Page. Subject. the year commencing May 1, 1915, and ending April 30, 1916..... The Act of Assembly providing for the granting of liquor licenses and for the regulation of the sale of intoxicating liquors, raises the presumption of necessity for the sale of liquors somewhere; hence, the granting of license somewhere. The clear inference is that no license will be granted except where there is a legal demand and a necessity within the contemplation of the law, and then only when the public welfare is not jeopardized thereby The State Insurance Department has no authority to license a trust company to engage in business as a life insurance company, until said trust company has complied with the provisions of the Act of June 1, 1911, P. L. 581, as to paid-in capital stock and surplus. LIENS. See also Maritime Liens; Municipal Liens; Scire Facias. 291 449 622 A certified copy of the books of ac- A sci. fa. to revive continued the a existence amounted a was to fraud... 261 273 273 Subject. Page. Upon judicial sale of certain real estate the proceeds were applied to the sheriff's costs and then to county and borough taxes which were liens after the year 1907, and which exhausted the fund. At the time of the sale borough and school taxes for 1904 and 1905 were prior unpaid liens on the property. Held: That by the Act of May 28th, 1907, providing that the lien of a tax or municipal claim shall not be divested by any judicial sale of the property liened as respects so much thereof as the proceeds of such sale may be insufficient to discharge, the lien of the taxes for 1904 and 1905 were divested as they were prior in time to those paid and the proceeds of the sale were sufficient to pay them......... A lien for a municipal claim cannot be supported against the roadbed of a Railway Company, even where the title is in fee...... LIMITATION OF ACTIONS. 459 556 Plaintiff was allowed to amend the record after the statute of limitations had expired by striking from the name of the defendant, a corporation, the word The. It appeared that there was another corporation having the same name, except for the addition of the word The at the beginning, but it was inactive. Service of the writ had been accepted by the attorney of the real defendant and it appeared in court by its officers to defend the case at the trial when the amendment was made. Held: That the amendment was properly allowed... 255 A check on account made within six years before would suit brought toll the statute of limitations, but when it was claimed to have been in full payment, it was a question for the jury, taken with the other evidence certain the In an action for false arrest it appeared that brass fittings had disappeared from the plant of the defendant company and that the chief engineer of plant had caused the arrest of the plaintiff on the charge of larceny and caused his premises to be searched under the authority of a search warrant. During such search and for some time thereafter the plaintiff was detained under arrest. The property was not found and the plaintiff was discharged. Upon the trial it was admitted that the general superintendent of the company authorized the chief engineer to secure a search warrant for the property, but the defendant sought to escape liability on the ground that there was no authority given to make the arrest. Held: That the authority given to the chief engineer to secure a search warrant included the authority to cause the arrest of the person in whose custody it was thought the goods would be found.... 328 561 168 Subject. MANDAMUS. Property owner sued out Page. Subject. a writ of alternative mandamus to compel borough counsel to connect her property with a water main on a street running 135 feet from her property. Held: The court had no power to interfere with the discretion vested in the borough council unless there be an abuse thereof and writ quashed... 333 A writ of peremptory mandamus will lie to enforce the placing of a candidate's name on the ballot.... 588 A board of school directors ousted one of its members and elected another to fill the vacancy at a special meeting. The removal was on the ground that the ousted member had neglected or refused to attend two successive regular meetings of the board under Section 221, Article 2 of the Act of May 18, 1911, known as the School Code. The ousted member issued a writ of alternative mandamus to compel his re-instatement. To the return of the defendants, plaintiff filed a demurrer. Held: That as the plaintiff had been ousted at a special meeting and had no notice that the proposed removal was to be considered; and further, that as he had had no opportunity to prove that his absence was caused "by sickness, or prevented by necessary absence from the district," the removal was illegal and demurrer sustained MARITIME LIENS. A steamer which sank in the Monongahela River was raised by the owner and beached.. Subsequently it was sold and the owner of the land upon which the boat was stranded averred a contract with the purchaser of the boat for a rental of $1 a day for the occupation by the boat of his land. The owner moved the boat and a libel in rem was filed against the steamer and a motion was made to strike off the lien against the steamer on the ground that it was not a maritime contract. Held: First. That the words "other necessaries" in the Act of Congress of June 23, 1910, 36 St. at L., 604, which gives a lien to furnish repairs, supplies or other necessaries to vessels, did not include the rent claimed. Second. That although a lien can be established for wharfage, the rent claimed could not be considered wharfage. MASTER AND SERVANT. The plaintiff's only remedy was an wrongful dis 701 86 charge, where the relation of master and servant existed....... 142 MECHANIC'S LIENS. See also Scire Facias. Under the 21st Section of the Act of June 4th, 1901, P. L. 431, relating to mechanic's liens. the service of notice of filing the lien by leaving a copy with an adult member of the owner's family or by the attorney for the owner accepting service, is not sufficient. The Act should be strictly construed and personal service should be made upon the owner. 305 A contractor who makes a contract for the erection of a building with a person to whom the land is agreed to be conveyed and does not make the owner of the land a party, cannot file a mechanic's lien against Page. both the person executing the contract and the owner of the land. The lien is not good against the latter's real estate..... In a scire facias upon a mechanic's lien by a sub-contractor for alterations and repairs, the defendant filed a bond thus discharging the lien. In the trial of the general contractor's lien, the defendant was allowed to have deducted from the claim, the amount of the sub-contractor's lien. Held: That the defendant could not subsequently set up lack of notice of intention to file a lien by the sub-contractor and thus defeat his claim. The Court of Common Pleas has no authority to revive a mechanic's lien after it has expired.. A mechanic's lien was filed April 12, 1915, and on June 7, 1915, defendants moved to strike off the lien in that the bill of particulars was not sufficiently specific, and that the claims for labor and materials were lumping charges. On July 9, 1915, the lien was stricken off. On July 20, 1915, plaintiff moved to amend, claiming that the 51st section of the Act of June 4, 1901, P. L. 431, allowed such amendment. Held: The motion to amend was made after the expiration of the statutory period for amendment, and was too late.. 305 441 603 628 ... 627 A judgment entered for want of a plea in sci. fa. on mechanic's lien will be opened or stricken off. The statute and rules of court do not require that a plea be filed..... MINES AND MINERALS. See also Negligence. The owners of mines are liable, if they have knowledge of the negligence of the mine foreman and do not act promptly, notwithstanding the provisions of the Act of May 15, 1893 coal Rule 20. Article 12 of the Act of June 2. 1891, requiring the engineer of the hoisting machinery in a mine to be in constant attendance while persons are below ground applies only to such times as the mine is in operation and does not quire the attendance of the engineer when the mine is shut down, though there may be persons in it engaged in inspecting and making emergency repairs re The defendant was the assistant superintendent of a coal mine and the information for polluting a stream had been made the day following his appointment. Held: In the absence of any evidence that he had done some act to pollute the stream by which he could be held criminally liable, there could be no conviction In a suit to recover treble damages for mining about one acre of coal, it appeared that defendant's title was through a deed which conveyed "all the coal lying and being in a certain tract," and in the description by courses and distances "thence by the crop of the coal." The coal conveyed was 46 A. 92.8 perches, while the farm contained 49.775 acres. It was contended that the coal taken was that between the edge of the merchantable coal and the actual outcrop. Held: That the outcrop of the Pittsburgh coal often appears at the surface and where concealed its location can generally be approximated. It is a natural monument. The expressed intent was to convey all the coal and judgment n. 0. V. 14 302 689 695 See also Negligence. Where plaintiff, a boy of six, wandered from the street through an open door and into defendant's machine shop, and was there accidentally injured, he was too young to be a trespasser.. Under the Act of May 13, 1915, P. L. 286, a broad, administrative discretion with a due regard to the purpose for which the law was enacted, would lead to the conclusion that children's working certificates obtained under the Acts of 1909 and 1911 are valid after January 1, 1916, provided that the minors holding them are to be subject to all the other provisions of the Act of 1915, such as the compulsory attendance of continuation schools and the prohibition against employment of more than 51 hours per week, including school attendance... 83 749 ar 668 a a On appeal from a judgment of Justice of the Peace on an information by a fish commissioner charging defendant with polluting stream containing fish by permitting water from a coal mine to flow into the creek, the information failed to allege that this stream contained fish or fish food prior to the time the offense was alleged to committed. have been Testimony on this point was had at the trial, but it was contradictory. Held: That as the purpose of the Act of May 1, 1909, P. L. 353, Section 16, was to protect food fish, the defect in the information was fatal and could not be supplied by testimony, and that more must be charged in the information than that the alleged offense arose from the dis charge of water from coal mines, as nothing is said in the Act about coal mines. The Act of June 27, 1913, P. L. 640, prohibits the deposit of coal, culm ог refuse from roal mines, but excepts water pumped or flowing therefrom and would not apply. MORTGAGES. See also Scire Facias. B was the owner of various properties which were subject to liens and mortgages, it being alleged that the value of the properties was considerably in excess of the liens and unsecured debts. On account of his inability to pay the principal and interest. various creditors were threatening foreclosure proceedings. Upon petition by a creditor setting forth the above facts, the Court appointed a Receiver for the property of B and made an order without further notice, restraining creditors from proceeding to sell any of B's property. Among the liabilities of B 689 Subject. was Page. an indebtedness secured by a purchase money mortgage. The mortgage provided for the issuance of a writ of scire facias upon default for sixty days and waived all stay of execution and extension of time of payment given by any statute then or thereafter in force. The mortgage being long overdue, the mortgagee applied to the Court for leave to foreclose the mortgage and sell the property, which was refused. Upon appeal to the Supreme Court from the final order of refusal it was Held: The Court was without authority to restrain the foreclosure of the mortgage and the sale of the property in face of the fact that the contract between the parties expressly provided for such proceedings without stay or extension of time.... When three persons are appointed receivers of a corporation by the Federal Court and a mortgagee of the property of the corporation is granted the right to protect the lien of its mortgage by instituting proceedings to obtain judgment, and such proceedings are instituted and concluded in the State Court, and are contested by the receivers. resulting in a decree that the mortgage is a valid lien, from which decree one of the receivers appeals to the State Court of last resort, the Federal Court will not restrain the prosecution of the appeal by such receiver upon petition of the mortgagee for the alleged that there is no valid ground justifying the appeal, and that, therefore, it is taken only for delay and harrass the mortgagee. The right of one of the receivers to except and appeal in such a case should not be questioned.. reason to In directing a sale of the property on a mortgage covering five mines, the Court ordered each mine to be sold separately, beginning with the most valuable mine A executed a bond and mortgage to B in the sum of $2,000 and had the recorded. mortgage After A's death, his widow, as executrix, fled a bill asking that the Court decree the satisfaction of the mortgage on the ground that "There was no person by the name of B and that in fact A and B are one and the same person," and that "A did not borrow any money, that the mortgage does not represent or secure a debt, and that there was no B other than A, the mortgagor.' Defendant not being in existence, there was no service of the bill and the matter came on for hearing in the nature of an ex parte proceeding. Held: That equity had the power to decree a cancellation of the mortgage.. Interest on mortgages accrues de die in diem and is apportionable. Defendant claimed a set-off in that the mortgagee, who was treasurer of defendant corporation at the time said mortgage was placed but who had since died. and whose executors were plaintiffs, was indebted to the defendant in the sum of $22.000, with interest. which indebtedness arose from the treasurer's failure to pay into the treasury of the company $25 a share for 880 shares of stock. which fraud had been concealed until January, 1912. the stock having been sold in 1902, and reciting that a bill in equity was then pending for an accounting. Held: The set-off cannot avail defendant in that the 148 217 228 463 509 It is not necessary that the county commissioners secure by ordinance the consent of the city within the limits of which they are to construct a tunnel before they secure the authorization for such construction from the Grand Jury and Court. Such ordinance follows naturally after such authorization.... 209 The advertisement and specifications by a municipality for bids for a certain number of traction engines required that each bidder should file with his bid an affidavit that a certain number of the engines had been in use for at least one year. The successful bidder did not file such an affidavit until after his bid had been submitted, although they should have been filed before. Held: That the irregularity was an immaterial one and did not affect the quality of the bids and the awarding of the contract should not be set aside for that reason... An 409 electric light company entered into a contract with the Board of Commissioners of a township of the first class to furnish electric light to the township for lighting its streets and highways, the company to erect the recessary poles and lamps upon the township streets for that purpose. This contract was made in pursuance of an ordinance which contained the following proviso: That it is "subservient to all rights that the abutting property owners may have in the highways, so as not to render the Township of Penn liable for any damages to private property by reason of setting of poles, etc.," in front of any private property. Injunction refused.. 499 A "confidential" clerk as provided by the twelfth section of the Act of May 23, 1907, P. L. 206, does not mean a clerk who is to keep secrets. or in any way conceal the operations of the department, but one, in whose integrity, skill and good sense, the director of the department can confide, and in whose charge the director can leave the office when he is absent. Held: This being true, any rule or amend ment adopted by the civil service commission, putting the director off with a subordinate clerk or bookkeeper as his "confidential" clerk would be void and ultra vires, as the commission has no power to limit the director's choice of a confidential clerk The provisions of Section 3 of the Act of April 3, 1851. P. L. 320. relating to the publication of borough ordinances are mandatory. and, until they have been complied with, an ordinance is not effective. and is as wholly inoperative as if the municipal legislative body had 501 not acted in the matter. An ordinance published exclusively in a Sunday paper is of no effect...... The Board of Assessors of the City of Pittsburgh changed the classification of plaintiff's property in 1909 from rural to full. In 1912 on appeal the Court ordered that the property be assessed as rural. Plaintiff had paid, under protest, excess taxes for 1911 and 1912 amounting to $334.86. On a case stated to ascertain whether the municipality was liable for interest on this sum from the date of payment. Held: This being for a sum certain the municipality was liable and judgment for plaintiff... 537 .. 57G annexa A city ordinance was passed authorizing the issuing of bonds for municipal improvements in a city which had been consolidated with another city and which had annexed a number of boroughs, each unit having a large outstanding bonded indebtedness, authorized prior to tion. A taxpayers' bill was filed to restrain this bond issue and declare the ordinance void in that the proposed new indebtedness was without authority of law in that it exceeded the 2 per cent. of indebtedness which council under the constitution was authorized to make without the consent of the electors. Held: That the indebtedness, which the was councilmanic before nexation, remained councilmanic after the annexation, and the electoral indebtedness before the annexation remained electoral after the annexation, and the indebtedness of. the consolidated city was not changed nor could the indebtedness be changed from one class to another by the annexation or consolidation of the various municipalities an On a petition to have the Court order an election to annex a borough to a city of the second class remonstrants urged that the main thoroughfare between the borough passed through two intervening boroughs and the city and that the proposed territory touched the city line for only a short distance and that such contact was not the "contiguity" contemplated by the Act of Assembly, and that the streets directly connecting such contiguous territory were not main arteries of travel. It was further urged that the borough taxpayers would have additional burdens without adequate returns, and that they would be practically denied representation were the Borough Council to be abolished in that the city was governed by a small council elected at large under the provisions of the Act of May 10, 1909, P. L. 501. Held: That the contentions were without merit MUNICIPAL IMPROVEMENTS. See also Streets and Roads; Viewers. To allow the recovery of damages by the Board of Public Education for a street improvement would be taking the people's money out of one pocket and putting it in another. as the boundaries of the City and School District are coterminus.... 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 609 566 63 65 34 Subject. A school district, coterminus with a damages by street street of a The question of market value of land grade in change of before and after is the test of the amount of damage sustained. In a street improvement upon petition of property owners, the signature to the petition by one of two brothers who were owners in common is not from sufficient nor is the signature to the petition by verbal authority the owner to another party sufficient, but these parties having approved the proceedings were estopped from contesting it.. For a change of grade in a street, the Viewers awarded damages to the executrix; for the reason, that the on the gencity had begun work eral improvement covered on some city ordinance on by the streets involved before the death of as Held, That there was no actual taking of land and the damages being consequential, the right of action did not accrue until the city began actual work on the streets immediately on which A's property abutted. the damages should be awarded directly MUNICIPAL LIENS. See also Liens. A municipal lien filed more than six tion of the improvement is invalid, A sci. fa. on a municipal lien, fatally Where a facias Viewers' manner ser of the 75 92 254 417 155 293 777 See Criminal Law. NEGLIGENCE. is Under Rule 3 of Article XX of the re- Electric even was reason It is the duty of a person to move 14 35 42 73 83 |