QUESTION OF LAW AND FACT-Continued. RAILROADS-Continued.
leased by the claimant to the debtor, the case should company under a contract with that other. Cumberland
be sent to the jury, to determine whether there had Valley R. R. Co. v. Gettysburg & Harrisburg Ry. Co.,
been a sale of the goods by the debtor to the claimant, 72.
accompanied by a delivery of possession. (Super. Ct.)
Gernert v. Knerr, 318.
Frequent declarations to the jury that all the evidence
is for them do not cure a biased charge. The function
of the court is to direct the course of the trial, within the
rules of procedure and evidence, to expound the law ap
plicable to the questions raised, for the guidance of the
jury, and in commenting on the evidence to deal with
that of both sides equally and impartially, leaving with
the jury their exclusive right to determine the facts.
(Super. Ct) Larzelere v. Tiel, 320.
In an action by an infant to recover for injury received
through the alleged negligence of the defendant, a rail-
road company, the question whether, under all the cir-
cumstances, the servant of the company in control of the
motion of the car failed to exercise due care, is to be
determined by the jury. If the plaintiff was standing
still when the motorman saw him, in such position as
that the car could safely pass without striking him, the
motorman was not bound to expect the child to turn and
run in front of the car. It would be fair for the jury to
impute negligence to the defendant if the speed of the
car was so great as to prevent its being slackened in
the event of the child suddenly running in front of
the car. (Super. Ct) Beard v. Reading City R. R.
Co., 356.
The character and conduct of a candidate for public
office are proper subjects for public discussion, and a pub-
lication of facts, throwing light on his qualifications or
disqualifications, is privileged. This privilege may be
lost, if the manner in which the publication is made ́and
the comments thereon are improper, and in such case it
is for the jury to determine whether the privilege has
been exceeded. Wallace v. Jameson, 387.
Where the issues in an action of ejectment are upon
genuineness of the signature to a deed and the sanity of
the grantor, the question is for the jury. Lineberger v.
Newkirk, 415.
In a suit by an assignee of a policy of life insurance,
where the evidence is that payment had been made to
the beneficiary named in the policy, upon proof, deemed
sufficient, that the policy had been mislaid or lost, and
that the company never had notice of the assignment, in
conformity with the stipulation printed on the policy, and
a waiver is averred in replication, which is sought to be
established by a letter of the secretary of the company
to the assignee of the policy, it is error to leave the
construction of this letter to the jury; whether it should
operate as a waiver is a question of law. Corcoran v.
Mutual Life Ins. Co., 469.
What facts and circumstances amount to probable
cause, is a question of law. Whether they exist in any
particular case, is a question of fact. When the facts
are in controversy, the subject must be submitted to
the jury, in which case it is the duty of the court to in-
struct them what facts will constitute probable cause, and
submit to them only the question of such facts. Burk v.
Howley, 473.
It is, ordinarily, for the jury to decide from the evi-
dence whether the plaintiff has been careful in the use of
a way of departure from a railroad station, and whether
the defendant company has been negligent in not pro-
viding a safe mode of passage to and from said station.
Rathgebe v. Penna. R. R. Co., 528.
RAILROADS. A railroad company may be on
joined from holding possession of and operating the
road of another, to the detriment of the rights of a third
RAILROAD LEASES. A railroad company
cannot lease to another its franchises, unless it can show
a grant of power so to do from the sovereign, in express
terms or by necessary implication. Van Steuben v. Cen-
tral R. R. of N. J., 217.
A corporation has no legal existence beyond the limits
of the sovereignty by which it is created. Its existence
elsewhere depends upon comity, which is never extended
when its existence or the exercise of its powers is preju-
dicial to the interest or against the policy of the State
wherein the corporation seeks to act. Therefore a com-
pany authorized by the law of its own State to lease or
take a lease of a franchise cannot claim a right to so act
in another State. Id.
A railroad company in this State cannot take a lease of
the franchise of another company, whose road does not
form a continuous route with that of the lessee, either by
direct connection or by means of intersecting railroads.
Id.
RATIFICATION. An agent authorized to receive
cash, in payment of insurance premiums, bas no authority
to accept promissory notes in lieu thereof; but the conduct
of the insurance company, after such acceptance by the
agent, may be such as to amount to a ratification of his
act and render the payment by notes a good payment.
Imbrie v. Manhattan Life Ins. Co., 52.
A., an agent of an insurance company, accepted notes
in lieu of cash from M., in payment of the first and sec-
ond premiums due upon an insurance policy, and sent the
notes to the company by which he was employed. In
an adjustment of his accounts with the company, these
notes were accepted, as he testified, in part payment of
the balance against him. The company, however, al-
leged that the notes were taken as collateral security
only. When about to mature, the notes were presented,
endorsed "for collection on account of M. insurance
company; W. C. F., secretary." Not being paid in full,
the notes were returned to A., who was charged with the
unpaid balance, and he accepted new notes for the
amount remaining. A short time before the third pre-
mium fell due by the terms of the policy, with full
knowledge that the notes had been taken for the prior
premiums, the company sent M. a formal notice to pay
the third premium on the day it fell due. M. died be.
fore that day: held, in an action on the policy, that the
question whether the company had ratified the action of
its agent in accepting the notes as cash was for the jury.
Id.
Under the Act of May 16, 1891, P. L. So, while a con-
tract for paving may be subject to an objection as to ir-
regularity, if the contract be one the city could have au-
thorized, it may waive such irregularity and the accept-
ance of the work is such waiver and a ratification of the
unauthorized work. Pittsburgh v. Childs, 425.
Ratification of the act of an agent is to be presumed
from the absence of dissent by the principal, and is
equivalent to precedent authority. (Super. Ct.) Himes
v. Herr, 568.
Where an attorney-at-law, who has acted as agent for
the investment of a client's funds and their collection
when due, for a number of years, receives payment of a
debt due the client, satisfies, as attorney of record, a judg
ment given to secure the debt and embezzles the amount
received, and the client, on learning of the embezzle-
ment, takes a deed from the attorney, in settlement of
the claim against him, such action on the part of the cli-
ent is a ratification of the act of the attorney in entering
satisfaction. Id.
REGISTER OF WILLS. Within the class en-
RECEIVER. Whether a receiver should be sur-
charged must be determined by the court of his appoint- titled to administration, the exercise of the register s dis-
ment, and will not be passed upon by a court into which
a claim assigned by him has been brought, the assign-
ment having been made after the att chment served upon
him. Douglass Furnace Co. v. Oil Well Supply Co.,
543.
RECORD. While the purchaser at a sheriff's sale can-
not give parol evidence as to the date when the building
purchased, against which are mechanics' liens, was com
menced, for the purpose of showing that the lien of the
mortgage is divested, if the record of the mortgage is
sufficient to show such fact he has a right to presume that
the mortgage will be divested. Assigned Estate of Mil-
ler and Mack, 142.
Where an unauthorized alteration of a material matter
of record is alleged, the proper practice is to apply to the
court, whose record it is, to correct and restore it to its
original condition. (Super. Ct) Sheip v. Price,
278.
cretion in making appointments can only be impeached
by showing personal disqualification in his appointee. (0.
C.) Welsh's Estate, 167.
Pittsburgh v.
REGRADING. See ROAD LAW.
Childs, 425.
RELEASE. A release by a life tenant to the remain-
der man does not create any privity between them, the
life estate becoming merged by the release in the fee.
Lineberger v. Newkirk, 415.
RENT. Insurance against payment of. See FIRE
INSUrance. Heller v. Royal Ins. Co., 61.
RENEWAL. The words "renewal" or "renewed"
are not essential to make covenants for renewal, if other
words, conveying the same idea, be employed. (Super.
Ct) Llewellyn v. Cairns, 251.
Where a lease gives an option to the lessee for a re-
newal, and also contains a covenant, on the part of the
lessee, to surrender at the end of the term, a holding over
will be regarded rather as an election to take the renewal,
than as a trespass. Id.
As between parties and upon error, or the hearing of
any motion in which the question arises collaterally, the
date of filing a paper is to be determined by the record; Whether or not lessees have, by action or parol, elected
the fact that an alteration and erasure of a material date to take a renewal of a lease is for the consideration of
appears in several of the papers filed does not put upon the jury. Merely leaving some rubbish upon the prem-
the party, for whom the same were made, the burden of ex-ises, or, indeed, something more valuable, will not neces-
plaining the same, and the burden cannot be put upon him sarily prove that the lessees still retain possession of the
by an ex parte affidavit of the other side that the said premises. The question is, Was the lessor in any way
alterations were unauthorized. Id.
excluded? If not, and the lessees had not previously
agreed to stay for another period, there is no renewal.
Id.
To make the charge of the court at nisi prius a portion
of the record, it must affirmatively appear that the
charge was filed by the judge himself, or by his express
direction, evidenced by his signature either to the charge
itself, or to the bill of exceptions. Smith v. Times Pub.
Co., 329.
On an appeal from the decree of the Court of Quarter
Sessions, relative to the disposition of the place of pau
pers, nothing can be reviewed but the record and that
which has been put upon it in the manner prescribed by
the Act of March 16, 1868, P. L. 4, which provides for
exceptions to the court's finding on any matter of the law
or fact. (Super. Ct.) Overseers of Elderton v. Over-
seers of Plumcreek, 165.
Where a husband, for valuable consideration and with-
out prejudicing creditors, conveys land to his wife, the re-
cording of the deed is notice of her title and, thereafter,
her possession of the land is as effectual as if she had
owned it when they entered and made their home upon
it, and, while living upon it, the husband cannot have a
possession adverse to hers or, by the payment of taxes
upon it, impair her title. Reagle v. Reagle, 386.
REFEREE. The report of a referee upon a matter
of fact, under the act of June 16, 1836, is final and con-
clusive, except as to clerical or manifest and unquestion-
able mistakes, so obvious as to be plain to the referee at
once on being pointed out. It is of no consequence that
another referee, or judge reviewing the award, might
have reached a different conclusion. Reynolds v. Crevel-
ing, Miles & Co., 112.
In order to successfully challenge a referee's findings
of fact, it is not enough to point to evidence sufficient to
support a different finding. It must be shown that there
is no evidence sufficient to sustain the referee. This is
especially so after the findings have been considered and
approved by the court below. Philadelphia Co. v. United
Gas Improvement Co., 551.
Where the general findings of fact by a referee are
sufficient to support his finding of law, the fact that he
did not specifically find certain facts, upon which his
legal conclusions are based, is no ground for reversal,
when there was no request that he should make such
specific finding. Id.
REPLEVIN. In replevin, growing out of distress
for rent or arrears of dower, set-off, in the sense in which
that term is commonly used, is inadmissible. (Super.
Ct) Heffner v. Sharp, 458.
RES ADJUDICATA. In an action of trespass for
damages, resulting from a continuance of a nuisance, a
verdict and judgment for plaintiff in a former action, in
which the matter in controversy was the same, between
the parties, are conclusive evidence as to the existence of
the nuisance. (Super. Ct.) Hartman v. Pittsburgh In-
cline Plane Co., 27.
The rule that what has been judicially determined
shall not again be made the subject of controversy, ex-
t nds to every question in the proceeding which is legally
cognizable. Id.
The conclusiveness of a judgment or decree of the
Orphans' Court depends upon the jurisdiction of said
court. Reese v. Wildman, 193.
RIPARIAN OWNER. Where it appears that a
borough has passed an ordinance for the widening of a
stream within its boundaries, a riparian owner may be
enjoined, at the suit of the borough, from erecting in the
stream, in front of his land, a wall which will interfere
with the accomplishment of the object of the borough,
without waiting until the question of the right of the ri-
parian owner to erect the wall has been determined by a
trial at law. Commonwealth v. Stevens, 375.
ROAD LAW. The recognition by an owner of
land, abutting on a public street, which has been located
by a municipality but not opened, of the extent of said
street, or a reference thereto by him in deeds of land,
bordering on and contiguous to it, does not prevent such
owner claiming damages for the loss of land upon which
the street is laid out; such recognition does not amount
to dedication. (Super. Ct.) White v. Pittsburgh, 30.
Conveyances of land abutting on a street, merely laid
out, do not stop the grantor in such deeds from claiming
damages for the taking of other land bounding on the
the same street. Id.
A law which provides that damages for the opening of
streets and changing grades shall be passed upon by
viewers, appointed by the municipality, whose judgment error after a trial on the merits, but, if it can, the great
shall be final, unless appealed from, is unconstitutional. preponderance of authority is that a defendant in a
In re Petition of Cora E. Fisher, 169.
criminal case is not privileged from arrest on civil pro-
cess while attending court to answer the criminal charge.
Wood v. Boyle, 125.
Neither tax assessors nor the board of revision of taxes
have authority to lay out private streets or alleys on a
large lot, or to recognize any, except such as are laid out
by the owners. (C. P.) City of Philadelphia v. Thur-
low, 412.
SET-OFF. In replevin, growing out of distress for
rent or arrears of dower, set off, in the sense in
which that term is commonly used, is inadmissible. (Su-
per. Ct.) Heffner v. Sharp, 458.
Where a regrading of a street is necessary to receive
a pavement adopted by the municipal authorities, and no SHERIFF'S LEVY. Where a creditor has a lien
part of the cost is included in the calculation of benefits upon the real estate of his debtor, which has been assigned
assessed against the property affected, the property owner for the benefit of creditors, and, also upon his personal
has no standing to object to the regrading. Pittsburgh property by a sheriff's levy, made at his suit prior to the
v. Childs, 425.
assignment for benefit of creditors, if he be partially paid
After the authority of viewers, or road jurors, has ex-by a sale of the personal property, made after said assign-
pired, by the limitation of time, it cannot be renewed by
an order that they be reappointed and continued nunc
pro tunc, so as to enable them to continue to act under
the original oath. (Super. Ct.) In re Allegheny Ave-
nue, 435.
A township is not liable to adjoining property owners
for injuries resulting from a change of grade of a county
road, made by the supervisors. (Super. Ct.) Shoe v.
Township of Nether Providence, 437.
RULE OF COURT. The Supreme Court has
power to adopt such rules as, in its judgment, are neces-
sary for the prompt transaction of the public bu-iness,
and such rules must be regarded by the lower courts.
Peterson v. Atlantic City Railway Co., 97.
Where the effect of enforcement of a rule of the Com-
mon Pleas, made to compel prompt trial of an issue in
that court, is to deny other litigants their right to a hear-
ing in an appellate court, such enforcement is a violation
of law. Id.
ment, he is entitled to a dividend out of the proceeds of
the subsequent sale of the real estate by the assignee only
upon the balance of his debt, and not upon the whole of
it. (Super. Ct.) Assigned Estate of Wetzler, 514.
SHERIFF'S SALE. Where mechanics' liens,
filed subsequently to the recording of a mortgage dis-
close, on their face, that the date of the commencement
of the building in question was within six months, or if
the mortgagee has received distinct notice of the com-
mencement of the building before taking or entering his
mortgage, the mechanics' liens are prior liens and the
mortgage will be discharged upon a sheriff's sale of the
land. Assigned Estate of Miller and Mack, 142.
Land was sold, subject to a mortgage, it appeared the
mortgage referred to certain improvements on the land,
including a building with machinery. Subsequently to
the recording of the mortgage, mechanics' liens for the
erection of the building were filed within six months of
its erection. The liens did not state the date, but showed
As the rule of the Supreme Court recognizes the en-that the material and laber were furnished before the
gagement of counsel in a lower court only when he is date of the mortgage. All these facts were of record at
actually engaged in a trial, which has been commenced the date of the sale: held, the lien of the mortgage was
in the week previous to the one upon whose calendar is discharged, and the mortgagee was entitled to his share
the case which is called in the Supreme Court and is un-in the proceeds of the sale. Id.
finished, it is error for a judge of a lower court to insist SPECIFIC PERFORMANCE.
on the attendance of counsel who has a case upon the
week's list in the appellate court, and if he call the case
before him to be tried in the absence of such counsel,
the judgment will be reversed. Id.
SATISFACTION. Of judgment, striking off. See
PRACTICE. (Super. Ct.) Paul v. Eurich, 455.
SCHOOL LAW. The Act of June 6, 1893, P. L.
330, confers on the Court of Common Pleas power to as-
certain the facts and determine whether the directors of
school districts, within its jurisdiction, have exercised a
sound discretion in providing suitable building accom-
modation for all the school children in the district, and
to remove directors who fail in their duty in that respect.
Ross's Appeal, 427; Appeal of School Directors of
Kittanning Township, 430.
tract is executory, neither equity nor law will enforce it
against a positive term in the contract; specific perform-
ance is a matter of grace, not of strict right. Evans 7.
Taylor, 206.
Of traffic contract, when enforced see EQUITY. Cum-
berland Valley R. R. Co. v. Gettysburg and Harrisburg
Ry. Co, 72.
SPENDTHRIFT TRUST. See TRUST. (Super.
Ct.) Patrick v. Smith, 4.
STATUTE OF FRAUDS. Where the leading
object of one who makes an oral promise to pay the debt
of another is to subserve some interest or purpose of his,
and the promisee, relying on such promise, gives up a
valuable right, such promise is not within the statute of
frauds. (Super. Ct.) Burr v. Mazer, 157.
Where a sub-contractor foregoes his right to file a lien
In determining the question as to the fulfillment or non-against church property upon the distinct promise of a
fulfillment of their duty by directors, the Court is not
bound by the report of the inspector, appointed by it
under the provisions of the Act of 1893. Ross's Ap-
peal, 427.
The Supreme Court will not review the action of the
Common Pleas under the Act of 1893, except in the case
of manifest abuse of discretion. Ross's Appeal, 427;
Appeal of School Directors of Kittanning Township, 430.
School directors are not entitled to notice of petition,
under the Act of June 6. 1893, before appointment of
an inspector. Appeal of School Directors of Kittan-
ning Township, 430.
SERVICE. It is very doubtful whether a question
of privilege, in the service of a writ, can be considered in
member and trustee of the church, who had the principal
charge of the erection of the building, that he would pay
the debt, said trustee saying, "For God's sake don't
shame me and our church, I will pay you if you don't
lien," such promise is not within the statute of frauds re-
quiring the promise to pay the debts of another to be in
writing. Id.
While it is true that an easement is a liberty, privilege
or advantage in land, without profit and existing distinct
from the ownership of the soil, it is such an interest as is
included in the statute of frauds and must be founded
upon or acquired, so far as the evidence is concerned, by
grant or prescription, and, whilst an abandonment of an
easement once created must be in writing or by cesser, yet,
STATUTE OF FRAUDS—Continued.
STREET RAILWAYS-Continued.
inasmuch as a parol grant executed will be upheld and certain things with reference to the road on which its
sustained under the same circumstances and on the same track is laid, including sharing in the expense of a pave-
principles that a parol contract for sale of land would be ment of a certain kind, it is not in the power of the bor-
sustained, it follows that a parol agreement for the aban- ough to change the contract by the substitution of a dif-
donment of an easement will be sustained, when such ferent kind of pavement, without the consent of the com-
agreement has been so far executed as to make it in-pany, but the effort to impose an additional burden can-
equitable to rescind the same, but the mere agreement not release the company from its contract, and it will be
cannot have the effect of destroying an easement. (Super. liable for all expense incurred in accordance with the
Ct.) Hudson v. Watson, 160.
terms of the contract. Borough of Shamokin v. Sha-
mokin Street Ry. Co., 136.
STATUTE OF LIMITATIONS. A title resting
on the statute of limitations is marketable only when it
clearly appears that the entry of the real owner is barred.
Smith's Estate, 88.
See LIMITATION OF ACTIONS.
STENOGRAPHER. The shorthand notes of a
stenographer, made during the examination of a witness
at a former trial, cannot be read as a deposition, and, if
the stenographer is not sworn, they are not properly
proven notes of the examination, as required by the 9th
section of the Act of 1887. Smith v. Hine, 402.
STOCK DIVIDENDS. There is no presump-
tion that an increase of stock is a cover for the distribu-
tion of accumulated profits. City of Allegheny v. Fed-
eral Street & Pleasant Valley Passenger Ry. Co., 369.
A mere nominal increase in the number of shares
without the distribution of any of the funds of corporate
property among the shareholders, is not a stock dividend.
Id. and see CORPORATION. City of Allegheny v. Pitts-
burgh, Allegheny & Manchester Passenger Ry. Co., 366.
STOCKHOLDERS. In general, the stockholders
of a company have a primary right to subscribe in pro-
portion to their holdings for any new issue of stock,
although they may themselves determine otherwise and
order a sale to the public. Morris v. Stevens, 370.
An issue of stock, without giving opportunity to share-
holders to subscribe for the same, made by a de facto
board of directors, on the eve of a disputed election and
while quo warranto proceedings are pending against its
members, is illegal.
STREETS. The sale of lots, according to a plan
which shows them to be on a street, implies a grant to
the purchaser that the street shall be forever open to the
use of the public and operates as a dedication of it to
public use. The right passing to the purchaser is not
the mere right that he may use the street, but that all
persons may use it. Quicksall v. City of Philadelphia,
477.
The purpose of the Act of May 9, 1889, P. L. 173,
is to relieve land upon which streets have been laid out
by the owner, but not opened or used for twenty-one
years, from the servitude imposed. So where streets
have been laid out and dedicated forty-four years before
the commencement of proceedings, but have not been
opened or used by the public, and the beds of the streets
have been in the possession of abutting owners, it is too
late for the city to assert the right founded upon the dedi-
cation. Id.
STREET RAILWAYS. A street railway com-
pany has no right to cross a steam railroad, at a point
where there is no public highway, by passing under the
said road. Cumberland Valley R. R. Co. v. Harrisburg
& Mechanicsburg Electric Ry. Co., 85.
The provisions of the Act of May 14, 1889, P. L. 211,
that, upon payment into court of the amount of the
award of viewers, the right to build and use a portion of
a turnpike shall vest in the railway company is unconsti
tutional. Harrisburg, Carlisle & Chambersburg Turn-
pike Co. v. Harrisburg and Mechanicsburg Electric Ry.
Co., 86.
Where a contract is entered into between a borough
and a railroad company, by which the latter is to perform
A street railway company, organized under the Act of
May 14, 1889, P. L. 211, is authorized to construct and
operate its railroads on established streets and highways,
but it has no right to cross a steam railroad by means of
an overhanging bridge, at a point where no public high-
way exists, and an attempt to make such crossing should
be prevented by injunction. Northern Central Ry. Co.
v. Harrisburg and Mechanicsburg Ry. Co., 82.
SUBROGATION. The statute giving the right of
attachment gives the creditor, in express terms, process
for the enforcement of the judgment obtained in it and it
contemplates the employment of this process, before re-
sorting to any claim which the debtor has against the
garnishee. Ordinarily, this process is adequate for the
accomplishment of his purpose in issuing the attachment,
but if not, and subrogation to the rights of his debtor in
a judgment held by the latter against the garnishee, is
necessary for his protection, the creditor should apply to
the Court, and notify the plaintiff of the application; he
cannot, of his own volition, make himself a use plaintift
in the judgment and issue execution upon it. Wherry v.
Wherry, Administratrix, 395.
See TRUST. (Super. Ct.)
Patrick v. Smith, 4.
SUPERIOR COURT.
1895, requires bail for costs
appeal to the Superior Court.
the appeal may be quashed.
The Act of June 24,
to be given to perfect an
If such bail is not given,
(Super. Ct.) Marks v.
SUPERSEDEAS. A writ of certiorari will not
operate as a supersedeas, when the party taking it out
submitted to the jurisdiction of the court, to which the
writ is directed, by making a motion to quash the array
of jurors after the writ issued.
Wallace v. Jameson,
SUPREME COURT. The Supreme Court has
power to adopt such rules as, in its judgment, are neces-
sary for the prompt transaction of the public business,
and such rules must be regarded by the lower courts.
Peterson v. Atlantic City Railroad Co., 97.
Where the effect of enforcement of a rule of the Com-
mon Pleas, made to compel prompt trial of an issue in
that court, is to deny other litigants their right to a hear-
ing in an appellate court, such enforcement is a violation
of law. Id.
As the rule of the Supreme Court recognizes the en-
gagement of counsel in a lower court only when he is
actually engaged in a trial, which has been commenced
in the week previous to the one upon whose calendar is
the case which is called in the Supreme Court and is un-
finished, it is error for a judge of a lower court to insist
on the attendance of counsel who has a case upon the
week's list in the appellate court, and if he call the case
before him to be tried in the absence of such counsel,
the judgment will be reversed. Id.
The Supreme Court may, by the Act of 1891, reverse
a judgment, set aside the verdict on which it is based
and order a new trial, on the ground that the damages,
as shown by the testimony, are improper, although the
court below has been guilty of no error during the trial.
DEAN, J., dissents. Smith v. Times Pub. Co., 329.
SURETY. The fact that entries are made in
a book, showing more money than is found in the
drawer of a bank teller, does not render his bondsman
liable, if the facts do not disclose an actual loss to the
bank, Commonwealth v. Strickler, 261.
SURVIVAL OF ACTIONS. An action to re-
cover damages for personal injuries, caused by negli-
gence, survives the injured party and can be prosecuted
to final judgment and satisfaction by the personal repre-
sentatives of the deceased plaintiff. Taylor's Estate,
TAXATION. An assessment for the laying of
water pipe in front of premises, is not a tax, within the
meaning of the provisions of the Constitution authoriz.
ing exemption from taxation, and a burial ground is,
therefore, liable to such assessment, notwithstanding the
Act of April 8, 1873. City of Philadelphia v. Union
Burial Ground Society, 351.
THEATRICAL LICENSES. A theatrical Ji-
cense runs for one year from the date as of which the
fee therefor is paid. (C. P.) Gandy v. Oellers, 438.
Under the Act of June 24, 1895, the owner and lessee
of a house used for theatrical or operatic exhibitions may
settle, by contract between them, which one of them
shall pay the license fee, and the State is bound by the
agreement. Id.
Where theatrical performances have been given in a
theatre without payment of the license fee, and, subse-
quently, the house is leased to another person, who ap-
plies for a license and pays the fee for one year, request-
ing a license for one year from the date of payment, the
city treasurer has no authority against the will of the
applicant, to date back the license, so as to make the
payment apply to and cover a time, during which the un-
licensed performances were given. Id.
The purpose of the Act of June 24, 1895, P. L. 249,
Where one company acquires all the stock of another, is to impose a license fee upon places where plays are
giving its own stock, in a certain proportion, to the given by professional players, who play for compensa-
stockholders of the latter company in exchange for their
Where an exhibition is not given for individual
shares, such action is not equivalent to the declaration of profit, a building wherein theatrical plays are given by
a dividend by said company of the amount by which the amateurs, who are mere volunteers, is not liable to the
aggregate value of the shares taken by its stockholders ex- tax, even if a profit be derived from such performance,
ceeds the par value of the shares of its stock and, hence, which is devoted to purposes other than charitable, but
does not come within a provision of its charter requir-not to the use of the players. (Super. Ct.) Oellers v.
Horn, 559.
ing the company to pay a tax upon all dividends declared
by it. City of Allegheny v. Pittsburgh, Allegheny and
Manchester Passenger Ry. Co, 366.
A mere nominal increase in the number of shares,
without the distribution of any of the funds or corpo-
rate property among the shareholders, is not a stock
dividend. City of Allegheny v. Federal Street and
Pleasant Valley Passenger Ry. Co., 369.
There is no presumption that an increase of stock is
cover for the distribution of accumulated profits. Id.
Where a tract of land has been improperly sub-divided
by the tax assessor, in making an assessment for taxes
upon it, the remedy of the land owner is by appeal to
the board of revision of taxes to rectify the error. The
court of Common Pleas has no power to relieve him
upon petition to open a judgment obtained for taxes,
(C. P.) City of Philadelphia v. Thurlow, 412.
Assessment of taxes on land should follow the descrip-
tion of the land, furnished by the owner to the registry
bureau, except where the owner himself has sub-divided
his property, for the purpose of sale by lots, or where a
large tract of land crosses open public streets. Id.
Taxes assessed against property of a decedent, are
debts of record, and are not discharged by a private sale
under the provisions of the Act of April 18, 1853; they are
expressly excepted from discharge by the Act of March
23, 1867, section 2, P. L. 43. Appeal of City of Phila-
delphia, 176.
Taxes are not a personal debt of a decedent, and the
remedy of the city for collection of taxes is confined
to the property against which they are assessed. Id.
The tax involved in the payment of a theatrical li-
cense fee, under the Act of 1895, although, in form,
levied on a house, is not a tax on real estate but on the
Per SULZBERGER, J. Id.
trade, occupation, or profession of players and showmen.
TIME. Where parties agree that a thing shall be
done and no length of time is specified in which it is
shall be given, considering the character of the business.
to be completed, the law presumes that reasonable time
(Super. Ct.) Wright v. Monongahela Natural Gas Co.,
brought about by the plunging of a frightened horse over
TOWNSHIP. Whether the death of a person,
a portion of township bridge, at which there were no
guard rails, is the natural result of the absence of such
rails and should have been foreseen by the township
authorities, is a question for the jury under the circum-
stances of the case. Bitting v. Township of Maxatawny,
actions of an exceptionally vicious, ungoverned or un-
While a township is not bound to provide against the
manageable horse, it is bound to know that an ordinary
horse will, at times, take fright, and that its movements,
when frightened, are wholly unreasonable and unfore-
seeable, and what provision should be reasonably made
for the safety of travelers on the highway is for the jury.
Bitting v. Township of Maxatawny, 226.
A township is not liable to adjoining property owners
for injuries resulting from a change of grade of a county
road, made by the supervisors. (Super. Ct.) Shoe v.
Township of Nether Providence, 437.
TELEGRAPH COMPANY. In the event of
A township is not a municipal or other corporation in-
the failure of a telegraph company to deliver with rea- vested with the power of taking private property for pub-
sonable dispatch a cipher telegram, where the company lic use, within the provisions of section 8, Article XVI.,
is not informed of its contents, the damages are to be of the constitution, requiring such corporations to make
measured by the amount paid for its transmission. Fer- just compensation for property taken, injured or de-
guson v. Anglo-American Telegraph Co., 293.
stroyed. Id.
TESTAMENTARY CAPACITY. The exist-
ence of delusions will not destroy testamentary capacity,
unless they are such as dictate or substantially affect the
provisions of the will itself. Shreiner v. Shreiner, 171.
A witness must show that he understands what testa-
mentary capacity means, before any weight is to be at-
tached to his testimony on the question of the validity
of a will. Id.
TRESPASSER. A cow which crosses over a line
ditch between a railroad and a farm, which ditch has be-
come passable, cannot be said to be a trespasser on the
railroad. (Super. Ct.) Brooks v. Pennsylvania R. R.
Co., 212.
TRIAL BY JURY. The Act of May 20, 1891,
section 2, P. L. 101, providing that the Supreme Court
may, on appeal from a lower court, grant a new trial, is
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