recoopering and selling them. There was removed each day from the barrels purchased certain material which was first burned upon the premises and, subsequently, at the request of the fire marshal, were removed and then destroyed. There were no buildings on the immediate boundary line of the land used by the plaintiff but there were buildings in fairly close proximity. The location of the plaintiff's factory, near the manufacturing part of the city and near the railroad, was necessary for the successful transaction of his business. The fire marshal deemed the conduct of such a business in this vicinity to be dangerous and directed its removal to another locality. Held: That the removal of the inflammable material from the premises each day reduced the danger of fire loss and that with proper fire protection the premises were reasonably safe and the plaintiff was entitled to use them for the purposes of his business and that equity would enjoin the fire marshal from compelling the plaintiff to remove his business... 250 381 A preliminary injunction on a bill to prevent the erection and maintenance of a gasoline tank, in which to store and from which to sell gasoline, on the allegation that the same will be a nuisance, dangerous to life and property, on account of the liability of explosion, will be dissolved where the court finds the facts to be that the tank when erected, equipped and maintained, in the manner and at the location proposed, will not be unduly dangerous to life or property and will not constitute a nuisance. The court will restrain by permanent injunction an ice dealer who sold out his business, receiving a valuable consideration therefor, and entering into an agreement not to engage in said business in his own name or as agent for another for a period of three years within a limited and defined territory from violating the terms of his agreement.. 392 In a bill in equity to enjoin the noisy operation of machinery in a junk shop where it appears that the operations caused discomfort to an extent that would warrant a restraining injunction, if not in a reasonable degree minimized, an injunction will not be issued to abate the nuisance, if defendant files a stipulation to operate his plant in cordance with certain specific requirements fully set forth.. Plaintiff filed a bill to restrain defendants from erecting a garage on their half of a 20-foot alley shown on a plan. The alley was laid out by a predecessor in title to defendants and was described in the deeds as "abutting upon a 20-foot alley for the common use of property conveyed and other property of said Collingwood." One end of the alley abutted on the private property of plaintiff forming a "cul de sac." Held: That as the alley had never been opened it was not a public highway ac References to a certain private road in defendant's chain title included the following: "to a point at the corner of a private road,' "thence along a certain road or lane between the land herein conveyed and the land of etc." Plaintiff entered into an agreement with Mueller, one of the defendants, to construct a gas main from the public road along this private road and across part of her farm, when defendant interfered and the contractor refused to go on with the work. Plaintiff led this bill to enjoin defendant from interfering with the work and joined the contractor as a defendant in a claim for damages. Plaintiff claimed the fee in this private road which claim was denied by defendant. Held: Plaintiff owned the fee and was entitled to an injunction. Defendant did not buy subject to an easement.. equity court of will enjoin the driver of a laundry wagon, covering a specific route. from entering into the employ of a rival concern. where a written agreement provided for a salary per week and commissions, and the agreement further "That stipulated the company might terminate his employment at any time upon one week's notice or pay him a week's salary, and that upon the termination of his employment he shall turn over all books and memoranda which he has, and that he will not while in the employment of the company divulge A 393 437 481 Subject. and 499 Page. ог make known to anyone the names of the customers and that for one year immediately after his discharge or quitting the employment, he will not make known these customers, nor will he either directly or indirectly for himself or any other person or firm, solicit any of the business or patronage of the company or persons upon whom he called or solicited while in its employ." 485 Defendant owned land abutting on a public highway in the township and when the plaintiff attempted to erect poles in front of defendant's property, interfered with the plaintiff, caused the arrest of plaintiff's employees and tore down a number of poles already erected thereby preventing the building of the line according to the contract. Plaintiff filed a bill for an injunction. Held: Plaintiff had no authority to erect its poles without paying compensation to the abutting property owners and bill dismissed.. Defendant purchased a house in a residential district, remodeled enlarged it, and installed a 15-horse power gas engine and heavy machinery as a printing establishment. Plaintiff, owner of an adjoining house, filed a bill for an injunction, claiming the operation of the machinery caused serious damage and injury to her property and that the noise from the machinery, often at night, rendered her home unsuitable for a residence, and depreciated its rental and market value. Held: Plaintiff's bill set forth a good cause of action and that she was entitled to relief to the extent necessary to protect her property from injury, and the continuation of the Jarring, shaking and unnecessary noise as operated, and that an injunction should issue.... Plaintiff filed a bill to restrain defendants from conveying and for an accounting, alleging an oral agreement by which the owner of the property had agreed to convey the same to her, but which was held at the time of the suit in the name of one of the defendants as trustee. It further appeared that one of the defendants had agreed in writing to convey or cause to be conveyed said property upon the payment of a sum certain in monthly installments. Held: That the transaction amounted to an equitable mortgage of the equitable title acquired by plaintiff by her contract with the original owner, but, in the absence of a written defeasance, and plaintiff not having paid or offered to pay the installments agreed upon, the demurrer would be sustained Municipal authorities, through the chief of police, directed the management of a theater not to present a photo-play, which was being advertised, on the ground that the proposed exhibition would arouse race prejudice and hatred and tend to disturb the peace. The management of the theater filed a bill in equity to restrain the city authorities from interfering with the production. The State Board of Censors had this approved motion play. Held: That the interposition of the police power of the city to prevent a theatrical production is such an unusual exercise of such power that it can be sustained only on the theory that it is either subversive of public morality, or apt to cause a breach of the peace... 528 535 625 |