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ASSUMPSIT. Where two have an option to buy | BAILMENT-Continued.

204.

real estate and agree to sell the same to a third person miller is at liberty to return to the customer flour
and the contract is carried out by a conveyance from made from other grain it is a sale.
Bretz v. Diehl,
the original holder to one of the two having the option
who conveys to the third person and receives the con-
sideration, the other of the two may recover his share
of the profits in assumpsit for money had and received.
Jackson v. Emmens, 199.

Costs are recoverable by plaintiff although he re-
cover less than $100, when damages are unliquidated.
See COSTS. (C. P.) Lukens v. Ferguson, 271.

ATTACHMENT SUR JUDGMENT. A gar-
nishee cannot by a voluntary plea deprive the plaintiff
of the right to payment out of funds of the defendant
coming into the hands of the garnishee after service
of the attachment and before it is determined. (C.
P.) Excelsior Brick Co. v. Gibson, 32.

The subject of a spendthrift trust created by the
spenthrift is attachable. (C. P.) Lewis v. Miller, 94.
Attachment will lie against funds of an unincorpo-
rated beneficial society in the hands of its treasurer.
(C. P.) McDowell v. Smith, 558.

Where an order to sell stock has been made by the
Orphans' Court for purposes of distribution, but the
order has not been complied with, and on the second
account of the executors an attachment appears
against the share of a distributee, the share of the said
distributee is to be determined by taking the value of
the stock distributed to the other legatees at its
market value at the time of formal confirmation of
the account, and not at its inventoried value. (O. C.)
Park's Estate, 227.

ATTACHMENT UNDER ACT OF 1869.
When a debtor submits a statement of his liabilities to
his creditors in which there is no mention of any in-
debtedness to his two sons, and afterwards confesses a
judgment to the sons for alleged unpaid wages, and
execution is issued on the judgment, there is no such
fraud shown as will sustain an attachment. (C. P.)
Lennig v. Senior, 379.

ATTORNEY AND CLIENT. The power of a
Court to order an attorney to pay over money to another
person exists only where that other person is his client.
Where the relation of attorney and client does not ex-
ist there is no such power. In re Kennedy, 481.

Where an attorney has collected money and retains
as his fee an amount which is objected to by his client,
the Court if of opinion that it is retained with a
fraudulent intent may compel immediate justice, upon
a rule taken, but if the answer shows good faith, the
olient will be put to a jury trial to recover the amount
in excess of a proper fee. Id. See COUNSEL.

ATTORNEY-AT-LAW. The authority of at-
torney to confess judgment need not be in writing.
Limbert's Appeal, 20; Swartz's Appeal, 150.
Commissions of attorney stipulated in judgment
note, when not recoverable from defendant. See Coм-
MISSIONS. Johnson ". Marsh, 570.

AUDITOR. The findings by an Auditor, affirmed
by the Court below, that facts sufficient to sustain a
recovery exist, will not be set aside except for flagrant
error, although the case contain some facts which cast
a doubt upon the claimant's right. Ranninger's
Appeal, 92.

AWARD. See ARBITRATION.

BAILMENT. Where a customer of a mill sends
grain to be ground which with his knowledge is
put in a common mass with grain of the miller and
of other customers, if the contract is that the customer
is to receive his proper proportion of the product of
the commingled mass, it is a bailment; but if the

When bailor seeks to recover bonds from a third per-
son to whom they have been transferred by the bailee
in fraud of the bailor, he must identify the bonds.
Klein's Appeal, 479.

BANKS AND BANKING. A bank is estopped
to deny that money it has received from and credited
to a depositor, belongs to him. Citizens' Nat. Bank
v. Alexander, 473.

B., county treasurer, deposited county funds in a
bank and overdrew his account; he subsequently ap-
pointed C. his deputy. C. opened a new account as
C. deputy treasurer;" held, the bank could not charge
the new account with B's. deficit. Id.

A bank which receives for collection a draft, payable
at another bank in the same city and about three
miles distant, and does not present the draft on the
day it is received, but sends it by mail the next day
so that it does not reach the second bank until the
day after, upon which day said bank fails, is guilty of
negligence, and if there was money of the drawer to
meet the draft, on the first and second days, the col-
lecting bank is liable to the holder for the amount of
the draft. Harvey v. Girard Nat. Bank, 523.

Where a bank, acting as collecting agent, is fixed with
liability to the holder for the amount of a draft which
has been lost through negligence, and the drawee, who
is under no legal liability to pay, pays the draft to pre-
serve his credit, he cannot recover the amount so paid
from the bank. Id.

Cashier of national bank not within Act of March
31, 1860, § 64. Appeal of Allen, 136.

BENEFICIAL SOCIETIES. Money in the
hands of the treasurer of an unincorporated beneficial
society is subject to attachment upon a judgment
against the company. (C. P.) McDowell v. Smith, 558.

BILL OF LADING. Delivery by common carrier
without production of bill of lading. See COMMON
CARRIER. Pa. R. R. Co. v. Stern, 50.

Provision in bill exempting carrier from responsi-
bility for loss. See COMMON CARRIER. Pa. R. R. Co.
v. Riordan, 283.

BILL OF PARTICULARS. See PRACTICE.
BILL OF RIGHTS. Violation of, in removal
of poor persons. See POOR LAWS. Overseers v. Over-
seers, 269.

A judge of the Quarter Sessions may hold a person
to bail for perjury committed before him, and direct
the District Attorney to present a bill to the grand
jury, and such action does not violate the Bill of
Rights. March v. Com'th, 566.

BOROUGH. A borough cannot be organized
where it is doubtful whether a majority of the free-
holders living within the proposed limits have signed
the petition for incorporation, and the Court cannot,
by reducing the territory so as to include only that
portion of territory within which a majority of the
freeholders have signed, incorporate a borough with
the reduced limits, for the court has never had any
jurisdiction. In re Incorporation of the Borough of
Taylorport, 533.

BOUNDARIES. Boundaries cannot be settled
in a proceeding under the Fence Viewers Act of March
11, 1842. Trego v. Peirce, 568.

BRIDGE VIEWERS. The report of a grand
jury acting as bridge viewers under Act of April 16,
1870, will be set aside, after confirmation, where it ap-
pears that one of the jury was a petitioner for the
bridge. In re Nescopeck Bridge, 426.

CAPIAS AD SATISFACIENDUM.
PRACTICE. Keim v. Saunders, 372.

See | COMMON CARRIER-Continued.

CASES FOLLOWED, OVERRULED, RE-
VERSED, OR DISTINGUISHED.
Balsbaugh v. Frazer, 19 Pa. St. 95, followed. 481.
Bank v. Mason, 95 Id. 113, followed. 473.
Borough of Easton v. Rinek, 19 WEEKLY NOTES,
561, followed. 56.

Camden and Atlantic R. R. Co. v. Pennypacker, 21
Id. 118, distinguished. 124.
Canonsburg Iron Co. v. Union Nat. Bank, 17 Pitts.
L. J. 93, distinguished. 12.
Commonwealth v. Ketner, 8 WEEKLY NOTES, 133,
followed. 136.

Hillbish's Appeal, 89 Pa. St. 494, distinguished.
288.

Hoff's Appeal, 84 Pa. St. 42, distinguished. 161.
In re Pearl Street, 1 Amerman, 565, distinguished.
56.

Jack's Appeal, 94 Pa. St. 367, distinguished.
508.

Ketchum v. Singerly, 12 Phila. 189, questioned.
444.

Lake Shore R. R. Co. v. Rosenzweig, 3 Amerman,
535, distinguished. 77.

Lewer v. Commonwealth, 15 S. & R. 93, distin-
guished. 198.

Lyon v. Huntingdon Bank, 14 Id. 283, distin-
guished. 265.

McConnell's Appeal, 1 Out. 31, distinguished. 93.
Moore v. Small, 19 Pa. St. 468, explained. 374.
Morgan's Appeal, 110 Id. 271, distinguished. 237.
Newville Road Case, 8 Watts, 178, commented
upon. 442.

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Where goods which have been consigned by the
consignor to himself, although intended for another
person who is expected to protect a draft drawn upon
him for the price of the goods, of which fact and that
the draft was attached to bill of lading the carrier has
notice, and the carrier nevertheless delivers the goods
to such person without the production of the bill of
lading upon the faith of his production of a bill for
the goods and a letter informing him of their ship-
ment, the carrier is liable for loss resulting to the con-
signor from the improper delivery. Pa. R. R. Co. v.
Stern, 50.

Presumption of negligence arises from injuries to
passenger. See NEGLIGENCE. Spear v. P. W. and B.'
R. R. Co., 87.
COMMON COUNTS. See ASSUMPSIT. Jackson
v. Emmens, 199.

COMMON PLEAS. An action to recover for
breach of a contract of sale of realty must be brought
in the Common Pleas. (C. P.) O'Neill v. McVickar,
496.

CONDITION. A gift of an estate "upon" the
grantee complying with and fulfilling certain cove-
nants, is a good creation of an estate upon condition.

Oil City and Petroleum Bridge Co. v. Jackson, Little v. Wilcox, 215.
114 Pa. St. 321, followed. 247.

Penna. R. R. Co. v. Lippincott. 116 Pa. St. 472,
followed. 300.

Pittsburgh & Lake Erie R. R. v. Robinson, 95 Pa.
426, distinguished. 253.

Searle v. L. and B. R. R. 9 Casey, 57, followed.
253.

Stephens v. Shriver, 25 Pa. St. 78, followed. 568.
Wilen's Appeal, 9 Out. 121, followed. 90.
CHECK. Effect of check of third person as pay-
ment. Briggs v. Holmes, 10.

Check of third person will act as payment when
through the want of diligence in presentation on the
part of the recipient, the money called for by it is lost
without any fault on the part of the debtor, who
thereby sustains loss. Kilpatrick v. Home Building
and Loan Association, 117.

COMMISSION MERCHANT. See FACTOR.
COMMISSIONS. Real estate broker, when en-
titled to. See REAL ESTATE BROKER. Peirce v. Truitt,
569.

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Attorney's commissions stipulated for in a judg-
ment note are not payable by defendant when it does
not appear that demand of payment was made before
the entering of judgment. Johnson v. Marsh, 570.
COMMITMENT. When too late to object to in-
formal commitment. See CRIMINAL PRACTICE. March
v. Com'th, 566.

COMMITTING MAGISTRATE. Judge of
Quarter Sessions as. See JUDGE. March v. Com'th,
566.

COMMON CARRIER. A common carrier may
by special contract exempt itself from liability for loss,
unless the loss arise from its own negligence; where
such a contract is made there can be no recovery
against the carrier in the absence of positive evidence
of negligence Penna. R. R. Co. v. Riordan, 283.

CONFESSION OF JUDGMENT. See JUDG-

MENT.

CONFLICT OF LAWS. Where a sale of goods
has been made, which if it had taken place in Penn-
sylvania would have been invalid for lack of change
of possession, but was valid in the State where made,
a subsequent removal of the goods to this State will
not invalidate the title of the vendee. (C. P.) Gutt-
man v. Cole, 96.

See BAILMENT.

CONFUSION OF GOODS.
Bretz v. Diehl, 204.
CONSEQUENTIAL INJURY. Definition of.
Pa. R. R. Co. v. Marchant, 300.

See CONSTITU-

When right to recover for arises.
TIONAL LAW. O'Brien v. R. R. Co., 141.
CONSTITUTION OF PENNSYLVANIA.
Art. II. § 5. 349.

III. § 3. 64, 162.

§ 6.

64, 121.

§ 7.

155, 162.

§ 21.

526, 527.

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§ 8. 112, 141, 300, 462.
XVII. § 9. 309.
CONSTITUTION OF UNITED STATES.
Art. I. § 10. 210.

CONSTITUTIONAL LAW. Under Art. XVI.,
§ 8, of Constitution of Pennsylvania, one whose prop-
erty is threatened with injury by a municipal improve-
ment is not entitled to restrain the work by injunction
until compensation is made or secured to him. The
power of taxation is a sufficient security for his rights.
Appeal of Delaware County, 112.

Under the same section it is not proper to appoint a
jury to assess damages in advance. Id.

Under Art. XVI., § 8, the right to recover for conse-

CONSTITUTIONAL LAW-Continued.
quential injury arises upon the actual undertaking of
the work from which the injury results, and not upon
the completion of said work. O'Brien v. Penna. Sch.
Val. R. R. Co., 141.

The injury to land for which Art. XVI., § 8, renders
a corporation or individual invested with the right of
eminent domain liable, must be one which results from
the construction or enlargement of works, and of such
character that the damages arising therefrom may be
estimated and secured in advance. Penna. R. R. Co.
v. Marchant, 300, 337.

Under Art. XVI. § 8, an ordinance permitting the
entry and establishment upon premises of drains for
public purposes, without compensation to the owners
of the land entered upon, is void. Borough of Stras-
burg v. Bachman, 462

CONSTITUTIONAL LAW-Continued.
provisions of certain Acts and refers to them by their
titles only. (C. P.) Gardner v. Gibson, 121. (But
see (C. P.) Roth v. Hobson, 64.)

The 2d section of said Act can stand without assist-
ance from the first and is constitutional. (C. P.)
Gardner v. Gibson, 121. And see, as apparently sus-
taining the whole Act, (C. P.) Roth v Hobson, 64.
Art. VIII. § 3 of the Act of June 1, 1885, providing
a new method for the collection of judgments against
cities of the first class, is unconstitutional. (C. P.)
Betz v. City of Philadelphia, 155.

A special verdict may be found by the jury and
judgment entered thereon by the Court in a criminal
Commonwealth v. Eichelberger, 195.

case.

The 4th constitutional amendment of 1857, provid-
ing that the Legislature shall have power to alter, re-
It is within the power of a State to tax property invoke or annul any charter when, in its opinion, it may
the hands of resident trustees where the cestui que be injurious to the citizens of the Commonwealth, in
trustent are non-residents. (U. S. C. C.) Price v. such manner, however, that no injustice shall be done
Hunter, 306.
to the corporators, authorizes a repeal of a charter for
cause only, which cause should in some way appear;
and even when cause appears no injustice must be
done the corporators. Williamsport Pass. Railway
Co.'s Appeal, 309.

The Act of April 4, 1873, exempting from certain
taxation insurance companies, is not, when accepted
by a foreign insurance company, such a contract as is
within the protection of Art. I. § 10, of the Constitu-
tion of the United States. Etna Fire Ins. Co. v. City
of Reading, 209.

The Legislature may prescribe the conditions upon
which a foreign corporation may transact business
within the State. Id.

The 4th section of the Act of June 30, 1885, which
provides that the treasurer of each private corporation
shall assess the tax imposed upon the scrip, bonds or
certificates of indebtedness of such company held by
residents of this Commonwealth at its nominal value, is
unconstitutional, being in violation of the requirement
of uniformity of taxation by Art. IX. § 1, of the Con-
stitution. (C. P.) Commonwealth v. Delaware Di-
vision Canal Co., 537.

The 2d section of the Act of April 12, 1867, which
assumes to repeal within certain limits the Act of
April 20, 1858, permitting manufacturers of natural
wines to sell by the bottle or gallon without a license,
is unconstitutional, the title of the Act, viz, "An Act
to prohibit the issuing of licenses within two miles of
the Normal School at Mansfield," not referring to such
a repeal. Hatfield v. Commonwealth, 455.

The Act of May 13, 1887 (Liquor License Law), is
not in conflict with Art. III. §§ 3, 7, or Art. IX. § 1, of
the Constitution. Commonwealth ex rel. Stein v. Mc-
Candless, 162.

The Act of May 11, 1881, requiring insurance com-
panies to attach a copy of the application to the policy
which refers to said application and providing that in
case it is not done the application shall not be received
in evidence between the parties to the contract of in-
surance or be considered a part of the contract, is con-
stitutional. New Era Life Ass'n v. Musser, 445.

Where the exclusive right to maintain a ferry has
been granted prior to the adoption of the present Consti-
tution, a maintenance of the ferry to such an extent as
to afford sufficient accommodation to the public at the
time, will be a sufficient commencement of business to
prevent a repeal of the right under Art. XVI. § 1, of
the Constitution. Appeal of Douglass, 13.

A corporation whose treasurer is required, by a cer-
tain Act of Assembly, to assess and collect a tax upon
its indebtedness, has a right to contest by action the
constitutionality of the Act. (C. P.) Commonwealth
v. Delaware Division Canal Co., 537.

The 1st section of the Act of June 17, 1887 (Mechan-
ics' Liens), is unconstitutional in that it extends the

CONTRACT. A. and B. formed a corporation in
which A., in return for $7000, received 100 shares and
B.'s guarantee that the same should be secured and
10 per cent. interest thereon paid him; by the same
contract it was agreed that A. was to be superintend-
ent of the company for five years at a certain salary.
Subsequently, by a contract, B. was released from his
guarantee and agreed to transfer 70 shares of the
company's stock to A. as trustee, with an option to
purchase the same, A. to pay therefor out of the divi-
dends thereon, in instalments equal to the excess of
the dividends over six per cent., when so paid for the
shares to become A.'s, and until so paid for the divi-
dends under six per cent. to belong to B. The stock
was not listed on the Exchange, and had no market
value; held, the provision that A. was to be superin-
tendent was for his benefit, and not an inducement to
B. to enter into the second contract, and that A. was en-
titled to specific performance of the second contract.
Appeal of Goodwin Gas Stove and Meter Co., 1.

There is no legal inference from a contract which
calls for the delivery of good sound lumber at a fixed
price, on the cars, to be shipped when directed, that
the lumber is to be inspected at the point of shipment.
Holt v. Pie, 475.

A. agreed with B. to sell him the charter and stock
of a certain canal company, to pay off the bonds and
debts thereof, and to pay for the right of way of a rail-
road, authorized to be built "along and upon the tow-
ing path or berme bank of the said canal," B. to pay
a certain amount in cash and $250,000 of the stock of
the railroad company at par when organized. B. as-
signed his contract to the L. V. R. R. Co. A. delivered
possession of the canal, all the bonds but two, and all
the stock but 215 shares. The L. V. R. R. never trans-
ferred the stock to A., but he agreed that it should be
held as collateral for the performance of his contract;
in constructing the road some additional land was
taken near the canal and some divergences were made
from the line of the canal in order to secure a shorter
and better line of road. On a bill for an account
filed by the assignees of A.'s interest; held, (1) that the
covenants in the contract were interdependent, and A.
was not entitled to his stock until he fully performed
his contract, and that his assignees were not entitled to
cash to the extent of $250,000 with interest, but only to
redeem the stock in kind or to have it sold and the bal-

CONTRACT-Continued.

ance, after deducting the amount due the L. V. R. R.
Co., the 215 shares outstanding to be taken at their mar-
ket value. (2) That where narrow strips of land more
than the towpath afforded were necessarily taken for
the construction of the railroad, A was chargeable with
their cost, but not where there was a material diver-
gence. Appeal of Harris, 189.

In a contract for work at a certain rate per day of a
given number of hours, time spent in going to and re-
turning from work is not to be included as part of the
day's work. Wilson v. Lyle, 75.

In an action for a breach of contract of hiring, the
breach being the discharge by the hirer of the hired
person before the expiration of the agreed period, the
plaintiff may recover his entire damages, and is not
confined to the amount of wages accrued between dis-
charge and action brought. (C. P.) Smiley v. Brown-
field, 528.

Where to a request to make a contract, or to renew
one already made, but the time of whose continuance
is expiring, no answer is made, a contract will not be
established by inference. Royal Insurance Co. v.
Beatty, 59.

Where a heavy article is by the terms of a contract
to be delivered at a particular place, the debtor is not
required to make a tender unless the creditor go after
it. Wisecarver v. Adamson, 151.

Contract of decedent for sale of realty, probate of.
(C. P.) Estate of Grauch, 508.

Contract requiring work to receive approval of of-
ficial. See AFFIDAVIT OF DEFENCE LAW. City of Erie
v. Butler, 459.

Contract or guaranty held not part of contract of
partnership, although written in partnership articles.
See PARTNERSHIP. McIntire's Appeal, 564.

Limitation of liability of common carrier by contract.
See COMMON CARRIER. Penna. R. R. Co. v. Riordan, 283
Parties to Actions on Contract. One for whose
benefit a promise is made may maintain an action up-
on it, although it has not been made directly to him,
and he is a stranger to the consideration. Hostetter v.
Hollinger, 73.

Where a debt exists a promise by a third person
made to the debtor to pay such debt is for the benefit
of the original debtor, and can be enforced by him
alone. Adams v. Kuehn, 125.

Under what circumstances one can sue upon a con-
tract to which he is not a party. Id.

CORPORATIONS. What notice required of ap-
plication to dissolve. (C. P.) In re Phila. Steam
Braid Sewing Machine Co., 187.

A director is not estopped to proceed as an individ-
ual holder of securities in contravention of a plan of
reorganization to which he has not assented.
Love v. Phila. & Reading R. R. Co., 573.

(C. P.)

Act limiting amount recoverable against corpora
tions for negligence causing personal injury, repealed.
See DAMAGES. (C. P.) Fleming v. Penn. R. R. Co.,
526. See LIMITATION OF ACTION. (C. P.) Dowling v.
River Front R. R. Co., 527.

Act requiring treasurer to assess tax on indebted-
ness at nominal value unconstitutional. See CONSTI-
TUTIONAL LAW. (C. P.) Commonwealth v. Delaware
Division Canal Co., 537.

Charter of corporation repealable for cause only.
See CONSTITUTIONAL LAW. Williamsport Passenger
Railway Co.'s Appeal, 309.

Right of corporation to contest constitutionality of
statute where its treasurer is required to assess and
collect a tax. See CONSTITUTIONAL LAW. (C. P.)
Commonwealth v. Delaware Division Canal Co., 537.

COSTS. The Act of March 20, 1810, § 26, which
deprives a plaintiff of costs where he recovers less than
$100, the amount not being reduced by set-off or an
equitable defence, and he has not filed an affidavit of
claim, does not apply to assumpsit to recover unliqui-
dated damages which might exceed $100. (C. P.)
Lukens v. Ferguson, 271.

Where a creditor in good faith and with reasonable
cause for such action orders money into court the
costs may be directed to be paid out of the fund,
although the creditor is unsuccessful in his contention.
(C. P.) Carstairs v. Haggerty, 558.

Costs are recoverable in an action brought in the
Common Pleas for breach of a contract of sale, although
the judgment is for less than $100. (C. P.) O'Neill
v. McVickar, 496.

Costs of deposition of plaintiff not used at trial not
allowed. (C. P.) Lukens v. Ferguson, 306.
Subpoena and witness fee not vouched by produc-
tion of subpoena on taxation not allowed. Id.
Costs imposed upon a trustee. Appeal of Taylor, 356.
Service of a subpoena is taxable as costs, although
not made by a sheriff or constable. (C. P.) Munyan
v. Jones, 465.

The amount chargeable for service of a subpoena since
the Act of April 1, 1887, is' fifteen cents; before the Act
it was twelve and a half cents. Id.

Costs in partition. See PARTITION. Biles's Appeal,
493.

Costs chargeable by sheriff for watchman. See DAY.
(C. P.) Kronse v. Hart, 466.

COUNCILS. City Councils are judges of the
qualifications of their own members, and the Courts
have no jurisdiction with reference thereto. Auchen-
bach v. Seivert, 349.

COUNSEL. The advice of counsel is no protec-
tion to a trustee where the propriety of the action
taken depends upon business judgment. Lechler's
Appeal, 505.

Advice of counsel in case of malicious prosecution.
See MALICIOUS PROSECUTION. Zebley v. Storey, 68.

COUNTY AUDITORS. A settlement of the
amount due to or by a county official made by the
county auditors in a case within their jurisdiction is
final, and can only be affected by an appeal. County
of Northampton v. Herman, 530.

So held where a settlement was made on this basis
of fees allowed by an Act which was afterwards de-
clared unconstitutional. Id.

COUNTY COMMISSIONERS. When com-
missioners not restrainable by injunction. See INJUNC-
TION. Appeal of County of Delaware, 112.

COVENANT SUR GROUND RENT. See
GROUND RENT. Rushton v. Lippincott, 47, 97.

CRIMINAL LAW. The Act of March 31, 1860,
§ 64, making it a misdemeanor for the cashier of a
bank to be engaged in another business than that of
his cashiership, does not apply to the cashier of a
national bank. Appeal of Allen, 136.

False Pretences. See LARCENY. Com'th v. Eich-
elberger, 195.

Larceny. Inducing the owner of goods by means
of a trick or artifice to part with the possession only
of such property, while he intends to retain the right
of property, is larceny; if the owner part with both
possession and property the offence is that of obtain-
ing goods by false pretences. Id.

Where a defendant owing a note for a certain amount,
which has been discounted, on its maturity gives an-
other note for a much smaller amount, accompanied
by the payment of the discount on the larger sum, in-
tentionally creating the impression in the mind of his

CRIMINAL LAW-Continued.
creditor that the second note is a renewal of the first,
and thereupon obtains from the creditor the first note,
animo fur andi, he is guilty of larceny. Id.

DAMAGES-Continued.

Where one is fraudulently deprived of his land, and
after recovering the same brings an action for the
value of mineral taken therefrom by the trespasser
Pleading. Where two counts in an indictment al- while in wrongful possession, he is entitled to recover
leging offences apparently without the period of the the value of the mineral in its improved condition as
Statute of Limitations are followed by an averment | a chattel without deducting for the cost of mining or
setting up the exceptions to the operation of the stat-producing it. Foster et al. v. Weaver, 464.
ute, and a nolle pros. is entered on the second count, the Measure applied where tenants in common had
averment will be referred to the first. Rosenberger v. fraudulently dispossessed their co-tenant. Id.
Com'th, 238.

Practice. Where it is alleged that a defendant is
insane at the time of arraignment, whether such
question shall be preliminarily tried by a jury empan-
nelled for the purpose, is within the discretion of the
Court. Webber v. Commonwealth, 413, 419.

Case in which exercise of discretion was sustained,
although the Judge refused to hear testimony to en-
lighten his discretion. Id.

Where an undisposed-of indictment is missing an-
other may be found for the same offence, and a con-
viction thereon will be sustained. Rosenberger v.
Com'th, 238.

Where in the Oyer and Terminer a venire for less
than forty-eight jurors has issued, or the execution of
the writ has been unfair, the array should be dismissed
upon challenge, but it is not ground of challenge per
se that less than forty-eight jurors are in actual attend-
ance. Showers v. Com'th, 504.

The Court may request the jury to find specially the
facts in a criminal case, and subsequently determine
the question of guilt as a matter of law. Com'th v.
Eichelberger, 195.

After an indictment and pleading thereto and a ver-
dict, it is too late to object to the commitment as in-
formal. March v. Com'th, 566.

CURTESY. A deed to a married woman, her
heirs and assigns, exclusively of her husband, to her
only proper use, benefit, and behoof exclusively as
aforesaid, does not deprive the husband of curtesy.
Rank v. Rank, 397.

DAMAGES. The measure of damages for the
illegal occupation of plaintiff's premises by cumbrous
machinery, is not what it would have cost to remove
the machinery, but the actual loss suffered by the
plaintiff through being prevented from using or ob-
taining income from the premises. Barclay v. Grove,
202.

The defendant, a brewing company, leased premises
to the plaintiff, who was to buy his beer from it and
sell no other beer, and agreed not to permit the sale of
liquor in an adjoining place which the company con-
trolled. The company violated its contract and rented
the said place to a person who sold liquor therein for
the last year of the plaintiff's lease; during that time
the plaintiff's sale fell off; held, a case in which the
plaintiff should not be restricted to nominal damages
for the breach of contract. Schlitz Brewing Co. v.
McCann, 244.

Semble, exemplary damages should not be assessed
against an employer for the negligence of his em-
ployé (dictum of WILLIAMS, J.). McFadden v. Raush,
290.

While a corporation may be held liable to exem-
plary damages for the misconduct of its servants, yet
it is only where the servants have been guilty of
actual malice or of violence, oppression or outrage, or
wanton recklessness. Phila. Traction Co. v. Orbann,
76.

Case in which allowance of such damages was held
erroneous. Id.

The Act of April 15, 1868, § 2, limiting the amount
recoverable in an action brought against a corporation
accepting its provisions to $5000. is virtually repealed
by Art. III. § 21, of the Constitution. (C. P.) Flem-
ing v. Pa. R. R. Co., 526.

In action for breach of contract of hiring for a term
certain by a wrongful discharge, the measure of dam-
ages is prima facie the amount of wages which would
have been earned during the term. (C. P.) Smiley
v. Brownfield, 528.

The plaintiff, who, with another, was entitled to the
remainder after a life estate in personalty, wishing to
effect a loan on the security of the remainder, applied
to the trustee who had power of investment to ascer-
tain the amount of the fund and was told $28,502.57;
in fact it amounted to $31,003.84; the statement pre-
vented the loan, thereby causing loss to plaintiff in
his business, and furthermore, believing from this state-
ment that the fund was diminishing, he sold at a loss
a lien which he had upon his co-remainderman's inter-
est in this estate; he then brought an action against
the trustee; held, a nonsuit was properly entered.
(C. P.) Thompson v. Philadelphia Trust Co., 572.

See RAILROAD. Damon's Appeal, 170. RIGHT OF
'WAY. Potts v. Pa. Schuylkill Valley R. R. Co., 174.
EMINENT DOMAIN. STREETS. TELEGRAPH.

DAMNUM ABSQUE INJURIA. Where the
lawful use and enjoyment of property results without
negligence or malice on the part of the owner in loss
to another it is damnum absque injuria. Peuna. R. R.
Co. v. Marchant, 300, 337.

DAY. The 'day" for which a sheriff is entitled
under the Act of April 1, 1887, to charge as costs for
the services of a watchman $2, is twenty-four hours.
(C. P.) Krouse v. Hart, 466.

DECEDENTS' ESTATES. A debt of an intes-
tate secured by a mortgage on land of which he died
seised is primarily payable out of his personal estate.
Leibert's Appeal, 289.

A distributee to whom an award has been made by
the Court on the audit of au administrator's account,
who afterwards with the other parties interested con-
sents that real estate of the decedent shall be managed
by the administrator, cannot compel the payment of the
amount of the award when the money has been spent
by the administrator for necessaries for the real estate.
Mackey's Appeal, 293.

Where an account of an administrator has been ab-
solutely confirmed and a decree made directing dis-
tribution and the giving of refunding bonds, and such
decree has been complied with, the liability of the ad-
ministrator is at end so far as the fund paid out is
concerned, and creditors must look to the refunding
bonds and any residue of the estate which has not
been accounted for. Schaeffer's Appeal, 323.

Method of probate of decedent's contract for the sale
of realty. (C. P.) Grauch's Estate, 508.

Proceedings to charge realty of decedent in hands of
vendor and heirs must be instituted within ten years
from death. Allen v. Krips, 46.

Not applicable in covenant sur ground rent. Rush-
ton v. Lippincott, 47, 97.

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