Gambar halaman
PDF
ePub

lowing arrangement with Mrs. Hodges: Mrs. Lane, the plaintiff, was to live in the house, furnish her room, pay Mrs. Hodges 25 cents for each meal she should take, and also pay $14 per month as rent for her room. Very few meals were eaten by Mrs. Lane under this arrangement, but she continued to rent the room at $14 a month, getting her meals elsewhere, or preparing them in her own room.

The property of a stranger found on the demised premises left for no purpose of trade or other purpose requiring protection as a matter of public policy, is liable to distress for rent. It is true that a boarder's goods are exempt from distress. Kleber et al. v. Ward et al., 7 Norris, 93. Erb v. Sadler, 8 WEEKLY NOTES, 13. Jones v. Goldbeck, 8 WEEKLY NOTES, 533. These cases follow Riddle v. Welden (5 Whar

On August 19, 1879, the rent due by Mrs. Hodges to the defendant being in arrears, dis-ton, 9), in which case the distinction between traint was made upon the premises, and the furniture and goods of Mrs. Lane, in her own room, were distrained upon. Mrs. Hodges having fraudulently removed her goods from the premises, the goods of Mrs. Lane were sold under the distress, notwithstanding that she had given no

tice to the defendants and to the constable making the distress that the goods were hers, and of the arrangement under which she lodged.

a boarder and a subtenant is admitted, and the
boarder in a public boarding-house stated to be
ground of the exemption of the goods of a
the public convenience. The boarder "pays for
lodging, but no rent." Compensation for use of
his chattels be distrained for it, or anything be
his chamber is not a "separate charge, nor could

recovered from him in an action for use and oc-
cupation. : . . He has no interest or term
in the place.
Why, then, should not

[ocr errors]

the public nature of the house protect his goods in it?" The question whether Mrs. Lane was a boarder was properly left to the jury as a question of fact.

March 23, 1881. THE COURT. Rule discharged.

THAYER, P. J., charged, inter alia, as follows: "If Mrs. Lane only rented these rooms and paid rent, the goods are liable to distress, and the defendants were right in what they did. Mrs. Lane says that she rented these rooms at so much a month, and to have meals at twentyfive cents each, and fourteen dollars per month rent. This arrangement seems to have lasted a very short time. If it ceased before the rent accrued, and she became only a renter of the room, her goods were liable under the distress.. To constitute one a boarder he must get meals from the keeper of the boarding-house, that is, he must constitute one of the family of the boarding- Practice-Witnesses-Refusal to obey subpana house keeper; the goods of a person in that reto testify before an examiner-Attachment— lation are exempt from the distress, but not the Upon the refusal of a witness to appear before goods of a mere renter of rooms." an examiner the Court will issue an attachment.

Verdict for defendant. Plaintiff obtained this rule on the ground of the alleged error in the instructions above cited.

Jenkins, for the rule cited

Thompson v. Ward, L. R. 6 C. P. 360.
Allan v. Liverpool, L. R. 9 Q. B. 191.
Philip v. Henser, L. R. 3 C. P. 26.

C. P. No. 4.

Bowen v. Thornton.

Feb. 12, 1881.

Rule to show cause why an attachment should not issue against a witness to appear before an examiner.

A subpoena had twice been served upon the witness (the defendant), who refused to appear before the examiner. A certificate from the exWhere the course of the business must neces-aminer showed that several meetings had been sarily put the tenant in possession of the property held, a reasonable time allowed for the witness of his customers, it would be against the plainest to appear, and that, owing to his absence, it be dictates of honesty and conscience to permit the landlord to use him as a decoy, and pounce upon came necessary to continue the case. whatever is brought within his grasp, after Gangewer, for the rule. having received the price of the exemption in the enhanced value of the rent.

Brown v. Sims, 17 S. & R. 138.

The goods of a boarder are not liable to be distrained for rent due by the keeper of the boarding-house.

Riddle v. Welden, 5 Whart. 9.

Cadwalader v. Tindall, 8 Har. 422.
Karns v. McKinney, 24 Smith, 396.

Howe Sewing Machine Co. v. Sloan, 6 Norris, 438.

J. R. Rhoads, contra.

THE COURT. Rule absolute.

[Cf. Assigned Estate of Hulburt, 8 WEEKLY NOTES, 254.]

Orphans' Court.

Bauer's Estate.

February 22, 1881.

as a party in the petition, decree, and notices; but it was held in that case that as to parties who are so named, it is to be conclusively presumed, even though not affirmatively shown by the record, that all requisite notices were given; and hence, as afterwards decided in Vensel's Appeal, supra, as to such parties, the mere fact that a citation did not issue is immaterial.

In the case before us, a petition for partition Partition-Act of April 14, 1835-Citation to was filed by Henry A. Bauer, in 1869, in which parties in interest-Although the proper practice the widow of the intestate, who is the present is to issue such a citation, this is not essential petitioner, was named as a party, and her intewhere the names of the parties in interest ap- rest explicitly defined. There was no citation, pear in the petition, decree, and notices-Pre- but the petition was set forth at length in the writ sumption that all requisite notices were given. which commanded the sheriff to give notice to Sur petition to award a new writ of partition."the parties aforesaid." His return showed In Bauer's estate (reported ante, 336, q. v.) the Court refused to enter a decree, that premises sold by order of Court under proceedings in partition in 1870, should be charged with dower.

Catherine Bauer, the petitioner above, now presented a petition alleging that no citation issued before the award of the inquest in the partition, and consequently she was not a party thereunto. The prayer was for a citation on the widow and children of Augustus Karstien, to show cause why a new writ should not be awarded, so that by further partition being made between said parties and herself, her dower interest could be thus secured.

An answer pro forma was filed by Elizabeth Karstien, which set forth the sale of the premises to her husband, in October, 1870, which sale was duly confirmed by the Court, discharged from all lien of dower, and other encumbrance.

John White and J. E. Bowers, for the petition. G. W. Arundel, for the respondent, cited the Act of April 14, 1835 (Purd. Dig. 435, pl. 147), and urged that when the name of a party in in. terest appears in a petition for a partition as directed by the above Act, it will be conclusively presumed in favor of the regularity of the proceedings, that due and regular notice has been given, although not affirmatively shown on the record.

Richards v. Rote, 18 Sm. 253.

March 5, 1881. THE COURT. While it is undoubtedly the proper practice in proceedings in partition to issue a citation before awarding an inquest, it has long been settled that it is not essential to do so, and that the partition is not rendered invalid by reason of the want of preliminary notice to the parties. This was decided so long ago as Rex v. Rex (3 S. & R. 533) and so recently as Vensel's Appeal (27 Smith, 71).

It is true, as pointed out by Judge SHARSWOOD in Richards v. Rote (18 Smith, 253), Rex v. Rex was decided under the old Acts of Assembly, while, since the Act of 14th April, 1835, a partition will not divest the interest of one not named

affirmatively that such notice was given, and that the property, being incapable of partition, had been valued and appraised by the jurors.

The order of sale afterwards granted, recited that "all of the parties in interest had refused to take... at the valuation, and agreed that the order of sale be made absolute," which agreement, the record shows, was in writing, signed by the widow, as guardian of two of the heirs, though not by her separately as "widow." The return to the order of sale stated that the premises now in question were sold to Augustus Karstien for the sum of $1330, and the sale so made was confirmed September 8, 1870, security being ordered in double the amount of purchasemoney.

It is now alleged that in making title to the purchaser no provision was made for securing to the widow her interest in the purchase-money, and that the whole amount was paid to the administrator, by whom, under the order of Court, the sale was made. For this reason, and because of the omission to issue a citation against her before the award of the inquest, it is supposed that the partition did not affect her, and we are asked to award a new writ in order that further partition may be made as between her and the purchaser, and her interest thus charged upon the premises according to the provisions of the Act of Assembly.

That this cannot be done is clear. The partition already made was a legal conversion which bound the widow, and, as was decided in Vensel's Appeal, supra, divested her interest so far as the right to demand partition was concerned. How far the omission to have the widow's interest charged upon the premises can deprive her of her rights, or how far her own actions may have estopped her from asserting them, are questions not before us. Her remedies for collection are not within the jurisdiction of this Court. Petition dismissed at the costs of the petitioner.

Opinion by PENROSE, J.

INDEX

OF

ALL THE CASES REPORTED IN THIS VOLUME.

BY

RICHARD C. DALE, Esq.

ABATEMENT, of legacies.

See DECEDENTS'
ESTATES. Appeal of Trustees of University, 520.
ACCORD AND SATISFACTION. An agree-
ment to receive cash and new notes for seventy-five
per cent. of an old note, in satisfaction of the same, is
good as an accord and satisfaction. (C. P.) Bank v.
Huston, 477.

ACKNOWLEDGMENT. See Deed.

ACTIONS. The mere issuing of process against
a defendant, and its return tarde venit, or nihil habet, does
not constitute an "action depending" within the
meaning of the Act of February 24, 1834, providing
for a writ of scire facias to bring in the personal rep-
resentatives of a deceased "party" to an action.
Machette v. Cuyler, 471.

ACTION ON THE CASE. Where an act of
violence is committed by a servant in the ordinary
course of his employment, but not by the direct com-
mand nor with the assent of the master, case and not
trespass is the proper form of action in which to recover
damages against the master. Drew v. Peer, 33.

Where a husband seeks to recover damages for an
act of violence committed upon his wife, whereby he
has lost her company and services, and suffered ex-
pense for medical attendance, case is the proper form
of action. Ib.

ACTS OF ASSEMBLY.

1713, March 27.

[blocks in formation]
[blocks in formation]

Limitations. 465.
Taxes. 561.

Distress 137, 438.

1857, March 14.

1858, April 21.

1858, April 21.

321.

Sheriff's Sales.

418.

1859, April 12.
1859, April 15.
1860, March 29.
1860, March 31.

Orphans' Court.

380.

1861, May 1.

Wills. 207.

1863, May 6.

1832, March 29.

Guardians. 255.

1865, March 27.

Railroads. 291.

Evidence. 513.

[blocks in formation]

1866, March 23.

1867, April 8.

1866, September 24.

[blocks in formation]

57.

1867, April 13.

[blocks in formation]

1834, February 24.

Decedents' Estates. 275, 471.

1868, April 4.

[blocks in formation]

Railroads. 497.

Trustees. 421.
Evidence. 513.
Physicians. 31.

( 577 )

[blocks in formation]

ADMIRALTY. No maritime lien arises for sup-
plies furnished to a vessel upon the orders of the
charterers. Such charterers are not to be regarded as
the agents of the owners for any such purpose. The
master alone can pledge the vessel for supplies, and if
supplies are furnished upon the order of any other
person, the supply man must rely upon the credit of
the person thus ordering. (U. S. D. C.) The Nor-
man, 543.

ADVANCEMENTS. Distribution where shares
of legatees are subject to advancements. (O. C.)
Wolf's Estate, 260.

What words in will construed to create an advance-
ment. See WILL. Porter's Appeal, 457.
AFFIDAVIT OF DEFENCE LAW.
Although ordinarily judgment cannot be entered
against an executor for want of an affidavit of defence,
the executor of a deceased terre-tenant who intervenes
as a party defendant cannot claim the benefit of this
rule. Dutill v. Sully, 573.

A rule upon the plaintiff to produce his books of
original entry for the purpose of comparison with the
copy filed is not a rule of course, the defendant must
sustain his application by an affidavit that he is in-
formed or has reason to believe that the copy filed is
not a true copy. (C. P.) Burton v. McCully, 206.
Upon an appeal from a magistrate's court, defendant
is not bound to file an affidavit of defence, unless the
plaintiff puts something on the record showing an in-
tention to ask for judgment for want of an affidavit.
(C. P.) Prichett v. Moss, 558.

What a sufficient copy. A contract of surety-
ship for the payment of rent with an averment of all
the substantial facts is sufficient without filing a copy
of the lease. (C. P.) Loftus v. Corles, 333.

AFFIDAVIT OF DEFENCE LAW-Continued.
An acknowledgment that certain shares of building
association stock are the property of the plaintiff, and
that they will be paid in regular order of notice, is not
a sufficient copy to entitle the plaintiff to judgment
for want of an affidavit of defence. (C. P.) Newlin
v. Building Association, 220.

A claim property bond in replevin is not a sufficient
instrument. (C. P.) Elliott v. Kunzig, 542.

A plaintiff will not be permitted to withdraw a por-
tion of his claim without prejudice to his right to pro-
ceed in another action and to take judgment for the
balance. (C. P.) Hall v. Ritter, 574.

Affidavit, when sufficient. In an action for rent
an affidavit setting up that the landlord by force and
arms had ejected the tenant. (C. P.) Whitaker ».
Read, 144.

In an action upon a promissory note, an averment
that the note was obtained from the defendant by false
representations, and fraudulently put into circulation
is sufficient to prevent judgment. Smith v. Popular
Loan Association, 168.

In an action for liquors sold, an affidavit that they
were impure, vitiated, and adulterated is sufficient.
(C. P.) Glenn v. Keenan, 170.

What a sufficient denial of partnership relation.
(C. P.) Bank v. Castner, 273.

What a sufficient averment of defective quality in
an action for goods sold and delivered. (C. P.)
Badger v. McKay, 528.

What an insufficient averment of a set-off. (C. P.)
Devenny . Building Association, 127.

What an insufficient averment of defect in quality.
(C. P.) Roebling v. Brown, 170.

In an action by a landlord against the surety of his
tenant, an affidavit that at the time when the rent be-
came due, there were upon the demised premises goods
of sufficient value to pay the rent and that the land-
lord, although requested by the surety, failed to dis-
train, is insufficient to prevent judgment. (C. P.)
Loftus v. Corles, 333.

In an action upon a promissory note made in New
York, an averment that the notes included usury, and
that under the statute of New York, and the decisions
thereon, the. notes are void even in the hands of third
persons, is insufficient. Boughton v. Bank, 519.

An averment in an affidavit of defence of the law of
another State must be made with the same precision
as the averment of any other fact. Ib.

In an action upon a promissory note given in pay-
ment for stock sold, an affidavit of defence that the
stock was worthless is insufficient unless accompanied
by an averment of willingness to return the stock.
(C. P.) American Banking Co. v. Donnelly, 573.

Affidavit of defence under rule of Court in
Armstrong County. A plaintiff who files a sworn
statement of the amount awarded him by an auditor
upon the distribution of an estate in the Orphans'
Court is entitled to judgment for want of an affidavit of
defence. Montgomery v. Heilman, 537.

AGENT. See EVIDENCE. PRINCIPAL AND AGENT.
AGREEMENT. See CONTRACT.
AMENDMENT.

A new defendant cannot be
substituted by way of amendment in an action begun
by a capias. (C. P.) Brittin v. Shloss, 510.

Under what circumstances the record may be amend-
ed after verdict by substitution of formal parties.
(C. P.) Hirst v. Randall, 349.

Surplusage in judgment, when formal defects in, can
be amended after the removal of the case to the
Supreme Court. Hartley v. White, 286.

Where a conditional verdict and judgment for plain-

AMENDMENT-Continued.

tiff in ejectment omitted to fix a time for the payment
of the sum upon which the verdict was to be released,
the Supreme Court on error amended the judgment by
inserting a date before which payment should be made.
Kensinger v. Smith, 311.

A purely formal amendment, such as the insertion of
the name of the legal plaintiff in a suit brought in the
name of the equitable plaintiff, may be made even
though a new suit would be barred by the Statute of
Limitations. Clement v. Commonwealth, 131.

While a large discretion may be exercised by the
Court below in permitting amendments to the plead-
ings, yet such an amendment to the narr. as substan-
tially changes the cause of action, will not be allowed.
Royse v. May, 104.

ATTACHMENT, EXECUTION. See EXECU-

TION.

ATTACHMENT, FOREIGN. See FOREIGN

ATTACHMENT.

See

ATTACHMENT FOR CONTEMPT.
COURTS. Borlin's Appeal, 545. See PRACTICE. Bowen
v. Thornton, 575.

ATTORNEY-AT-LAW, The office of an attor-
ney is his property, and he cannot be deprived of it
unless by the judgment of his peers or the law of the
land. To deprive him of it summarily for the publica-
tion of a libel upon a man in a public capacity, or where
the matter was proper for public investigation, would
be an infraction of the spirit, if not of the letter of
Art. 1, § 7 of the Constitution. Ex parte Steinman,
145.

An amendment to correct an error apparent upon A Court has the power, without any formal com-
the face of a record of the Orphans' Court will not plaint or petition, upon its own motion to strike the
be allowed after the lapse of seven years, where inter-name of an attorney from its roll, provided he is af-
vening rights will be affected. (O. C.) Bauer's Ap- forded an opportunity to be heard in his own defence.
peal, 336.
Ib.

Under the Act of April 21, 1858, a municipal claim
may be amended at any time before or at the trial,
provided intervening rights are not thereby prejudiced.
Allentown v. Hower, 198. (C. P.) City v. Wagner,

511.

The Act of June 11, 1879, authorizing the amend-
ment of mechanics' liens is not retroactive. Fahne-
stock r. Wilson, 385. (C. P.) Sparr v. Walz, 64.
ANNUITY. An annuity charged on the personal
estate is a general legacy, and, in case of deficiency
after payment of debts, expenses, and specific legacies
to pay other general legacies, the annuity must abate
ratably with the other general legacies. Appeal of
the Trustees of the University, 520.
APPORTIONMENT of mortgage.
Amanda Martin's Appeal, 484.
ARBITRATION. An agreement for a reference,
not made a rule of court by the filing of the agreement,
is revocable until notice of the award is given to the
parties by the arbitrators. (C. P.) Huston v. Clark,
316.

GAGE.

See MORT-

ARMSTRONG COUNTY. See AFFIDAVIT OF
DEFENCE LAW. Montgomery v. Heilman, 537.

ASSIGNMENT FOR THE BENEFIT OF
CREDITORS. An insolvent building associatio
cannot be wound up under an assignment for the bene-
fit of creditors. The members of the association, though
quasi creditors, are not strictly so, and the equities of
all interests can be best conserved by the appointment
of a receiver. (C. P.) In re National Savings and
Loan Association, 79.

Creditors who have lent money to the grantor of real
estate upon the faith of declarations made by his gran-
tee that the equitable interest in the land remained in
such grantor, may share in the distribution of the pro-
ceeds of sale of such real estate by the assignee for the
benefit of the creditors of the grantee, after payment
of the debts for which the estate was specifically as-
signed. Mowry's Appeal, 362.

The commissions of an assignee for the benefit of
creditors upon a fund of $16,535, produced by the sale
of real estate, in the absence of evidence of any special
trouble, were fixed at two and one-half per cent.
Brice's Appeal, 227.

ASSUMPSIT. The rule that money collected by
execution, though not lawfully due, cannot be re-
covered, does not apply where the judgment on which
the execution issued was subsequently reversed on
writ of error, and a second trial resulted in a judgment
for the defendant. In such case assumpsit will lie to re-
cover the money so paid. Travellers' Ins. Co. v. Heath,
516.

There may be cases of misconduct not strictly pro-
fessional which would clearly show a person not to be
fit to be an attorney, e. g., theft or forgery; but an
attorney cannot, even in such a case, be summarily
disbarred without a formal indictment and trial.

Ib.

Attorney and Client, It is a well-settled prin-
ciple that an attorney cannot make a profit out of his
office to the prejudice of the rights and interests of
his client. Hence where an attorney buys a title out-
standing or adverse to that as to which he has been
consulted or employed, he buys for the client, if the
client should elect to take it. (C. P.) Lockhard v.
McKinley, 11. (U. S. S. C.) Humphrey v. Baker,

13.

A commission of two per cent. is a reasonable figure
for the collection of a mortgage of $2000, where the
terre-tenant is a widow with a large family dependent
upon her. (C. P.) Landis v. Aldrich, 192.

There is no definite standard of commission for the
collection of a mortgage. In this case, a fee of $150
was allowed upon a mortgage of $4000. (C. P.) Reed
v. Worthington, 192.

[ocr errors]

Upon a judgment for $2600 by warrant of attorney
containing the clause, with attorney's fees for collec-
tion," most of the debt was paid voluntarily, and the
judgment was opened, and went to a jury upon a con-
tested payment of $192. The jury decided in favor
of the plaintiff, and the Court upon a reserved point
allowed $103 attorney's commission on $2600, accord-
ing to a fee bill agreed upon by members of the bar:
Held, that this was not excessive, as there was litiga-
tion, and the labor of counsel would have been no
greater had the verdict been for the whole face of the
judgment. Imler v. Imler, 196.

AUTHOR. The performance of an uncopyrighted
opera on the stage is not a publication, and gives no
right to print the music from memory or otherwise.
(C. P.) Gilbert v. Bacher, 14

BAIL IN ERROR. A recognizance of bail in
error, defective in form, may derive validity from the
consent, expressed or implied, of the parties intended to
be effected by it. Allen v. Kellam, 93.

The recognizance may be sustained as a voluntary
personal contract, based on sufficient consideration,
and if there be an election to accept one defective, and
treating it as valid, to forbear to proceed by execution
pending the writ of error, neither the principal nor the
surety can evade liability on the ground of the defect.
Ib.

But to treat the recognizance as a nullity, by issuing

« SebelumnyaLanjutkan »