40

the minutes at altime of its being made, and to the May made prior though Term, at which the complaint was returnable, was a legal order, and the defendant the failure comply therewith or to appear at the May Term was a breach of his bond. Held, also, that such judgits face, ment, being regular on

of

to

should not be stricken off, but that should be by surety's proceeding petition to the court to respite the recognizance for cause to be shown, under the Act of 1783... In order to relieve a surety from liability the variance from the contract be a must by the principal terial one and one which substantially increases the chance of loss to the person insured..

ma

After

an award of an appeal from while the matter arbitrators and

was still in litigation, three of the directors of the defendant corpora

appeal bond.

said

or

The

tion signed an sureties on the appeal bond and the subsequently made other directors were an agreement stipulating "the said parties, all of whom are Pitt Fort in the directors Mining & Milling Company at the time the said obligation was made shall share the loss, if any, and be for the payment of equally liable said judgment, and shall be equally to recourse and mutually entitled for any moneys advanced by them against the Fort Pitt Mining & MillJudgment was reing Company.' covered and two of the parties to this agreement, the plaintiffs, paid. They filed this bill to enforce conthe agreeHeld, That tribution. a several and not ment created the part of each joint liability on party thereto, and that each of the defendants was liable to the plaintiffs jointly for one-eighth of the amount paid in satisfaction of the judgment

a

Plaintiffs sued the administrators of decedent, who, during his lifetime. had become surety for the payment agreeing to "become of the rent, responsible" and "to indemnify and protect" the plaintiffs against loss by breach of covenants on the part Defense was made of the tenant. that after levy on a landlord's warrant. one of the plaintiff's in a conversation had wrongfully turned the premises over to the tenant's wife, it was contended, which action, Held, eviction

amounted

to an

That as the tenant was present and made no objection, there

eviction.

plaintiff

was no

Judgment on a verdict for

gave

Plaintiff was delinquent tax collector a judgment and defendants bond for $75,000.00 to protect plaintiff for public moneys kept on deWhen the bank posit in a bank. closed its doors plaintiff had deposit $210.137.80.

on

for this sum.

140

171

479

Suit was brought before the Burgess of a borough and a conviction had and penalty imposed for the violaThe tion of a borough ordinance. procedure was by summary conviction, from which the defendant appealed to the Common Pleas Court. The plaintiff filed his statement of claim, the affidavit of defense was filed, and after the pleadings were completed, the case was put on the Fifteen months later it trial list. was called for trial and the defendant then moved to quash the appeal, on the ground that it should have been taken to the Quarter Sessions Court. Held, That the appeal should have been taken in such a proceeding to the Quarter Sessions, but that general had Pleas the Common jurisdiction of the subject matter of and it was at this time too late to the the regularity to object

appeal

PROCESS.

A

church had its original certain of worship in the City of place Pittsburgh and maintained another place of worship in an adjoining Notice of the time and borough. place of meeting of the Board of Viewers to award damages and assess benefits for the improvement of a street in the borough upon which was located. the church property was given by posting notice on the church building in the borough. The Secretary of the Church lived in the borough and that fact was known the notice. posting person to the The notice so posted was the only Held, That posting notice given. was not in compliance with the statute and

the notice

cient

against

A foreign Beneficial Insurance Society engaged in business in Pennsylvania the Insurance without appointing Commissioner its agent upon whom service could be made as required In a by the Act of June 25, 1895. the society, suit brought service was made on the Insurance Held. That the serCommissioner. vice was valid as the society could not take advantage of its own delinquency in failing to appoint him as agent as required by the Act of Assembly

PUBLIC SCHOOLS.

The Board of Public Education of the
recover
City of Pittsburgh cannot
consequential damages from the City
by reason of the change of grade in
of the
The provisions
a street.
Constitution on such matters relate
only to private property.

of
An orphan, who was an inmate of an
under articles
home
orphans'
with the guardian
all
agreement
released
latter
the
whereby
parental rights and claims to the
child until the age of eighteen, in
consideration of which the orphan-
age undertook to feed, clothe and

505

63

educate the child, does not become a legal resident of the district in which the institution is located, but of the school district in which the guardian lives.. Where the total existing indebtedness of a school district is more than two per centum of the assessed valuation of the taxable property therein but part of the indebtedness was duly authorized by a vote of the electors, such part may be deducted from the gross amount of the indebtedness, and if the remainder of the indebtedness is less than two per centum of the assessed valuation, such remaining indebtedness may be increased to an amount not exceeding two per centum of the valuation without special authorization of the electors. In such a case the school directors, exercising the powers conferred by Sect. 508 of the Code, may borrow money as a temporary debt to be paid within two years out of current revenues, up to the amount of onehalf of one per cent. of the assessed valuation, provided this amount together with existing indebtedness of this class makes a total indebtedness of less than two per centum..... School Directors under the School Code have a legal right to require teachers in their employ to do professional reading, and to satisfy themselves by a written or oral test that said teachers have carefully and intelligently read the prescribed book or books. Directors before adopting any course of reading should submit it to the State Superintendent of Public Instruc

tion

95

121

325

Under the school code of May 18, 1911, P. L. 309, it is not necessary for a supervising principal, in a school district of the third class, where he is not required to teach in any of the schools, to receive the votes of more than a majority of the members of the school board in order to render his election valid. even where his brother is a member of the board. The duties of a supervising principal are not the same as those of a teacher, but rather those of a district superintendent. ....... 553

PUBLICATION.

See Notice.

QUO WARRANTO.

A hardware corporation sold to a borough at one time supplies amounting to $40.64 and at another time supplies amounting to 60c. The purchases were made by a member of council who was a member of the street committee and was for the use of the borough. One of the councilmen was the treasurer of the hardware company but did not know of the sales at the time they were made, although as treasurer of the company he endorsed the vouchers in payment thereof at a later date. In quo warranto proceedings to oust the councilman on the ground that the sale by the hardware company, of which he was a member. was a violation of the Act of March 31st, 1860, and other acts forbidding members of borough councils to contract with firms of which anv councilman is a member. it was Held that the sales were not "contracts for the sale or furnishing of any supplies or material to be furnished to or for the use of" the borough within the meaning of the law and for which the councilman in this

proceeding could be held to have forfeited "his office or appointment in such borough and also be guilty of a misdemeanor" In a Quo Warranto proceeding to determine the right of directors to their office, the relator averred that at the annual election for five directors, two candidates received a majority and five other candidates a tie vote. The meeting adjourned and upon resuming a week later, two of the five withdrew and the other three were declared elected. An amendment to the by-laws was then passed increasing the number of directors to six, and the extra director immediately elected. The answer set forth that the tellers were not sworn, that the proceedings at the adjourned meeting were regular and had been assented to by the relators, if and that even the election were invalid, they held over from the election of the previous year. Held, The answer was bad for duplicity in that it set up inconsistent the Court pleas, but whole would look into the tion and see whether there

ques

was

145

some well pleaded fact on which a 369 judgment might be based. Service of a writ of quo warranto will be set aside, where the Sheriff's return shows that ten full days did not elapse between the date of service and the return day of the writ 688 RAILROADS.

See also Taxes.

Where a railroad company, for more than twenty-one years, has used continuously, exclusively, and without interruption, all the water of a stream that would flow through a 4-inch pipe line, for the supply of the company's locomotives with water, a conclusive presumption of a right in the company to so use the water of the stream has arisen. 137 REAL ESTATE.

See also Ejectment.

A

contest between the wife of a bankrupt and the trustee in Bankruptcy, the wife claiming title, is to be settled in the Common Pleas and not the Federal Court. . . . . . A petition to obtain possession of real estate after a sheriff's sale must conform to the Act of April 12, 1905, and set forth the names of

the persons in possession........... Where the purchaser at sheriff's sale of certain real estate paid to the sheriff the amount of the taxes and costs and the latter took their receipt for the balance of the purchase price under the Act of April 20th. 1846, the sheriff was not entitled to the poundage...

REAL ESTATE.

Where a master advertises the sale of property pursuant to an order of the Common Pleas Court and thereafter one of the three receivers takes an appeal to the Supreme Court, the Common Pleas will control the sale by adjournment so that it does not take place until after decision of the Supreme Court. It is not for the lower court to determine whether or not the appeal is a supersedeas.. Executors who seek to restrain building operations should show the capacity and powers under which they are authorized to manage real estate

37

46

105

272

480

Subject.
RECEIVERS.

See also Mortgages.

The Court appointed receivers for an individual whose assets largely exceeded his liabilities. These assets were not capable of being turned into ready money, consisting of coal lands, real estate and unlisted securities. Some of the unsecured creditors presented petitions asking leave of the court to enter suits and have their claims reduced to judgments. On rules to show cause, answers were filed, alleging that the receivers were duly qualified and were performing their duties, and that if the court permitted these suits to be entered and prosecuted separately, it would result in unnecessary costs and waste of the assets of the estate. Held: The order appointing the receivers would be so far modified as to permit all creditors without further proceedings or petitions to court to enter suits and recover judgments by due process of law...

RECORDS.

See Books.

REGISTRATION.

See also Corporations; Elections. Men who have come into the district to work on a State road and have resided there for 60 days, many of them foreigners, should not be included on the registry list, as there is no evidence of an intention to become actual residents of the district

Where the Township Assessor gives the Assistant Assessor a typewritten list of names for registry and the Assistant Assessor returns this list to the Commissioners with his registry book but separate therefrom, and advises them to pay no attention to the list, and the Commissioners insert the pages containing these names in the regular registry book, such names have not properly been placed on the registry list and will be stricken off by the Court on petition

REPLEVIN.

See also Arbitration. After choosing arbitrators for a compulsory arbitration of a replevin suit the attorneys for plaintiff will not be allowed to withdraw their appearance without notice to the defendant

Where executors seek to recover by replevin from the heirs certain personal property of the decedent withheld from them, they cannot, during the pendency of such suit, petition the Orphans' Court to order the heirs to turn over such property to them as executors...

A new trial will be granted where the weight of the evidence in an action in replevin tended to prove that plaintiff was in arrears for rent at the time action was brought, and the credits claimed by the plaintiff were not supported by plaintiff's testimony and the memoranda submitted, although the jury decided in favor of plaintiff. Plaintiff alleged that the sheriff on a writ of replevin had forcibly and unlawfully entered premises and carried away goods and chattels, which had already been distrained for rent on a landlord's warrant at the instance of plaintiff and claimed treble damages and costs under the

Page.

Act of March 21, 1772. Held, That the Act allowing treble damages and costs for the wrongful taking of goods and chattels distrained for rent has reference to the taking by a private party only, and does not apply to the sheriff, who is responsible only for the proper execution of the writ. There was no allegation that the sheriff was guilty of misconduct and demurrer sustained.... 703 REQUISITION.

See Habeas Corpus; Criminal Law.
RESTRICTIONS.
See Buildings.
REVENUE STAMPS.

Α railroad company receiving сол-
tainers
the
for shipment without
necessary United States revenue
stamps, cannot compel the State,
which in this case did the shipping,
to supply such stamps..
RULE IN SHELLY'S CASE.
See Wills.

SCHOOLS.

See Public Schools.

SCIRE FACIAS.

See also Municipal Liens; Mechanic's Liens.

The words "structure" and "property" in a scire facias as prescribed by the Acts of April 17, 1905 (P. L. 172), and of June 15, 1911 (P. L. 980), taken in connection with the 32nd Section of the Act of June 4, 1901 (P. L. 431), and Section One of the Act of 1836, mean the same thing, and did not vary the meaning of the notice which the writ conveyed to the defendants.....

A scire facias was issued and judgment entered in Armstrong County, and the property sold at Sheriff's sale. This sale was set aside. An alias scire facias was issued and the defendants, instead of filing an affidavit of defense, pleaded in bar the former judgment, to which plea a demurrer was filed and is still pending. Held: That the pendency of a scire facias on the mortgage is not of itself a reason for staying excution or opening a judgment and rule discharged

on

On a rule for judgment for want of a sufficient affidavit of defense on a scire facias sur mortgage. it appeared that the affidavit of defense was made by a Receiver in Bankruptcy. who alleged that while the mortgage purported to have been executed on April 9, 1904, it was not authorized by the Board of Directors on that ог any previous date. The mortgage was dated April 25, 1904. which date a meeting and election of the stockholders It was held. was alleged that no return of this meeting and election to increase the indebtedness of the corporation was made to the Secretary of the Commonwealth. Held: That it was immaterial that the notary's certificate was dated April 9. 1904. as. between the parties, this was no part of the mortgage, and that the return of the election was a matter that did not affect the validity of the mortgage

383

700

305

635

714

Subject.

A scire facias was issued on a municipal claim for grading, paving and curbing a borough street. The affidavit of defense alleged that the property "is now and was at the date of the making of the improvement in said Brownsville road ・・・ a place of burial not used or held for private ог corporate profit." The defendant had not appeared before the viewers, nor were exceptions filed to the viewers' report, nor was an appeal taken from the assessment. Held: That service was not had in compliance statute

SENTENCE.

See Criminal Law.

SERVICE.

See Process.

SEPARATION.

See Divorce.

SET-OFF.

with the

789

See Bills and Notes; Mortgages. SHERIFF'S SALES.

See also Real Estate; Sheriff; Taxes. Where the sheriff at a sale of real estate had not collected the money for which he took the receipt he was not entitled to poundage under the Act of April 1st, 1887, or the Act of July 11th, 1901.. On exceptions to a sheriff's sale of real estate, it appeared that the court made an order, staying the writ for a specified time. This order was not entered on the D. S. B. docket, but was entered upon the execution docket. Held: That this order had not been properly entered and sale set aside...

SLANDER.

See Libel and Slander.

SPECIFIC PERFORMANCE. See also Equity; Injunction.

the land

105

767

In order that a written contract for the sale of land may be specifically enforced must be sufficiently described in the contract to make possible its identification and location without the aid of parol testimony and all the parties must be shown by the writing to have agreed to the sale. If the contract be considered in the light of a parol contract, that is, a contract requiring the aid of oral evidence in order that its essential features may be established, it cannot be specifically enforced unless possession of the land was taken by the vendee under the contract as a contract of sale; and whether the contract be considered as in writing or in parol it cannot escape the statutes of frauds when at the time of the execution of the writing there was not a definite present agreement for the sale of the land, but an agreement which in that respect was conditioned on future events.. Plaintiff, on the strength of a parol agreement with the owner of real estate to purchase the same, entered into an agreement with the defendant for the sale to defendant of the same land. Defendant, after agreeing on terms with the plaintiff and giving a check for part payment, went directly to the owner, entered into a new agreement with the owner, stopped payment on the check and refused to complete the sale with the plaintiff, who filed a bill for specific performance. Held: That as plaintiff's parol agreement with the owner was not binding under the statute of frauds, specific performance would not be decreed. 460

363

Page.

Plaintiff filed a bill for specific performance, the setting up written agreement signed by the son as his duly authorized agent, averring possession and improvements made by In defendant to plaintiff's property. his answer, defendant by his guardian, denied the son's authority to Held: The make the agreement. evidence was sufficient to show a parol contract between the parties, but entirely fails to show any written contract signed by defendant, and as this was all that was really alleged in the bill, specific performIt is ance would not be decreed. not necessary to plead the statute of frauds, but it is necessary that plaintiff tender performance and have his property so described as to support a bill for specific performance by the other party agreement before relief granted Specific performance of an agreement for the sale of real estate will be decreed where the only defense was that the coal had been reserved and this fact had been orally told the plaintiff, but there was nothing in the written acceptance of the offer. Where the oral testimony is evenly balanced, the written memorandum will carry the weight of the evidence

to the be will

An agreement for the sale of real estate contained the following: "All the terms and representations made. prior or at the time of the making of this contract are embraced therein. No representations, promises or agreements except as herein contained shall be binding on the parties thereto. understood It is and agreed that after acceptance by this contract cannot be cancelled, and that its validity shall not be affected by any verbal or other agreement not contained Defendant averred in his that affidavit of defense another writing was attached to the agreement when he signed it to the effect that the agreement could be cancelled at any time and that the money previously paid would be returned should he be unable to continue the payments, but that agent

herein."

Held:

cient

STATUTES.

the

had detached this paper. Defendant's affidavit insuffi

472

725

761

See also Acts of Assembly: Acts Construed; Constitutional Law. Only such joint or concurrent resolutions passed by the Legislature must be submitted to the Governor for his approval, which make legislation or have the effect of making legislation; that is the effect of enacting. repealing or amending laws or statutes, or which have the effect of committing the State to a certain action. for or which provides the expenditure of public money. Resolutions which are passed for any other purpose, such as the appointment of a committee by the Legislature to obtain information on legislative matters for its future use are not required to be presented to the Governor for action thereon.... 346 STATUTE OF LIMITATIONS. See Limitations to Actions. STREETS AND ROADS.

See also Municipal Improvements;
Viewers; Damages.

In 1873 a Township road was author-
ized and laid out within the limits
set forth in the report of the
viewers, but not directly on the line

44

Subject. shown in the report.

an

Page. In 1898 the land having been taken into a Borthe ough, the Borough improved adjoining property road and owner brought trespass against the Borough for damages, alleging that in improving the street the Borough altered and changed the line of the road and encroached upon a strip of and appropriated The testimony property. there being any change in the road was conflicting, and the jury was instructed that if the road was not within the limits of the road originally established, the Borough the fence had the right to sufficient back and

move

appropriate

his as to

as

Б

moved their fence from the line to the middle of the alley, and from that time used the 10-foot space as owned Plaintiff private property. opposite side, the land using part of his alley space as a entrance and as an sidewalk apartment houses, and the balance Because of the as a flower garden. steep grade the alley was inaccessible to vehicles and had never been Plaintiff contended that improved.

to

possession

missed

L. 468,

State

Highway

not take

streets

Department

roads

at any

mit"

in title

the dividing lines.

16/2 feet

wide

this survey.

by

most of these

OT

passed

through

owned

numerous

on

437

447

Subject.

Page.

STREET RAILWAY COMPANIES. See also Constitutional Law; Municipalities.

In 1886 a borough authorized a passenger railway company to occupy of their streets under an certain ordinance which provided that no license for borough purposes should be levied upon the company until the expiration of five years after the company began to operate its railroad and "after the expiration of such period of five years said company shall pay into the borough as license treasury such council may hereafter provide for." In 1890 another borough ordinance additional was adopted granting privileges to the railway company and providing that "the company shall for a period of fifteen years from and after the completion of exempted the lines aforesaid be

A municipal ordinance imposed a tax of 50 cents on each trolley pole of a street railway payable on or bethe first Monday of October each year, and in case of default, provided for the entering of a suit Nothing was said in with costs. the ordinance about interest thereon after default in payment of this license fee. In a suit to recover this license fee, plaintiff obtained a verthe dict. which included interest. on trial new for a motion no interest could be ground that Held: That the action collected.

On

651

272