31. A decree for an account cannot be had where defendants show a personal
liability for what is asked. Potter et al. vs. Hoppin et al., 396.
32. To enable a private person to maintain a bill in equity for the prevention or
remedy of a public nuisance, he must show that he will sustain a private injury,
separable from and in addition to the public inconvenience. Blanchard vs. Rey-
burn, 427.
33. Equity will not enjoin against merely fanciful inconveniences, but only
against such injuries or inconveniences as naturally interfere with the ordinary
comfort, physically, of human existence. Id.
34. An injunction will not lie to restrain the exercise of a public office. Quo
warranto is the remedy. Campbell vs. Tuggart et al., 443.
35. It is too late to amend a bill in equity, after bill, answer, replication, ref-
erence to master, and examination of witnesses. Dougherty vs. Murphy, 509.
36. In a bill in equity, filed under the act of assembly of 18th July, 1863 (relating
to mining companies), to recover from the officers and directors of the company,
the debts due by the latter, neither the company nor the secretary should be joined
as a defendant. Young vs. Oil Company, 525.
37. A bill brought under said act will not be dismissed for multifariousness be-
cause it embraces, as grounds for its support, two separate debts due to two sepa-
rate plaintiffs. Id.
38. The bill must state that the sheriff made demand on the executions issued
against the company, and when he made it. Id.
39. If two judgment creditors join as plaintiffs in the bill, it is not sufficient to
charge that the corporation did not exhibit sufficient estate to satisfy both writs of
execution against it. If there was enough property to satisfy one writ, the officer
should have sold it. Id.
Query? Whether a bill should be dismissed because it does not aver that no
portion of the judgment against the company (the foundation of the bill) has been
paid. Id.
ESTOPPEL. See GROUND Rent.
1. Evidence that defendant was enjoined from using demised premises by an ex
parte injunction issued at the instance of plaintiff, is admissible under plea of
"eviction" in an action for rent. Pfund vs. Herlinger, 13.
2. It is no objection to the admission of plaintiff's book of original entries, be-
cause the charges contained therein had been posted in the ledger, which was not
produced. Defendant could have compelled production of the ledger by notice.
Stokes vs. Fenner, 14.
3. Evidence of the usage of the trade may be admitted to explain an ambiguous
contract, not to contradict it. Id.
4. An interested witness and party cannot prove a writing which was made prior
to the death of the other party. Truitt's Estate, 16.
5. The inventory is prima facie evidence of the amount of the assignee's liabil-
ity. Id.
6. Wife of defendant in an attachment against stock standing in her husband's
name cannot be allowed to testify that the stock belongs to her. Boyle vs.
Haughey, 98.
7. The general rule is, that in order to establish the validity of a will the sub-
scribing witnesses must be called, if living and within the jurisdiction of the court,
but if, after strict, diligent and honest inquiry, satisfactory to the court under the
circumstances of the case, the subscribing witnesses cannot be found, other evi
dence will be admitted to prove the signature of the testatrix. Givin vs. Green, 99.
8. A father claiming under the act of April 15, 1851, as amended by act of April
26, 1845, for damages for the death of his son, claims in privity with the son.
Stein vs. Railway, 440.
9. The admissions of one person are evidence against another in privity with
him. Id.
10. Verbal declarations are properly admissible as part of the res geste when
they accompany some act, the nature, object, or motive of which is the subject of
inquiry. Id.
11. In an action by a father against a railway company for damages for the death
of his son, the declaration of the son immediately after the happening of the acci-
dent, that he had jumped from the car, was admissible: 1st. As an admission
against interest. 2d. As a part of the res gestœ. Id.
12. The defendant's admission as to a former marriage may be given in evi-
dence against him to prove such fact. Comm. vs. Henning, 209.
13. Under the act of 11th of March, 1846, material averments contained in the
municipal claim filed are prima facie evidence of the things averred. City vs.
Reilly, 10 S. 467, distinguished from this case. City vs. Esau, 425.
14. In actions for penalties for violating ordinances, the essential parts of the
evidence should be set forth. City vs. Harbison. Same vs. Boist, 306.
15. The general rule in Pennsylvania is, that all papers given in evidence in
the trial of the cause, except depositions, are to be sent out with the jury. Shomo
vs. Zeigler, 611.
16. A certified record of bankruptcy offered in evidence during the trial, through
which the plaintiff claims the land, may be sent out with the jury, even though
there are depositions attached to the proceedings relative to the bankruptcy, but
immaterial to the controversy. Such depositions stand on a different footing from
ordinary depositions, for the record cannot be cut up and mutilated. Id.
17. It is the duty of counsel to object to papers before they are admitted to the
jury-room. Id.
EXAMINER. See DIVORCE, 9.
EXECUTION. See EQUITY. PRACTICE.
EXECUTORS AND ADMINISTRATORS. See EQUITY, 15. Affidavit of De-
FENCE, 2. WILL, 7. CONVERSION.
1. An administratrix who assumes the charge of real estate will be liable to
account for the highest rent that can be obtained, but she may show that she has
used all possible diligence, and then she will not be charged for rent not received.
Burns et al. vs. Cox, 8.
2. Proceeds of realty-sold under a power-and found within this jurisdiction,
will be ordered into the hands of the administrator d. b. n. c. t. a. of him whose
realty was sold, rather than to the administrator c. t. a. of his widow, who had
hitherto held as executrix, and enjoyed as life-tenant such proceeds, even though
she was a creditor of her said husband's estate by an amount nearly equalling the
fund in controversy: Provided, those in remainder desire distribution through
such first administration. Tucker vs. Horner et al., 122.
3. One of several executors has the right to sell stock of his testator, and if he
does actually agree to sell, and the price is paid, title passes-but one who deals
with another holding a certificate with a power to sell and transfer, signed by the
executor, does not obtain a valid security for a loan by the delivery of such certi-
ficate and power, unless as matter of fact, there had been a sale and payment of
the price, so as to divest the title of the decedent. Wood et al. vs. Maitland
et al., 84.
4. Where the defendant dealt directly with the executor, the ruling of the Su-
preme Court in Maitland's and Hand's Appeal does not apply. Wood et al. vs.
Ellis, 138.
A defendant is entitled to the benefit of the exemption law in a proceeding com-
menced under the act of March 17, 1869, if the original demand be founded on
contract. Washburn vs. Baldwin, 472.
1. 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 permanent
improvement of the park. Comm. vs. Park et al., 445.
2. The park commission has power to use the name of the city of Philadelphia
in any proceedings at law or in equity which may be necessary to carry into effect
the objects referred to in the act creating the commission. City vs. Railway, 165.
1. At common law the owner of cattle was liable for injury done by them, as
in the eye of the law every man's land was set apart by enclosures from that of
his neighbors. Race vs. Snyder, 533.
2. This was universally held to be the law in the northern counties until the
case of Gregg vs. Gregg, 5 P. F. Smith, 227. That case construed the acts of assem-
bly to change the common law. Id.
3. If the owner of improved land has no fence enclosing his crops, he cannot
recover for injury done to them by roving cattle. Id.
4. The construction given to the statutes relating to fences. (Opinion of Judge
Addison approved and in part adopted.) Id.
5. A fence should be such as farmers of practical knowledge and experience
would consider as sufficient to protect crops from injury by orderly cattle. With
such sufficient fence an action may be sustained, although not made of logs, or
rails, or posts and boards, and not "four and one-half feet high and well-staked
and ridered." Id.
The provision contained in the 3d section of the act of 28th May, 1872, relating
to the dissolution and surrender of charters of fire companies in the city of Phila-
delphia, which confines the distribution of the effects of such companies to active
members and those who have been placed on the roll of honorary members as a
reward for active service, is constitutional, and contributing members and life-
members are not entitled to participate in such distribution. Comm, ex rel. vs.
Fire Company, 393.
The court will, in their discretion, on the application of the garnishee in a
foreign attachment, direct the plaintiff to issue a scire facias against the garnishee.
Finch et al. vs. Bullock, 318.
1. In an action for ground rent the principle that a tenant is estopped from de-
nying his landlord's title has no application. Hulseman vs. Griffiths, 350.
2. To such claim a constructive eviction under a paramount title is an answer,
although no actual ejectment was brought. Id.
The contracts of an infant at common law cannot be enforced except for
necessaries. When the infant represents himself of age, and thus obtains the
credit, he becomes liable in an action on the case for damages. Hughes vs. Gallans,
618.
1. An insolvent debtor will be discharged, although it is opposed because he was
arrested on process on a judgment in an action for actual force, if the court by
going behind the judgment ascertain that the cause of action was not founded on
actual force. In re Widmier, 81.
2. If an insolvent petitioner omits to return a debt due to him from an honest
conviction of its worthlessness, it will not defeat the petition. Id.
3. The State court has not authority to discharge an insolvent debtor arrested
upon process issued out of the United States Circuit Court upon a judgment founded
upon a fraudulent representation alleged to have been made by the petitioner. In
re Thomas, 82.
1. Every insurance company of this Commonwealth is required to file with the
insurance commissioner a certified copy of its charter, together with a certificate,
stating the time of its organization, the location of its principal place of business,
and the names and residences of its officers, as directed by the 8th section of the
act of 4th April, 1873. Comm. ex rel. Attorney-General vs. Mutual Beneficial Asso-
ciation, 554.
2. Every insurance company is compelled to transmit to the commissioner a
statement of its condition and business, as directed by the 12th section of that act,
except those specially exempted by section 16 of same act, who must at all times
answer such interrogatories as the commissioner may require to ascertain their
character and condition. Id.
3. No company incorporated within this Commonwealth since the adoption in
1857 of the fourth amendment to the constitution, can claim immunity from filing
such certificate and making such statement, on the ground that said act violates
the Constitution of the United States by impairing the obligation of contracts,
although there may have been no provision in the charter reserving to the Legis-
lature the power to alter, revoke or annul it." Id.
JURISDICTION. INSOLVENT, 3. DIVORCE, 12. ADMIRALTY, 7. TREATY.
1. A Maryland justice of the peace has not jurisdiction in attachment against a
resident of Pennsylvania, for a debt contracted in Pennsylvania, the debtor not
being personally present in Maryland, nor having property there. Neville vs.
Morgan, 522.
Query? Whether if the debtor had been personally present in Maryland, and
served with a summons, a Maryland judicial tribunal might not have properly
refused to entertain jurisdiction of a controversy in Pennsylvania between parties
domiciled here, who were only temporarily in Maryland, and had no property
Query? Whether, if such tribunal entertained jurisdiction because of the mere
casual and temporary presence of the parties, it would not, ex comitate, respect and
enforce the Pennsylvania statute exempting wages of labor from attachment in
the hands of the employer?
2. Duty of United States commissioner in regard to application for discharge of
insolvent debtor under State insolvent law, considered. Russell vs. Thomas, 239.
JURY. See ALDERMEN AND JUSTICES. CRIMINAL LAW, 6.
1. A judge may, where the evidence is uncontradicted, tell the jury that it is
their duty to convict. Comm. vs. Magee, 201.
2. The act of April 22, 1874, for the submission of cases to the court without a
jury, discussed. Colket vs. Ellis, 375.
3. A verdict of a jury will not be set aside for the misconduct of a juror in
conversing about the cause on trial with a witness before or during the trial, when
no improper influence or bias is shown, unless such misconduct was caused by a
party to the suit, or his agent, or by his representations, and proof of the bias
must be clear and manifest. Shomo vs. Zeigler, 611.
LANDLORD AND TENANT. See BANKRUPTCY.
1. Evidence that defendant was enjoined from using demised premises by an ex
parte injunction issued at the instance of plaintiff is admissible under plea of evic-
tion in an action for rent. Pfund vs. Herlinger, 13.
2. The facts of this case held to constitute a lease and not a mere personal license,
which would end upon death of plaintiff's decedent. Kunkle vs. Rifle Club, 52.
3. A boiler held to be "an alteration or improvement" which by the terms of
the lease were not to be removed by the tenant. Agnew vs. Whitney, 77.
4. A parole license contrary to the written terms of the lease should be clearly
proved. Id.
5. A certiorari is not a supersedeas to a writ of possession issued upon proceed-
ings under the act of March 21, 1772. Insurance Co. vs. DeCoursey, 88.
6. When a deduction is made from the landlord's damages, under appropriation
by the sovereign for the time the lease has to run, and awarded to the lessee, it in
equity belongs to the lessor, as he is deprived of recourse to the land for his rent.
Fitzpatrick vs. Railroad, 141.
7. Equity will not restrain a proceeding by landlord against tenant for posses-
sion upon grounds such as a change of title, which may be asserted by the tenant
in the proceeding itself. Vanarsdalen vs. Whitaker, 153.
8. 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 fund as against the general creditors. Wilson
vs. Childs, 275.
9. In an action for ground rent the principle that a tenant is estopped from de-
nying his landlord's title has no application. Hulseman vs. Griffiths, 350.
10. A surrender and acceptance of premises stops rent within the meaning of a
recognizance on certiorari. Wistar vs. Campbell, 359.
11. By virtue of the provisions of the act of assembly of 20th February, 1867,
the alienee of the landlord may institute proceedings under the landlord and ten-
ant's act of December 14, 1863, to recover possession of the demised premises made
LANDLORD AND TENANT-(Continued.)
by the landlord (the original lessor). To do this, attornment in this State is not
necessary. By the sale of the demised premises to the grantee, and assignment
of the lease to him, the law infers the consent of the tenant, and the land with
the lease, and all the rights of the landlord, pass to the grantee by operation of
law, and the grantee is within the provisions of the act of 6th of March, 1872, as
to all the rights and privileges of the original lessor under the lease.' Tilford
vs. Fleming, 14 P. F. S. 300, followed. Mortimer vs. O'Reagan, 500.
LEASE. See LANDLORD AND TENANT. EQUITY, 27.
1. A person who is not licensed to act as a broker may, nevertheless, maintain
an action for a commission earned in the sale of arms. Justice vs. Rowand, 623.
2. The act of assembly imposes a penalty of five hundred dollars for acting as
a broker without a license, but this fact will not prevent a party from recovering
in a particular case, wherein he has acted as an agent for another, on a contract
for a commission for services rendered, in effecting the sale of a lot of arms. Id.
1. Where the facts have been stated honestly, fairly, fully and without reserva-
tion to an alderman, and he advises defendant to proceed and make the arrest,
the defendant cannot afterwards be successfully sued for malicious prosecution.
Thomas vs. Painter, 409.
2. Rosenstein vs. Feigel, 6 Philada. Rep. 532, followed and approved. Id.
1. A mandamus will not lie to compel the performance of an act by a person
clothed with a discretion to determine the necessity of such act, and the time and
circumstances which call for its performance. Comm. ex rel. vs. Park, 445.
2. A private claim to the right of interment in a cemetery lot will be enforced by
mandanus. Comm. ex rel. vs. Cemetery Association, 385.
MARRIAGE. See DIVORCE, 7.
1. A marriage, although it may be void by the law of England, is not absolutely
void here. City vs. Williamson, 176.
2. Defendant when he was married representing himself to be a Catholic, will
not be allowed to contradict it now and ask to have the marriage declared
void. Id.
MARRIED WOMEN. See WILL, 1, 2, 3, 4, 5. EQUITY, 9. Divorce, 11.
1. The title of a married woman is good where it appears to have been bought
and paid for out of her own means and credit. Schlessinger vs. Ellis, 109.
2. Property in the possession of the wife will be presumed to be the property of
her husband. The claimant who had falsely claimed to be the wife of defendant
held to this rule. City vs. Williamson, 176.
3. A wife's choses in action do not vest in the husband at common law, unless he
reduces them to possession. McVaugh vs. Mc Vaugh, 457.
4. A husband confessed judgment to his wife and she issued a fi. fa. against his
personal estate, which was lodged in the sheriff's hands a few moments before a
creditor's fi. fa. Held, that she could not issue such execution. In re Marvin,
5. Wife of defendant in an attachment against stock standing in her husband's
name cannot be allowed to testify that the stock belongs to her. Boyle vs.
Haughey, 98.
6. 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.
1. A mechanics' lien cannot be stricken off by petition based on questions of fact
not arising upon the record. Frick & Snyder vs. Gladdings, 79.
2. Where materials are furnished, not under a contract for the whole, for two
buildings which are the proper subject of an unapportioned lien, the claims for
the materials for the building first erected must be filed within six months from
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