8. In an application for the sale of real estate by a bankrupt's assignee, the
proper inquiry for both the assignee and the court, is on what terms will it bring
most for the creditors, subject to or discharged from, the incumbrances against it.
In re Iron Co., 274.
9. The right of an execution creditor or landlord upon a warrant issued before
the commencement of the proceedings in bankruptcy, is paramount to the assignee
in bankruptcy, and will control the funds against the general creditors. In re
Weamer, 275.
10. Where no question of disputable right exists, assignees in bankruptcy can-
not obtain the instruction of the court, whether to do a proposed act, which, if
proper on their part, would be within their own discretion and power on the ad-
ministration of their trust. In re Saving Fund, 276.
11.
bankrupt's wife. Stotesbury et al. vs. Cadwallader et al., 281.
Bankruptcy-Equity-Pleading-Amendment-Creditor's
12. Under the amendment to the 39th section of the bankrupt law, the debtor
will be required to file a list of his creditors, and the amount of their claims,
where an involuntary petition was filed against him since December 1, 1873, to
which he had made a denial and a demand for a jury trial, and had since filed a
demurrer. Bank vs. Palmer, 286.
13. A manufacturer was adjudged a bankrupt, and the goods and chattels at the
manufactory building were ordered by the court to be sold by the marshal, and the
proceeds to be paid to the assignee that should be afterwards appointed. A sale
was made and the marshal paid over to the assignee $2,166.74. The 4th section of
the State landlord and tenant act secures to the landlord a preference over other
creditors for one year's rent, from the proceeds of the sale of personal property on
the demised premises. A subsequent law extends the same privilege to operatives
in manufactories for one month's wages. In this case there was due to the land-
lord for one year's rent $2,700, and to the operatives about $1,800. The landlord
proved his debt, including the rent, without naming his lien or security, and took
part in the election of an assignee, as an unsecured creditor, and afterwards, on
ascertaining his privilege, asked leave to amend the proof by setting forth his
security. The assignee claiming that he ought not to be allowed to amend; or, if
allowed, that the operatives were entitled to be paid in full, one month's wages, in
preference to the claim of the landlord. It was held:
That a creditor, having a lien, and proving his demand in ignorance of his privi-
lege, without naming his security, should be allowed, in the absence of fraud, to
amend his proof. In re McConnell, 287.
14. That it was not designed, by the 28th section of the bankrupt act, to give
to the five classes of creditors there enumerated, any priority over secured credi-
tors. Id.
15. That by the State laws, landlords and operatives, in cases of this sort, stand
on the same footing, and being equally favored, are entitled to the payment of their
preferred claims pro rata. Id.
16. An assignee in bankruptcy may appeal from an award of arbitrators under
the compulsory arbitration law, without the payment of costs, the adverse party
having taken out the rule of reference. Morss vs. Gritmann, 573.
A power of attorney to institute suit, executed by the president of a bank with-
out authority from the board of directors, is not sufficient. Citizens' Bank vs.
Keim, 311.
BILL OF DISCOVERY. See EQUITY.
BILLS AND NOTES. See AFFIDAVIT Of Defence, 1.
1. Notice of protest having been left with A on Sunday, being told what it was,
and the following Monday being in time to serve said notice: Held, that that was
sufficient. Bank vs. Rheem, 462.
2. A merchant agreed to accept bills drawn by his correspondent to the amount
of two thirds of the value of an intended shipment. The vessel and cargo were
lost, and the consignees were authorized by all parties in interest to settle with the
insurance company for two-thirds of their claim. The consignors having drawn
in excess of the amount agreed, and the insurance money being consequently in-
sufficient to pay all the drafts, the court held that they ought to be paid in full in
the order in which they were presented, until the fund was exhausted. Cabada
vs. De Jongh et al., 422.
BILLS AND NOTES-(Continued.)
3. Promise to pay debt of another-Indorser of note. Wilson vs. Martin, 470.
4. In a suit against three drawers of a joint promissory note, where there
has been service of the writ upon two only, a copy of the note and a mere state-
ment filed are sufficient to entitle the plaintiff to judgment against those served-
under the 5th section of the act of March 21, 1806. Donough vs. Boger et al., 616.
5. The notice required to be given by surety to a principal in order to dis-
charge him from undoubted legal liability should be clear and explicit to proceed
and collect the debt. Id.
6. The notice should be given after the maturity of the note, and reasonable
time to proceed should be allowed, and the affidavit should state with certainty
all the material facts required. Id.
1. The authority given to the board of surveyors under the direction of the city
councils, by the act of June 6, 1871, P. L. 1353, to confirm or reject plans or re-
visions of plans of surveys and regulations, invest them with power to alter or
amend such plans in whole or in part, by blotting out or vacating one or more of
the streets on such plans, and substituting others, or by adding new streets, and
the action of the board upon any such plans unappealed from, is a finality. In re
Arch Street, 117.
2. When a plan has been sent back, after a hearing, to the board of surveyors
for reconsideration, and the board having reconsidered it, and by resolution con-
firmed it again, this is not a final judgment, but a person interested may take an
appeal to the Quarter Sessions. Duhring's Appeal, 181.
3. The presumption is that the plan of the board is a proper one, and the court
ought to be satisfied of clear mistake or abuse of power before they will reverse
it. Id.
A treasurer's bond, given on his re-election in 1873 for the faithful accounting
for funds coming into his hands for the term, will cover funds then remaining iù
bis hauds from prior terms. De Hart vs. McGuire, 359.
1. The officers of the borough of Ashland must be qualified electors of the
borough, and if any officer during his term ceases to be an elector, as by removal
from the borough, he also ceases to be one of its officers. Comm. ex rel. vs.
Lally, 507.
2. The burgess of a borough incorporated under the general borough law of
1851, has no right to act as a member of the town council, and cannot refuse to
sign ordinances regularly passed by the town council, on the ground that he was
not present as a member when they were adopted. Comm. ex rel. Shepp et al. vs.
Kepner, 510.
3. The chief burgess of a borough has the right to take proceedings in the
nature of a quo warranto to oust a councilman under the act of 1860, for being
interested in a contract for furnishing materials to said borough. He has a suffi-
cient interest to make him a competent relator. Comm. ex rel. Henry S. Kepner
vs. Daniel Shepp, 518.
4. A member of a town council, who is charged in a suggestion in the nature of
a quo warranto, with having an interest in a contract for furnishing supplies
to the borough of which he is an officer, must, in his plea, disclaim or justify.
If the plea contain nothing of substance, if no material issue could be formed
upon it, judgment will be given upon the record, as if the bad plea had no ex-
istence. Id.
1. The word "rural" in the building inspection act of 1855 is not construed the
same as in the tax act of 1854. Hancock vs. Thayer, 25.
2. Whenever the neighborhood is so compactly built up as to give it the char
acter of the built-up portion of the city, the building inspection will apply and be
enforced. Id.
3. The act of 1855 requires that all new buildings fronting on a court of less
width than twenty feet shall recede so that the court shall be of that width; this
act is constitutional and the owner is entitled to compensation. In re Perry's
Court, 27.
BUILDING INSPECTORS-(Continued.)
4. A building erected upon a corner lot fronts upon both streets or alleys upon
which it bounds, within the meaning of the act of April 21, 1855, and the streets
or alleys must be twenty feet wide. City vs. Michener, 30.
1. A private claim to the right of interment in a cemetery lot will be enforced
by mandamus. Comm. ex rel. vs. Cemetery Association, 385.
2. A provision of the charter of a cemetery company which prohibits the trans-
fer of lots without consent of the managers, is binding upon grantees, and a trans-
fer without such approval passes no title. Id.
3. A lot-holder who has executed and delivered a deed of transfer of his lot, un-
approved as aforesaid, still has the right to order and compel an interment in said
lot. Id.
See BUILDING INSPECTORS, 1, 2. COLLECTOR of Delinquent TAXES, 1.
BOARD OF SURVEYS, 1, 2, 3. PUBLIC BUILDING COMMISSION. COUN
CILS. EVIDENCE, 14. PASSENGER RAILWAYS, 2. ROADS AND STREETS.
1. A passenger railway company having laid their road in the streets of the city
of Philadelphia, under authority of a charter from the State, are liable to the regu-
lations adopted by councils for the preservation of the public rights in the high-
way. Railway Company vs. The City et al., 72.
2. But where an obstruction arises by the laying of another railway track on the
same street, under a subsequent charter, it is not reasonable ground to authorize a
city ordinance to require the removal of the first track, and such removal by the
city authorities is illegal, and will be restrained by injunction. Such removal is
not a public work under the act of April 8, 1846. Id.
3. A passenger railway company having accepted their charter with the knowl-
edge that the city possessed the most ample power to legislate by ordinance as to
her streets and highways, to make all needed regulations for the most convenient
enjoyment of the same, by the citizens of the Commonwealth, they are bound by
an implied agreement to hold their special privileges subject to a proper exercise
of this power by the councils of the city. Id.
4. The vital question in every such case is, is the regulation or order of the mu-
nicipal authority reasonable and necessary? If it is, it will be maintained; if it is
not, it will be set aside. Id.
5. The park commission has power to use the name of the city of Philadelphia
in any proceeding at law or in equity that may be necessary to carry into effect
the objects referred to in the act creating the commission. The City vs. Railway
Company, 165.
6. Under the acts of Assembly relating to Fairmount Park, the city councils
alone are authorized to determine when city loans shall be issued for the perma-
nent improvement of the park. Comm. ex rel. vs. Park et al., 445.
7. The power of the Legislature of the State over the streets of the city are so
ample, that no matter what hardship may be imposed upon citizens owning or oc-
cupying property thereon, equity can give no relief. Maris et al. vs. Railway
Company et al., 41.
8. The State having granted a right to lay rails on a street, to one corporation,
cannot grant any right to another, which will interfere with that right first
granted. Id.
9. A grant of right to cross any "railways and railroads now or hereafter to
be laid on Market street," does not give a right to cross a railroad now con-
structed. Id.
10. By the act of April 21, 1858, it is provided that no contract shall be binding
upon the city of Philadelphia unless an appropriation sufficient to pay the same be
previously made by councils. Held, that where an appropriation was made suffi-
cient at the time to pay the contract in full, a subsequent diversion of the same to
other objects by the city left the city liable as though such diversion had not been
made. McGlue vs. City, 348.
11. Where the city has directed that a stream partly natural and partly artificial
should be culverted, defendant, who was the contractor to fill up and grade a
street, will be restrained from filling up the stream before the culvert has been
erected. Sanger et al. vs. City et al., 338.
12. If property-holders nominate A to the commissioners to do the paving, the
fact that they nominate another person afterwards, does not revoke their nomina-
tion of A. Long et al. vs. O'Rourke et al., 129.
13. ALLISON, P. J., dissents. Id.
14. The duties of a county treasurer, by the consolidation act of 1854, devolve
upon the city treasurer. Comm. vs. Fox, 204.
CHARTER. See CORPORATION.
Where defendants undertake merely to forward a claim for collection they can
only be held liable for fraud or concealment, and the statute of limitations will be
a bar to an action against them. Morgan et al. vs. Tener et al., 412.
COLLECTOR OF DELINQUENT TAXES.
The act of March 24, 1870, creating the office of collector of delinquent taxes,
does not authorize the collector to sell the goods of a tenant for taxes due by the
owner. The collector has only the power given him in this act. McAfee vs.
Bumm, 157.
CONSTITUTIONAL LAW. CORPORATION, 15. SALARIES.
1. The 27th section of Article III. of the new Constitution is obscurely worded,
but its manifest purpose was to get rid of the State officers of inspection. Elton
vs. Geissert et al., 330.
2. When the Constitution says, no office for inspection or measuring shall be
continued, and an intent to the contrary does not appear, we are to suppose the
convention intended to mean that they should not be continued after the adoption
of the Constitution. Id.
3. What is said upon the floor of the convention is a proper aid in an investiga-
tion of this character. Id.
4. The general sections 26 and 29 of the schedule do not control or modify the
27th section of Article III., as it is "otherwise provided in the Constitution." Id.
5. The schedule was added to prevent inconveniences from changes in the Con-
stitution; this, in its effect on persons in office, was intended to prevent incon-
venience to those who filled offices, in harmony with the instrument, not to those
who were to be deprived of office by its adoption. A general provision in statutes
does not overrule a special provision, when both can be so construed as to stand.
Id.
6. Penalties collected by magistrates under act March 29, 1869, are payable into
the county treasury, under the 13th section of Article V. Constitution of 1873.
Comm. ex rel. vs. Randall, 451.
7. The act of April 14, 1851, authorizing judgments to be taken in certain cases
where no affidavit of defence is filed, in Schuylkill county, is not annulled or re-
pealed by section 26 of Article V. of the new constitution. Bright vs. Coal
Co., 609.
8. Where it was intended by the constitution to annul or abrogate any existing
law, the intention is expressed in unambiguous language. Id.
9. The right of eminent domain in the State cannot be restricted except as
provided by the constitution, delegated by the inherent power of the people. It
is an infringement of that instrument to allow private property to be taken for
private use. This can only be done for public purposes, and by paying or securing
the payment thereof. The 10th section of Article IX. is a disabling, not an
enabling, clause. Railroad vs. Lawrence et al., 604.
CONTRACT. See EQUITY, 15. EVIDENCE, 3.
The provision of a railroad contract that the decision of the engineer shall be
final and conclusive in any dispute which may arise between the parties relative to
or touching the same, does not include within its terms of submission damages
happening to the plaintiff from a rescission of the contract. McGovern vs.
Bockius, 438.
A defendant will be restrained by injunction from using the title of a dramatic
composition which has been copyrighted, even though the body of the play in-
tended to be presented under that title may be different from the copyrighted play.
Shook vs. Wood, 373.
CORPORATION. See EQUITY, 22, 35, 36, 37, 38, 39. INSURANCE. FIRE Co.
1. The act of 1856, in relation to dissolving corporations, applies to such as are
directly incorporated by the Legislature. In re Credit Mobilier, 2.
2. This court will not make an order for the dissolution of a corporation, if it
would prejudice the public welfare or the interest of the corporators. Id.
3. A charter will not be approved where membership is not restricted to citizens
of this commonwealth, or where there is a provision that membership is to be
forfeited upon enlistment in the army or navy. In re Benevolent Society, 19.
4. Substantive alterations of a charter should be assented to by the body who com-
pose the corporation, and where that body is the stockholders, the directors or trus-
tees have no power to accept or reject such alterations. Brown vs. Mining Co., 32.
5. There must be a regular acceptance of the alterations of a charter before they
can bind the members. Id.
6. The Legislature cannot alter a charter so as to impair the terms of the con-
tract between the members and the corporation. Id.
7. The Court of Common Pleas has no authority to incorporate a club with the
provision that each share shall be entitled to one vote. Comm. ex rel. vs. Conover,
8. The acts only authorize the court to confer such immunities as by the common
law were necessary to constitute a corporation. Id.
9. Membership of a corporation-Right to vote. Comm. vs. Burial Society, 68.
10. Under the act of February 18, 1869, the courts will not approve an act of
incorporation of a company to trade in real estate for the benefit of the stock-
holders alone. In re Building Co., 106.
11. Service on a director of a corporation under the act of March 17, 1856, is
good, where none of its officers reside in the county, and part of the property of
the corporation is in the county, and the articles of association desiguate the
county as the place of its principal office. Grubb vs. Manufacturing Co., 316.
12. A mortgage given by a corporation on its leasehold interest, machinery and
fixtures and no objections made against its validity by the company, cannot be
defeated by an assignee in bankruptcy of the company on his affidavit that it was
given without due authority. Lewis vs. Axle Works, 334.
13. Corporate franchises cannot be declared forfeited, or lapsed to the Common-
wealth, by bill in equity. Lejee vs. Railway, 362.
14. Under the act of June 19, 1871, Purd. 288, courts may give relief by injunc
tion at the suit of private parties, or of corporations, when it is alleged that private
or individual rights are injured or invaded, by any corporation claiming to have a
franchise, to do the act from which the injury results. Id.
15. Questioned-Whether corporate franchises which have become vested by
acceptance or otherwise, can be taken away or declared forfeited to the Common-
wealth, by an alteration or amendment of the Constitution of the State. And
whether such grant is not protected by Article 1, section 10, of the Constitution
of the United States. Id.
16. It must appear by petition or affidavit that at least three signers of articles
of incorporation are citizens of Pennsylvania. In re Beneficial Society, 380.
17. The articles must show the place where the business is to be transacted; the
location of its office is not sufficient. Id.
18. Notices of application for charter must be published in the Legal Intelli-
gencer and two general newspapers. Id.
19. Such notice should specify particularly the time and place of such intended
application. Id.
20. Requisites of application for charter, examined and discussed. In re Relief
Association, 546.
Testator devised to his wife in trust for herself and children, and, after a certain
time, "if the executor thinks it will be more productive," the property to be sold,
and the money divided. The parties in interest, having elected by deed to take
the land in lieu of the proceeds of the sale thereof-Held: That a deed from them,
without joining the executor, passed a good title to defendant. Twaddell vs. Land
Co., 63.
COUNCILS. See FAIRMOUNT PARK, 1. PASSENGER RAILWAYS, 2. ROADS AND
STREETS, 8. BOROUGHS, 3, 4.
1. Private citizens, having no particular or special interest to be affected, have
not the right to ask for a quo warranto to oust a member of councils. Comm. ex
rel. vs. Horne, 164.
2. The office of councilman is a town office. Comm. ex rel. vs. Bumm, 162.
3. A citizen who claims a seat in councils in place of one who has removed from
the ward, has sufficient interest to entitle him to a writ of quo warranto to deter-
mine the question of forfeiture. Id.
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