SO 665 705 A Board of Commissioners of a township of the first class has no power to change the course of a natural stream of water whereby it is diverted from its usual course. that it will run along the side of a public road. Roads are built for the accommodation of public travel and not for providing new channels for natural water ways and an injunction will be granted.. Specifications for a school building called for marble, specifying "Appalachian Grey Tennessee Marble" for the vestibule and for "White Tennessee Marble" for certain other portions of the building. Defendant was the general contractor, and when he sub-let the marble work, the sub-contractor called attention to the fact that there was no such marble as "White Tennessee." Samples were submitted to the architect, who selected "Pink Tennessee" for the panels and wainscoting and "Gray Tennessee" for the base and crown moulding. A bill was filed to restrain defendant from proceeding further with the work. Held: That as there was no "White Tennessee" marble known to the trade literal performance of the contract was impossible, and as there was no evidence that the subcontractor had not acted in good faith, after the marble had been approved by the architect, the court would not grant an injunction...... 712 B, a sign painter, contracted with a lessee of certain houses for the exclusive use of the roofs of said houses for advertising purposes for ten years. Subsequently the lessee assigned the leases and the assignee contracted with the sign painter C for the use of the walls of the same houses for advertising purposes. After C had sold the space on the walls and had placed a sign thereon, B attempted to remove C's sign, when a bill was filed for an injunction. Held: That equity had jurisdiction and under the pleadings and evidence an injunction would issue, as irreparable injury is not one that can be measured by a pecuniary standard, but is one that ought not to be inflicted 721 Plaintiff, the Rabbi and congregation of a Hebrew synagogue, filed a bill to have defendant enjoined from entering the synagogue. Defendant was a member of the congregation. He had taken great personal dislike to the Rabbi so that for a period of three or four years he, at various times, visited the synagogue and during the services would cause a disturbance by his unruly acts and by publically calling the Rabbi vile names. Held: That as the arts of the defendant were of a continuing character and prejudicial to the plaintiffs, equity had jurisdiction to restrain and enjoin defendant from insulting or molesting the Rabbi and from entering into the synagogue or upon the premises of the congregation. Injunction issued.... 764 Subject. INSANITY. See also Constitutional Law. Page. It is proper for the Common Pleas Court in a case where a person has been committed by the Quarter Sessions for insanity, upon a habeas corpus proceedings to pass upon and determine the question of insanity B executed a note and discounted it at the plaintiff bank. The proceeds were deposited to his account and checked out by him in the ordinary course of business. The bank had no knowledge as to the final application of the money or of the insanity of defendant. In an action on the note, the defense was insanity on the part of the maker. Held: That as B had received full consideration for the note, he was liable for the amount of the note, with interest INSOLVENCY. See also Bankruptcy. A wage earner arrested on a capias ad satisfactionem on a judgment, which would not be discharged by the insolvency law of 1901, is not entitled to discharge from jail sentence INSTRUCTIONS. See also Jury; Courts. his The various certificates of authority or licenses relative to an insurance company or its agents or an insurance broker required to be issued by the Insurance Commissioner of the State of Pennsylvania under the Act of June 1st. 1911, do not require the attachment thereto by the Insurance Commissioner of the revenue stamps prescribed by the Act of Congress of October 27, 1914. In issuing such certificates or licenses the Insurance Commissioner is per 49 129 33 73 1 Page. authority to perform these acts, be properly acknowledged and should be attached to and constitute a part of the articles of association. In 1898 a benefit certificate was issued and the wife of the insured WAS named as the beneficiary. In 1909 the wife died and a new certificate was issued and the beneficiary was named as "step-daughter, Jennie Hummell." The insured died in 1912 in good standing. The order refused to pay, because (1) a step-daughter cannot be legally designated a beneficiary, and (2) the member did not comply with the Statute of Maryland and the laws of the Order insofar as to constitute her a beneficiary by way of dependency. At the trial it was urged that plaintiff had no legal standing, because she did not belong to either c'ass mentioned in the statute and laws of the Order.. Plaintiff sued to recover on an accident insurance policy. An affidavit of defense alleged that death resulted from peritonitis several months after an alleged injury and that death was not the direct result of the injury. On a rule for judgment for want of a sufficient affidavit, Held: Peritonitis is not an injury, it is a disease. It may come possibly as a result of an injury or it may come from many other causes, and affidavit held sufficient In an action to recover on a benecial insurance policy, defendant contended that the insured had given false answer to the following questions: (1) Whether he was then in good health or ever had consumption; (2) Whether any of his family or near relatives had had consumption; (3) Whether he ever had any personal injury or accident or undergone any surgical operation; (4) Whether he was then or ever used intoxicating liquors daily or habitually; (5) Whether he had bad medical advice during the last five years. Verdict for plaintiff and on motion for judgment n. o. v. Held: That the evidence on all these questo tions had been fully submitted the jury, it was for them to pass upon and their verdict would not be disturbed com 604 655 729 739 The insured in a beneficial insurance policy answered "none" to the following question: Do you ever use intoxicating liquors? The pany refused to pay and at the trial for the jury returned a verdict plaintiff. On motion for judgment Held, That this question is not equivalent to the question whether the applicant was a total abstainer, but means habit, tice or custom, and under the vidence in the case the question was one for the jury. Motion overruled 743 INTEREST. prac See Mortgages; Descent and Distribution. inter Where plaintiff in sheriff's pleader claimed to be sole owner of an automobile attached on execution against one alleged to have been his partner, a new trial will not be granted on the ground that evidence was admitted at the trial tending to show such partnership.. 320 INTERSTATE COMMERCE. See New Trial. INTOXICATING LIQUORS. See License. Subject. JUDGMENT. a judgment Where a wage earner is arrested upon a capias ad satisfaciendum which is based upon which would not have been discharged by under proceedings the insolvency law of 1901, he is not entitled to his discharge from a jail sentence upon other grounds of the satisfaction of the writ. Being a wage earner the bankruptcy law does not apply to him and the question of the discharge of the debt for the non-payment of which he was committed must be determined by the terms of the insolvency law of 1901... Upon a petition to open a judgment confessed under a power of attorney in a lease, the question at issue was whether the lessor had verbally promised to make certain repairs, and the testimony consisted solely of contradictory statements upon the part of the plaintiff and defendant. Held: That the judgment should not be opened... A motion on behalf of defendant for judgment in a suit by a foreign corporation will be dismissed where it appears that the plaintiff had registered in another county in the State A husband was arrested by his wife for desertion and non-support and entered his recognizance with a surety conditioned that he sppear before the Quarter Sessions ourt at the May Term 16 answer the complaint and that in the meanwhile the defendant "shall abide and not depart the court without leave." A judgment entered on the bond, being regular, will not stricken off درا As between a judgment entered and a deed delivered on the same day, the matter of priority demands proof of the precise time at which the judgment was entered, and as the purchaser had examined the record and found no judgment. it was evident that the judgment was not entered at the time closing the sale Where defendant's petition for opening a judgment ente. d on a lease does not squarely allege a surrender of the lease and an acceptance thereof by the agent, and he evidence of such is weaker than the allegation, a rule to open the udg. ment will be ischarge1 A rule to open a "onfessed judgment will be made absolute where payment is alleged, and there is conflict in the evidence as to amount paid and whether note was given as additional security or was an independent obligation Judgment was entered in the County foreign Court against a insurance company in default of an answer. This judgment was vacated by an order on a rule for want of proper service of summons. An appeal to the Common Pleas was refused "because in the opinion of the Court no appeal lies from the order making the rule absolute." Plaintiff endeavored by mandamus to compel the Court to allow an appeal, but failed, and thereupon sued writ of certiorari. The questions raised were: (1) Is the order striking off the service and vacating the judgment so far final that it may be reviewed on certiorari? and (2) Does the sheriff's return show a legal service of the summons? Judgment reversed Where the parties to an agreement filed, have with trial by jury and out a action. by dispensed submitted 33 39 48 140 273 312 322 465 Page. of the decision the case to the Court under the Act of April 22, 1874, P. L. 109, the only manner in which a valid judgment can be entered is in accordance with the provisions of that Act. Judgment taken for default of an answer to a rule for judgment on the whole record will be stricken off.... Plaintiff cannot enter judgment in his own name on a non-negotiable note. Blanks in a non-negotiable note may be filled in..... A petition was filed to open a judgment entered on a scire facías sur mortgage, alleging fraudulent representations as to the character of the coal underlying an 1,100-acre tract, and testimony taken. Held: The testimony was too indefinite and general. JURY. 507 608 ... 635 It is a question for the jury to say whether there was a conspiracy.... 339 It is immaterial how a jury arrived at a verdict or made its calculations, since the jury room cannot be invaded by evidence or otherwise... 487 JURISDICTION. See also Courts. 52 The Federal Courts have jurisdiction on a habeas corpus where relator has been confined to an insane asylum by the State Court in a manner contrary to the Constitution of the United States.. Jurisdiction in divorce cases has been conferred by the Act of Assembly cited, and it is the duty of the courts to administer the law as enacted by the legislature. If a divorce granted under such circumstances be of no validity beyond the limits of Pennsylvania, that is a matter more for the future contemplation of the parties than for the consideration of the court in granting a decree in pursuance of an express Act of Assembly. ..... 126 A citizen of the State of Arizona brought suit in the State Court at Pittsburgh against a corporation of the State of New York for a sum exceeding $3,000. Both corporations were registered in Pennsylvania and had offices in the City of Pittsburgh. The defendant petitioned to have the cause removed to the United States Court in the State of New York in the district in which it resided. The plaintiff contended that the suit should be removed to the United States Court in the district in Pennsylvania in which the suit originated or to the United States Court in Arizona in which Held: the plaintiff resided. That under the various acts of Congress relating to the subject, the defendant was entitled to the removal of the cause to the District Court of the United States in New York State in which he resided. Jurisdiction in divorce is enforcible by the Act of May 9th, 1913, notwithstanding the fact that the the marriage of the parties and cause for divorce occurred outside of this Commonwealth, and that both the parties at the time of the Occurrence of said cause were domiciled without this Commonwealth, and that the respondent has been served with the subpoena only by publication as required by law..... 351 JUSTICES OF THE PEACE. Under the Act of May 29, 1907, regulating appeals from Justices of the Peace, a defendant having given bail absolute for debt, interest and costs, is entitled to a transcript for 161 .62-80 an appeal without the payment of any costs and this includes the cost of transcript, appeal, oath, certificate, etc. Under the Act of April 23, 1909, regulating the fees to be charged by Justices of the Peace, the payment of a fee to a Justice of the Peace for the order and certificate for the payment of a bounty of a wolf, fox or other scalp, is to be made by the county and not by the claimant of the bounty LANDLORD AND TENANT. See also Judgments. Plaintiff leased to B a building and the latter turned the first floor into a sales room for jewelry by putting in a wainscoting against the wall around the back part of the store room and setting up throughout the store counters and show cases. The wainscoting was fastened to wooden pegs driven between the bricks. B also put in large chandeliers of brass specially designed and also put electric lights at various places in the show cases and at the side of the wall where no lights had been before. B subsequently assigned the lease to the defendant who attempted to remove the show cases, counters, chandeliers, walnscoting and shelves, etc. The lease provided that the lessee should not "remove, destroy or damage in any way improvements made by themselves or the said party of the second part." Held: First, That inasmuch as it was within the templation of the parties that new flooring and an elevator and similar construction were to be placed in the building by the tenant, which had been done, the word "improvement" was intended to apply to the elevator, flooring and similar construction and did not include the ordinary trade fixtures. Second. The chandeliers were personal property and removable by the tenant. Third. The mahogany wainscoting and partition, if put in for the purposes of the trade of the lessee, would not be removable fixtures con not In an action for rent, the defendant set up that she removed from the building during the term and sold her business to X, who was accepted by plaintiff as tenant, and after X removed, she was prevented from returning to the building on account of its condition, and notice from the municipal authorities not to occupy the building on account of its dangerous condition. The lease covered only a portion of the building. and by reason of the other portion becoming in bad condition, the whole building was rendered unsafe. Held: The allegation as to the acceptance of X as a tenant was not sufficient, as it might be taken to be only an assent to a sub-letting in the interest of the defendant. A riparian landowner cannot under the Acts of Congress acquire a lien against a vessel wrecked on the shore under an agreement with the owner of the vessel that a stated sum will be paid for each day the vessel remained on the land... 221 27 86 Page after, both houses belonged to an estate which was undivided and this room had always been treated as part of the house rented by the defendant. Four years after this rental commenced, the estate W28 partitioned and the rented house was allotted to one heir and the adjoining house with the room used by the defendant was allotted to another. The defendant continued for three years to use the room in the adjoining house in connection with the rented house. The owner of the adjoining purpart during this time made no agreement for rent. After defendant vacated the owner of the adjoining purpart brought suit against the defendant for rent. Held: That the room had always been treated as part of the adjoining premises and such action would not lie ............ 90 160 Upon a rule to open judgment confessed under the terms of a lease by reason of the tenants vacating the premises, it appeared that the landlord was making no effort to re-rent the property. The rule to open judgment was discharged, but the plaintiff was notified not to proceed for the collection of the entire amount, but to make proper efforts to secure a tenant, thus reducing the judgment.. Several persons individually executed a lease for certain real estate for a term of years. At the same time they formed a partnership and used the premises for a certain business. Subsequently A sold his interest to B and thereafter two of the other partners sold their interest to B. A corporation was then formed which assumed the lease and default was made in the payment of rent after the assumption of the lease by the for such default corporation and suit was brought against the lessors and judgment entered against them. Held: That each one of the lessors was primarily liable upon the lease and the fact that A had sold his interest in the partnership and in the lease to B prior to the time of the sale by the two others to B did not render the other members of the partnership primarily liable for the rent and did not make A a surety only for them in case of default... Where a landlord claims the termination of a lease and dispossesses a tenant under the Act of April 14th, 1863, he cannot subsequently claim rent for the time after the expiration of the lease during which he was engaged in ousting the tenant cannot and he in satisfaction of such claim distrain upon the goods of the tenant removed from the premises. The landlord's remedy is judgment for damages sustained by being compelled to eject the tenant 247 A stipulation in a lease with a confession of judgment in amicable ejectment that upon a default and entry of judgment. an attorney's 188 fee of $25 shall be collected is valid 775 LARCENY. Subject. Page. LIBEL AND SLANDER. Under the Act of April 3, 1872, P. L. The Clerk of Courts of the proper " The 4th section of the That the failure of the Clerk to in- 225 242 Subject. Page. as reSubse provisions of the ordinance were a public nuisance and subject to removal. Held: That the charge was an excessive one for the purposes of inspection and the terms of the ordinance were unreasonable and arbitrary and that the ordinance was therefore void.. A person was granted a retail liquor license commencing May 1st, 1914, for a period of one year. In the spring of 1915 he applied for a renewal of it at the same place and it was granted. His old license expired on the evening of April 30th, 1915. He failed, however, to make payment of his license fee on or before April 30th, 1915, quired by the Act of 1907. quently to May 1st, 1915, another person applied for a transfer of the license pursuant to the 7th section of the Act of April 20th, 1858, which provides that "if the party shall die, remove, or cease to keep such house, his, her or their license may be transferred by the authority granting the same, or a license be granted to the successor of such person for the remainder of the year." Held: That the right to a new license ceased by operation of law, and there was nothing to be transferred. Held: Further, that the Act of 1858 did not apply to the present case. 276 269 Under the Act of June 7, 1895. as amended by the Act of April 24, 1905, creating a state board of undertakers and providing for the issuing of licenses to undertakers, a licensed undertaker may lawfully have a branch office in the county designated in his license and may also have branch offices throughout the State, and it is lawful for the State board of undertakers to issue duplicate licenses to an undertaker which can be displayed in a conspicuous place in his branch offices 287 A liquor vendor licensed in a bordering Ohio county went into an adJoining Pennsylvania county and took an order for liquor with the understanding that it should be thereafter delivered from his stock in Ohio to the residence of the purchaser in Pennsylvania. He returned to Ohio, loaded the goods upon his own wagon and delivered the liquor at the residence of the purchaser in pursuance of the contract. Held: That the sale was negotiated in Pennsylvania, but contemplated and required for its fulfillment a transaction in interstate commerce which afterwards took place, with the resulting delivery in Pennsylvania, and that this was not a sale within the meaning of the Act of Congress of August 8th, 1890, within the State of Pennsylvania in such manner as to permit a conviction for selling liquor without a license under the Pennsylvania Liquor Law of May 13th, 1887. Application was made May 10, 1915. for transfer of liquor license granted April 26, 1915, to one who failed to pay license fee and take out his license for the year beginning May 1. 1915. Held: Having failed to pay the license fee as provided by the Act of May 13, 1887, for the new year beginning May 1, 1915. his right to the new license ceased and by operation of law the license was revoked, and there was no license to be transferred. The applicant has no right under the Act of April 20, 1858, P. L. 365, Section 7, to a license for the remainder of 289 |