COVENANT. See EQUITY, 12.
1. Equity will restrain a defendant from carrying on the business of horse-shoe-
ing "in Germantown or its vicinity" when the defendant has entered into an
agreement with plaintiff to that effect. Carroll vs. Hickes, 308.
2. Before a covenant not to practise medicine "in the neighborhood" can be
enforced in equity, evidence must be given to show the extent of the practice sold
to plaintiff. McNutt vs. McEwen, 112.
3. Covenant based on a deed of conveyance of land, containing a general war-
ranty. Hauck vs. Single, 551.
CRIMINAL LAW. See EVIDENCE, 12. ALDERMEN AND JUSTICES.
1. The statute of limitations is a bar to an indictment for bigamy. It begins to
run from the date of the second marriage. Comm. vs. McNerny, 206.
2. One who pursues and arrests a thief who has stolen a mule, is not thereby
entitled to the reward allowed by the act of 1821 for the pursuit and arrest of a
horse thief. Comm. vs. Edwards, 215.
3. A partner cannot be indicted for forgery of an instrument of writing with
intent to defraud the copartnership. Comm. vs. Brown, 184.
4. An attempt to illegally vote is an indictable offence. Comm. vs. Jones, 211.
5. The distribution of prizes by chance amounts to a lottery. Comm. ex rel. vs.
Sheriff, 203.
6. The Commonwealth is allowed to stand aside jurors without assigning cause
of challenge. Comm. vs. Keenan, 194.
7. An indictment under the act of May 3, 1871, should charge that the offence
was committed in the Twenty-second ward. An indictment general in its terms
is not sufficient under this act. Id.
8. As there are two acts of assembly requiring licenses to theatres, an indictment
against the proprietor of a theatre should allege under which act the charge is
made. Comm. vs. Fox, 204.
9. Where a statute creates an offence, and, on conviction, imposes a penalty,
without prescribing a method of prosecution, the proceeding may be instituted
either by summons in debt, in the name of the Commonwealth, for the uses directed
in the statute, or by warrant of arrest, at the discretion of the justice. And in
such a case there is no appeal. The Legislature may declare a new offence, and
provide a mode of ascertaining the guilt of one charged with it, as well as the
measure of punishment. Comm vs. Davenger, 478.
10. A summary proceeding must be predicated on an information containing the
day and the place of the taking of it, the name of the informer, the name and
official designation of the magistrate taking it, the name of the offender, together
with an exact description of the offence, and the time also of its alleged commission
-not the precise day, perhaps, but one within the limitation fixed in the particu-
lar statute for prosecution. Id.
11. The record of a conviction or judgment must show that a strict observance
of these preliminaries has been had; further, that the defendant was summoned,
or had notice of the charge, and an opportunity to make his defence; that he was
convicted on confession, or that evidence, such as is within the approval of the
common law, was adduced in support of the charge, giving the evidence or the
exact substance of it, not its effect or result, and that the witnesses were sworn or
affirmed. The particular circumstances should also be set out, showing jurisdiction
and a conformity with the law on the part of the justice. Conviction, judgment,
and execution according to the common law, or as varied by the statute, should
follow; though, unless specially so provided, the alternative duration of inprison-
ment on failure to pay or to furnish a sufficient distress, need not appear in the
conviction. Imprisonment is a part of the warrant of execution, and must be set
out therein. Id.
1. While no statute or principle of public policy intervenes, but a rule of law
is a mere privilege which may be waived, such waiver may be as well by a cus-
tom known to and acquiesced in by the parties, as by an express contract. Colket
et al. vs. Ellis et al., 375.
2. A custom among brokers to sell stocks deposited as collateral security for a
call loan, at the board, on failure of the borrower to pay on the day on which
demand is made, is not illegal as to parties familiar with and dealing on the basis
of such custom. Id.
DAMAGES. See LANDLORD AND TENANT.
1. The charter party stipulated that the ship should "be discharged as fast as
the custom of the port will admit," and demurrage to be charged after the expira-
tion of ten days. Held, that after that time she was entitled to demurrage, al-
though it was occasioned by the pre-occupancy of the wharf by other vessels.
Futterer vs. Abenheim, 225.
2. Where a vessel is required to load or discharge her cargo at a particular dock,
and she is there detained by reason of its crowded condition, the delay must be
compensated by the charterer. Id.
1. A lapsed legacy or devise usually falls into the residue and goes to the re-
siduary legatee or devisee. If there be no residuary legatee or devisee, or if the
lapse be of a part of the residue itself, then it passes as intestate property to the
next of kin or heirs of the testator. Lovett vs. Lovett, 537.
2. An executory devise may be limited to take effect after several intervening
estates, either vested or contingent, if the final contingency upon which it is to
vest be not too remote; that is, it must happen, if at all, within a life or lives in
being and a competent time afterwards. Id.
1. A libel in divorce should state that there was an actual marriage, not a mere
agreement to marry. Brinckle vs. Brinckle, 1.
2. The libel in divorce must allege "cruel and barbarous treatment." It is not
sufficient merely to prove it by depositions. Schlicter vs. Schlicter, 11.
3. In a libel for divorce by a husband against a wife, he must allege that the
respondent by her "cruel and barbarous treatment," rendered his condition in-
tolerable or life burdensome. Pennington vs. Pennington, 22.
4. The act of March 9, 1855, does not alter this rule. Id.
5. It seems that a marriage under the duress of an arrest and threat of imprison-
ment on a false charge is ground for divorce. Pyle vs. Pyle, 58.
6. In this case the court refused to find such duress upon the unsupported testi-
mony of the libellant. Id.
7. It is only after a sentence nullifying or dissolving a marriage, or a conviction
of bigamy, that the parties are at liberty to marry again as if they had never been
married: Harrison vs. Harrison, 1 Phila. 389, and Howard vs. Lewis, 6 Id. 55,
cited and followed. Thompson vs. Thompson, 131.
8. A libel may state that the marriage was contracted in the month of January,
but the respondent has the right to call for a particular statement of the exact
time, manner, etc. Brinckle vs. Brinckle, 144.
9. An amendment to a libel in divorce will be allowed even after it has been re-
ferred to an examiner, if he has not entered upon the performance of his duties,
and no hardship would be imposed upon the respondent by the amendment.
Toone vs. Toone, 174.
10. The court in a proceeding for divorce may direct that the person, to whose
custody the child is given, shall give bond to produce it in court whenever a judge
may direct. Deringer vs. Deringer, 190.
11. A had been ordered by the court to pay $5 per week for the support of his
wife, and afterwards was divorced from his wife by an act of assembly:-Held,
that he could not be obliged to pay anything further after the passage of the act,
but the court declined to vacate the original order. City vs. Theile, 205.
12. In proceedings in divorce, if a subpœna is served on a person residing in
Massachusetts, it is as good a service as publication of notice by advertisement.
Snyder vs. Snyder, 306.
13. An answer or a plea should have the same caption or superscription as the
suit. An admission of the allegations in a declaration is not presumed because
the plea has the same caption as the declaration. Brinckle vs. Brinckle, 339.
14. No decree of divorce can be pronounced by the courts of Pennsylvania
which can affect the rights of the respondent, being a non-resident, and having no
notice, and a decree under these circumstances, the notice merely being statutory,
can have no extra-territorial effect, and is not conclusive upon the respondent.
Love vs. Love, 453.
15. The respondent in proceedings for divorce lived in this county.
dence was known to her husband, and his relatives, and probably to his counsel.
The libel was not signed with the libellant's name. The subpoena and alias
subpoena were returned nihil.
The proclamation was inserted by the direction of counsel for libellant in an out
of the way place in a weekly paper, that it might not be seen.
The notice of the time and place of taking testimony before the commissioner
was not served personally on the respondent as directed by the court.
Held, That the court had power to reverse a decree of divorce thus obtained
from it. Wanamaker vs. Wanamaker, 466.
The widow of a tenant in fee which fee is determined by the death of the tenant
without issue, is entitled to dower in the estate thus determined. Lovett vs.
Lovett, 537.
Druggists and apothecaries having the right to retail liquors for the purpose
mentioned in the statutes are retailers sub modo. Comm. vs. Porter et al., 217.
The word retailer cannot be construed with reference to them and their business
as druggists. Id.
It is not to be inferred because the constable in his return calls them "retailers
of liquors," that they sold and delivered liquors to be used as a beverage. Id.
DURESS. See DIVORCE, 5, 6.
EASEMENT. See PARTY WALL, 2.
The legal remedy for disturbance of a right of way is an action of trespass on
the case. Jones vs. Park, 165.
ELECTIONS. See CRIMINAL Law, 4.
1. The numbering of the ballots required by the new constitution is a wise pro-
vision, intended as an additional safeguard against fraud, and whenever votes have
been received and counted which are shown to have been illegal, and which, if
thrown out, would alter the result of the election, the court will order the ballot-
boxes to be opened, in order to ascertain for whom the illegal votes were cast. But
the court will not order this to be done unless the illegal votes proved are sufficient
in number to alter the result of the election. Daly vs. Petroff, 389.
2. An election may be characterized by such an amount of fraud, and be at-
tended by circumstances evincing such a total disregard of the election laws, and
of the rights of the honest electors, as to require the court to throw out the entire
return from the division in which these wrongs have been perpetrated. But the
power to throw out an entire division is one which ought to be exercised with the
greatest care, and only under circumstances which demonstrate beyond all reason-
able doubt that the disregard of the law has been so fundamental or so persistent
and continuous that it is impossible to distinguish what votes were lawful and
what were unlawful, or to arrive at any certain result whatever; or where the
great body of the voters has been prevented by violence, intimidation and threats
from exercising their franchise. Id.
3. Former paupers in the almshouse, who have been discharged as such, but
who remain in that institution under contract of service for hire, are entitled to
vote as residents of the precinct. In re Registry Lists, 213.
4. The act of April 4, 1872, changing the time of holding the municipal elec
tions in the city of Scranton, from the first Tuesday in June of each year, to the
first Friday in May, and repealing "all acts and parts of acts inconsistent" there.
with, was not designed to blot out all laws for the holding of municipal elections
in that city after the year 1872. Though inartistic and vague in its terms, still
there is enough about it to indicate the legislative intent, which was to change the
time of holding the municipal elections, not for the year 1872 alone, but perma-
nently thereafter. Bouton vs. Royce, 559.
5. When a complaint in a contested election proceeding is in due form upon its
face, it is the duty of the court to take jurisdiction, and to make such orders and
decrees as will speed the investigation. When, however, the prerequisites neces-
sary to confer jurisdiction have not been complied with, as shown by the face of
the complainant itself, the proceeding will not be entertained, but, on the contrary,
it will be dismissed at once. In re Barber, 579.
6. A proceeding to contest an election, is in the nature of an appeal by the peo-
ple to the court from an undue election or false return. The act of assembly
authorizing it, is remedial in its character, and should be construed liberally, and
for the advancement of the remedy. Id.
7. Where a complaint contesting an election to the office of prothonotary, pur-
porting on its face to be signed by thirty qualified electors, two of whom have
vouched its correctness under oath, has been filed in the proper office; and sub-
sequently it is found that one of the thirty complainants, though a well-known
citizen, did not at the time he attached his signature, possess all the qualifications
of an elector, the court will not, for this reason alone, dismiss the complaint; but,
if the case be a proper one, will, in the exercise of a sound discretion, permit it to
be amended by allowing the name of another person possessing all the qualifica-
tions of an elector, to be attached thereto, accompanied by appropriate vouching;
and, thus, bring the proceeding not only within the letter, but within the spirit
and purpose of the law. Id.
8. The election laws were enacted to be observed, not to be set at naught. They
are mandatory, not directory. When the terms of a statute are absolute, explicit
and peremptory, no discretion is given, and when penalties, sharp and severe, are
imposed against the violation of its respective terms, they have the effect of nega-
tive words, and render its observance imperative. Id.
9. The act of July 2, 1839, and the act of April 17, 1869, contemplate that nothing
less than a record shall be kept of the manner in which the right of the elective
franchise has been exercised. The former requires that it shall consist of a list
of voters, tally-papers, certificates of the oaths taken and subscribed by the in-
spectors, judges and clerks; and, in addition to these, the latter requires that it
shall consist of the affidavit of a witness together with the affidavit of every person
voting, whose name appears on the list of voters, but not on the registry list. This
record is to be filed in the proper office, and "be subject to examination." Id.
10. Whenever, therefore, a record thus made up and filed, exhibits on its face
that the officers conducting the election have negligently, recklessly, and in viola-
tion of their sworn obligations, disregarded the plain mandates of the law, no
favorable presumption whatever attaches to their return. On the contrary, being
thus false upon its face, there can exist in connection with it no peculiar or in-
describable sanctity which will exempt it from the same untoward presumption
attaching always to every record of official misdoing. Id.
11. In adjudicating, however, upon a contested election, it is the duty of a court,
whenever the possibility to do so exists, to see that every legal vote cast be counted,
not thrown away. And it is only when the whole proceedings connected with the
election at any poll, whether shown by the face of the papers, or, aliunde, are so
tarnished by the fraudulent, or criminally negligent conduct of the officers, as to be
altogether unreliable, that a court will be warranted in casting out wholly the re-
turn of such poll from the general count. Id.
12. But human laws can never be so constructed that courts can render perfect
justice under all circumstances. Occasions will arise when approximate justice is
all that can be administered. When, therefore, legal and illegal votes have been
counted indiscriminately, and a majority has resulted in various districts embraced
in the general return, whether for one candidate or the other, the only means
whereby even approximate justice can be reached, is to require him for whose ad-
vantage such majority districts enure, to lift the curse which the law has imposed
upon the illegal ballots, otherwise they will be deducted from his count. Id.
13. The doctrine in Duffy's Case, 4 Brew. 531, 2 Luz. Leg. Reg. 49, reasserted.
Id.
EQUITY. See LANDLORD AND TENANT, 6. CORPORATION, 13, 14. ROADS AND
STREETS, 3. NUISANCE.
1. Preliminary injunction will not be continued where plaintiff has slept upon
her rights for years. Parker vs. Spillin, 8.
2. An injunction will be granted to restrain the sale of a wife's property for the
debt of her husband, where her title is clear and undoubted. Allen vs. Benners
et al., 10.
3. Unless plaintiff can show that he was actually a partner, an injunction will
not be granted nor a receiver appointed. Simms vs. Brouse, 13.
4. A person who holds the legal title to church property and claiming that the
church is indebted to him, but his claim not being substantiated, will be compelled
to convey the property to the equitable owner and pay the costs of the proceed-
ings. Beatty et al. vs. Henry et al., 35.
5. If the answer of defendant cannot by act of assembly be admissible in evi-
dence against him if he were charged with a misdemeanor, he will be compelled to
answer complainant's bill. City vs. Keyser, 50.
6. The fact that defendant has given plaintiff a bond for the performance of his
duty does not prevent plaintiff proceeding in equity against him. Id.
7. The jurisdiction in equity having once rightfully attached, it can be made
effectual for complete relief. Id.
8. In equity, all parties to be affected by the decree must be joined. Pettit vs.
Baird, 57.
9. A court of equity will not restrain a creditor from levying upon the property
of his debtor's wife, when by fraud and collusion she has been active in defeating
her husband's creditors, or when her title to the property is disputed. The credi
tor has a right to test ownership, and she will be left to her remedy at law. Sim-
son vs. Bates, 66.
10. The court declines to make a decree upon a judgment pro confesso which ap-
pears to have been taken collusively. Ash vs. Bowen, 68.
11. Equity will not restrain the payment of purchase-money to defendant, when
no interest of plaintiff will be jeopardized by such payment. Thomas vs. Abbott, 78.
12. A grantee who takes a conveyance with full knowledge of a covenant in re-
lation to the land made by the grantor, but not contained in the deed from the
grantor to the complainant, will be restrained by injunction from a violation of the
covenant. Bricker vs. Grover, 91.
13. A return of nulla bona is not sufficient to found a bill under the act of 1863,
making the officers of certain corporations liable in equity for their debts.-The
return must set out that no real or personal property of the corporation was ex-
hibited to the officer, sufficient to satisfy the debt, as required by the act. Bacon
vs. Morris, 93.
14. Plaintiff should allege in his bill his right to a drain which he alleges de-
fendant is about to obstruct. Barry vs. McAvoy, 99.
15. A residuary devisee of real estate cannot sustain a bill to compel the execn-
tion of a contract of decedent against his executors and the vendor. The estate
must be settled in the Orphans' Court Lowry vs. Lowry, 105.
16. The prayer of a bill for an injunction, against parties not named in the bill,
and not in court, cannot be granted. The decree must be against the parties
named in the bill. Long vs. Dickinson et al., 108.
17. Before a covenant not to practise medicine "in the neighborhood" can be
enforced in equity, evidence must be given to show the extent of the practice
sold to plaintiff. McNutt vs. McEwen, 112.
18. A motion to dissolve an injunction can only be made after answer filed. This
does not apply to ex parte injunctions. Heyl vs. City, 112.
19. A license to take away soil, sand, etc., where the grantee has expended
money on the faith of it, cannot be revoked. Davis vs. Souder, 113.
20. A bill for discovery in aid of execution is a proceeding in equity, and should
be printed, as required by the equity rules. Etting et al. vs. Levy et al., 139.
21. Equity will not restrain a proceeding by landlord against tenant for posses-
sion upon grounds, such as change of title, which may be asserted by the tenant in
the proceeding itself. Vanarsdalen vs. Whitaker, 153.
22. If plaintiff's firm-name falsely imply that they are a corporation, a court of
equity will not assist them. McNair vs. Cleave, 155.
23. A Chinese laundry in a basement so conducted as to injure the trade of a
tradesman in the next story, may be such a nuisance that equity will interfere to
prevent damage from it. Warwick vs. Wah Lee et al., 160.
24. An injunction will be refused because no bill in equity has been filed.
Wilson vs. Childs, 275.
25. Equity will restrain a defendant from carrying_on_the_business of horse-
shoeing in Germantown or its vicinity," when the defendant has entered into án
agreement with plaintiff to that effect. Carroll vs. Hickes, 308.
26. A special injunction to restrain the erection of a proposed abattoir and
slaughtering-house will not be granted where the affidavits do not establish the
fact that they will be a nuisance. Sellers et al. vs. Railroad, 319.
27. Where A and B occupied separate floors of the same building, and A had
allowed B to believe before he took the lease that he would not object to a sign on
the balcony of the second floor-Held, that A could not restrain B from putting
up a sign there. Garrett vs. Mulligan, 339.
28. The unauthorized occupation of a street by railway tracts is a nuisance per
se which equity will restrain, upon information of the attorney-general, without a
preliminary trial at law. Attorney-General vs. Railway, 352.
29. In equity pleading the averments of the original bill and of the answer to a
cross-bill are to be taken together in determining the sufficiency of the answer to
the cross-bill. McIlvain vs. Market Co., 371.
30. The bill and cross-bill and their respective answers are to be treated as part
of one case. Id.
|