5. When a party having knowledge of the possession and use of the land by a
railroad company, afterwards takes a lease of the coal beneath, he cannot require
the company to remove the track, and his only remedy, if he has any, must be
under the statute for damages. Id.
REGISTER OF WILLS. See ORPHANS' Court.
Where in replevin for goods distrained for rent, the pleas are non demiserunt and
riens en arrere, and they are sought to be sustained by evidence of fraud in obtain-
ing a lease, a finding of facts by the arbitrator that the relation of landlord and
tenant existed between the plaintiff and defendant by virtue of a lease of a certain
date in writing; that there is a sum certain due the defendants for rent under the
lease; that no fraud is proved, with a statement of distress, replevin and pleadings
showing the issue, is sufficient under the section requiring a finding of facts in
the nature of a special verdict. Van Syckle vs. Stewart, 547.
ROADS AND STREETS. See BOARD OF SURVEYS.
1. 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.
2. A building erected upon a corner lot FRONTS UPON both streets or alleys on
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.
3. An injunction will not be granted to restrain the city from changing the grade
of a street, upon the complaint of a passenger railway company, who had pur-
chased the right of way over the street, formerly a turnpike, where ample remedy
is given the company for the recovery of whatever damages may result to them by
statutory proceedings. Railway vs. City, 37.
4. The act of 1846, as to injunctions against public buildings, and the Market
Street Railway vs. Building Commissioners, discussed. Id.
5. There can be but one jury of damages under the act of 13th March, 1873, re-
lating to Delaware avenue. Fitzpatrick vs. Railroad, 107.
6. The act of June 21, 1873, authorizes the opening of Girard avenue and
Twenty-second street through Girard College grounds, and is constitutional. In
re Girard College Grounds, 145.
7. The act of May 6, 1872, only gives the right to open streets through Monu-
ment Cemetery. It does not give the right to go beyond. Naglee vs. City et al.,
8. The councils of the city by the act of April 14, 1868, are authorized to widen
and straighten any street laid upon the public plans of the city. This does not
give them the right to extend the street or alter its course. In re Widening of
Thirty-fourth Street, 197.
9. An ordinance for the widening of Vine street contained a proviso that the
owners of the property should give security that no damages should be entered
against the city exceeding $1,000. As this proviso was not complied with, the re-
port was set aside. In re Oregon Street, 382.
10. As the jury appointed to report on the opening and straightening of Girard
avenue could not agree on a report, the court have the power to appoint another
jury. In the matter of Girard Avenue, 341.
11. A road jury can properly consider all the disadvantages as well as advan-
tages to the public in the opening of streets, and it was not improper for them, in
this case, to consider the nature, character and purposes of "The Girard College
for Orphans," whose grounds would be taken, and whether its usefulness would be
impaired, and the benefits it confers on the public restricted. In the matter of
Girard Avenue, 312.
12. All the houses in a certain row were, less than twenty years ago, built five
feet back from the building line, but there was no express agreement among the
property-owners to this effect. Held, that a special injunction would not be
granted to prevent defendant from erecting a bay window on the five feet recess.
Neill vs. Gallagher, 172.
13. The mere setting back of a building from the line of a street by the owner
for his own convenience or comfort, is not of itself a dedication of the land thrown
out, and he may reclaim it at will. Id.
ROADS AND STREETS-(Continued.)
14. A road jury in assessing damages for opening a street must award them as
damages for the opening of the street." In re opening of Fifteenth, Sixteenth,
and Norris Streets, 214.
The provisions of the 4th section of the 14th article of the constitution, which
declare that "the compensation of county officers shall be regulated by law," and
"that in counties containing over 150,000 inhabitants all county officers shall be
paid by salary," are prospective in their operation, dependent upon legislative
action, to carry them into effect, and do not repeal existing laws until the new
laws are passed. Comm. ex. rel. vs. Collis, 430.
1. While school directors elected prior to the beginning of a current school year
cannot exercise any control over the schools, nor any of the powers pertaining
to their office, until the full term of their predecessors has expired, yet, after that
has taken place, their official functions attach, and they are entitled to meet with
the continuing members of the board, and to participate both in the temporary
and permanent organization. Bouton vs. Royce, 559.
2. The first business of a school board, composed of continuing and newly elected
members, is to organize by choosing a president, secretary, and treasurer. This is
best accomplished, ordinarily, by effecting a temporary organization; whereupon
the returns of the election are read, or the certificates of the directors elect are
presented, and thus, all the members alike participate in the permanent organiza-
tion. If a permanent organization cannot be accomplished, however, because no
one of the members can obtain a majority of votes for president, it is such neglect
of duty as will justify the proper court, upon application made according to law, to
declare their seats vacant, and appoint others in their stead. Id.
3. The continuing members of a school board are not judges of "the legality
of any election of directors." The statute authorizes and requires the Court of
Quarter Sessions, whenever not less than six qualified citizens of a district contest
an election, "forthwith to examine into it, and to confirm or set it aside, as shall
seem just and proper; and if set aside to order a new election," etc. Id.
4. The law authorizing "less than a majority" of directors to fill vacancies in a
school board, only applies where the number has been thus reduced from the causes
mentioned in either the seventh or the eighth section of the act of May 8, 1854, P.
L. 618, Purd. 239, 240, pl. 22, 23, or from both combined. Id.
5. The provision in the school law authorizing the directors of adjoining dis-
tricts to establish joint schools, applies where the number of pupils in each is
not large enough to warrant the expense of establishing and maintaining separate
schools; but, by uniting the two, a number is reached which meets the contem-
plation of the statute. Comm, ex rel. vs. Williamson et al., 490.
6. While school directors are necessarily clothed with large discretion in the
management of the public schools, which will not be repressed on the part of the
courts by anything less thau a generous and liberal supervision, stil! it is a mis-
take to assume that this discretion is unlimited. Judicial authority may be in-
voked as successfully to restrain the illegal acts of school directors, as it may be
to restrain official wrong-doing from any other quarter, or by any other class of
men; it may be invoked likewise to compel school directors to discharge their
duties under the law. Id.
7. School directors have neither authority nor discretion to send pupils be-
tween the ages of six and twenty-one years, be they white or black, out of their
proper district for instruction, except when by reason "of great distance from,
or difficulty of access to, the proper school-house" of the district, such pupils
can be more "conveniently accommodated in the schools of an adjoining dis-
trict." Id.
8. Where the number of colored pupils in any district is less than twenty, there
is no provision in the law which excludes them from the schools where white
children are taught; and if the directors refuse to admit them thereto, manda-
mus will avail to correct the wrong. Id.
9. A board of school directors can appoint to fill a vacancy until the next an-
nual election. Comm. ex rel. vs. Thomas, 600.
SERVICE OF PROCESS. See DIVORCE, 12. CORPORATION, 11. PRACTICE, 11.
Return of "served by serving a copy of original summons on defendant," is not
sufficient. City vs. Cathcart, 103.
SHERIFF. See PRACTICE, 4, 22.
1. A mortgage was made on a large lot of ground, which lot was afterwards sub-
divided and improved, and sold by the sheriff on proceedings on the mortgage.
Held, that the proceeds of each lot should be applied to the payment of the mort-
gage in equal proportions, although some of the lots brought a larger price than
the others. Leech vs. Bonsall, 384.
2. A sale by the sheriff under proceedings in partition discharges the lien of a
mortgage. The act of March 21, 1867, construed. Wright vs. Vickers, 381.
Where a statute repeals absolutely a prior law, and substitutes other provisions
on the same subject, even though the latter seem designed to subserve but a tem-
porary purpose, the prior law does not revive when the repealing statute is spent,
unless the intention of the Legislature to that effect is expressed. Bouton vs.
Royce, 559.
STATUTE OF FRAUDS. See BILLS AND NOTES, 3.
A parol agreement to purchase real estate is of no effect. A part payment with-
out possession, and which was afterwards appropriated to another indebtedness,
will not take it out of the statute of frauds. Newkumet vs. Kraft et al., 127.
STATUTE OF LIMITATIONS. See CRIMINAL LAW, 1.
1. The statute of limitations never extinguishes a debt; it only forms a bar
to the remedy to recover it by action. Morris et al. vs. Hannick, 571.
2. The act of February 24, 1806, authorizing judgments to be entered by the
prothonotary on notes and other instruments, with confession of judgment at-
tached, gives an additional remedy for collection to which the statute of limita-
tions does not apply. Id.
3. Where a debt, even though it be "grounded upon any lending or contract,
without specialty," is acknowledged by a debtor under the form of a note, with
confession of judgment attached, it may be entered in judgment and collected,
notwithstanding more than six years have intervened between the maturity of the
note and the entry of judgment upon it. Id.
Until actual transfer, the title of the purchaser of stock is merely equitable, and
persons dealing with him, take the risk that the equitable title is such that he
can compel a transfer of the legal title. Wood et al. vs. Maitland et al., 84.
1. In a proceeding by bill in equity to restrain the collection of school taxes,
the court will not inquire into the validity of the appointment of the collector,
he having given bond with sureties approved as required by law. Coal and Iron
Co. vs. Curran et al., 543.
2. The act of May 8, 1854, did not establish a fixed rate of taxation for school
purposes. It merely provided a standard, by which the MAXIMUM rate could be
ascertained at the time the tax is levied; to wit, the amount of both State and
county taxes, authorized by law. Id.
3. The act of February 23, 1866, exempting real estate from the three mill tax
for State purposes, operated as a reduction of a like amount on that species of
property for school purposes. Id.
4. A levy of thirteen mills on real estate is three mills in excess of what the law
allows. The collection of such excess may be restrained by injunction. Id.
5. A farmer who sells the product of his own farm, and occasionally that of his
neighbor, cannot be rated as a dealer in goods, commodities, within the meaning
of the mercantile tax law. Barton et al, vs. Morris et al., 360.
6. A railroad company in embarrassed circumstances sold a large amount of stock
below par, and afterwards paid a dividend on its whole capital. There being no
proof that this was profits: Held, that the company was not liable to the tax on
profits for this amount. Comm. vs. Railroad Company, 465.
7. An act of assembly authorizing taxation for the payment of bounties pre-
viously paid is constitutional. Felty vs. Uhler et al., 514.
8. The power of the Legislature to tax for public good and for public purposes
extends even retrospectively to all matters not penal, not in violation of contracts,
and not forbidden by the constitution. Id.
9. Shares of national bank stock are personal property. Strong et al. vs.
O'Donnell, 575.
10. Those belonging to non-residents are separated by the acts of Congress from
the persons of their owners for purposes of taxation, and are to be taxed at the
place where the bank is located. Id.
11. The States may direct the manner and place of taxing the shares of resi-
dent owners, and the Legislature of Pennsylvania not having separated such
shares from the person of their owner, their situs, like that of other personal prop-
erty, is at the domicil of their owner, and they are to be taxed in the town or
city where he resides, not in that where the bank is located. Id.
12. To avoid multiplicity of suits, the court has jurisdiction to enjoin against
the collection of an illegal and unauthorized tax. Id.
Where the possession of the plaintiff, who was one of the tenants in common, is
disputed by the others, an issue should be framed and the facts found by the
jury. Harding vs. Devitt et al., 95.
1. The neglect of the proprietor of a theatre to mark a seat "taken," can give
a stranger no right to a seat which had already been purchased by a third party.
Comm. vs. Powell, 180.
2. 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.
Plaintiff's trade-mark was "The Rising Sun" stove-polish with vignette of the
Held, that defendants would not be restrained from using the words "Rising
Moon," with vignette of the moon. Morse vs. Worrell, 168.
1. Cutting timber on the land of another, without color of title, is destructive to
the freehold, and may be denominated destructive trespass. Echert et al. vs. Ferst
et al., 514.
2. Equity will enjoin against the commission of such acts, when the party is
insolvent, and where it is necessary to prevent a multiplicity of suits. Id.
TRESPASS ON THE CASE. See EASEMENT.
1. A trust for the separate use of a woman cannot be created, unless she is
covert, or in contemplation of marriage. Pickering et al. vs. Coates et al., 65.
2. Where a young woman makes a deed of trust and one year afterwards mar-
ries, held in this case to be in contemplation of marriage. Åsh vs. Bowen, 96.
3. A limitation by which the course of descent is broken, makes the trust an
active special trust, and should be kept alive to support the remainders. Id.
4. What facts are necessary to constitute a purchaser at a sheriff's sale a trustee
for another, who alleges that he refrained from bidding on account of an agree-
ment with him, discussed. Burkhardt vs. Schmidt, 118.
5. The trustees of the aggregate fund, being the legal holders of the notes, pay-
ment whereof was intended to be secured by the 381 trust, are entitled to the bal-
ance in hands of the accountant. In re 381 Trust, 297.
6. The claims of Morris & Nicholson's representative are settled in Halsey's
Appeal, adversely to the claimant, because Morris & Nicholson never paid Green-
leaf for the shares, and cannot acquire an equity upon presumption of payment
from lapse of time. If such payment could be shown to have been made by
Morris & Nicholson, it would be otherwise. Id.
7. Trustees guilty of a breach of trust, who have lost the trust assets, and who
have assigned property of their own to another as security, or in trust for the
benefit of the cestuis que trust, cannot have a decree for an account against such
third person without joining the cestuis que trust or restoring the trust assets.
Potter et al. vs. Hoppin et al., 396.
8. The assignee of such property, under such circumstances, becomes a trustee
de son tort, and is accountable directly to the cestuis que trust. Id.
1. In proceedings under the act of 1840 against a turnpike company must show:
That the complaint was made before the aldermen of the neighborhood. Simons
vs. Turnpike, 101.
2. They should be sworn to inquire whether the road, or any part of it, is in
good travelling order and repair, not whether it is in perfect order. Id.
3. The return of the constable should set forth the names of the citizens sum-
moned. Id.
4. An inquisition to compel a turnpike company to open its gates, because it is
not in such "good and perfect order," as required by the act of 1803, must be in
strict conformity with the requirements of the act. In re Turnpike Co., 59.
VENDOR AND VENDEE. See EQUITY, 11, 12.
1. A distributee of purchase-money cannot dispute the purchaser's title. Pot-
ter et al. vs. Hoppin et al., 396.
2. The purchaser of a property sold at auction, cannot recover the deposit
money when a good title is offered him. Schlessinger vs. Ellis et al., 109.
To permit, even after three trials, a verdict to stand without evidence, is to
plunder a citizen under the form of levy. Lodge vs. Railroad, 153.
1. Mechanics, miners, laborers, and others claiming under the act of April 9,
1872, must give notice in writing to the officer executing the process before the
actual sale of the property; in default of this notice, no lien. Construction of
said act and its requirements. Bank vs. Childs, 452.
2. The act of April 9, 1872, “for the better protection of the wages of me-
chanics, miners, laborers and others," does not give a lien for wages earned after
the particular property has been seized by the sheriff on an execution. Property
levied is in the custody of the law, and when sold the proceeds are preserved
against lien creditors subsequent to the levy. Schrader vs. Burr, 620.
1. An instrument in writing executed by a married woman as a will, in the
presence of but two persons, one of whom is a devisee, of an estate in remainder
under the will, cannot be established as a valid will under the act of 1848. Camp
et ux. vs. Stark, 528.
2. The proviso to that act which requires that the will of a married woman shall
be executed in the presence of two witnesses, is to be construed as a condition,
without compliance with which the will is invalid. Id.
3. It is not necessary to the validity of the will of a married woman that she
should in all cases make the formal declaration that it is her last will. Id.
4. An issue directed by the register or register's court to the Common Pleas can
only be for the trial of disputed facts. Whether an instrument upon its face is
a testamentary disposition is a question of law, which must be determined by the
register or register's court, or by an appeal to the Supreme Court. Id.
5. 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 the defendant. Twaddell vs.
Land Co., 63.
6. The general rule is, that in order to establish the validity of a will the
subscribing 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
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