NOTICE-Continued.

PARTITION-Continued.

NUISANCE. A lead works is not to be deemed
a nuisance simply because it is shown that a person
residing in the neighborhood, who is peculiarly sus-
ceptible to lead-poisoning, has been poisoned by the
lead or by arsenic used in its manufacture. Price v.
Grantz, 6.

A declaration for a nuisance, with an averment of
special damages, must be sustained by evidence that
the defendant maintained a nuisance which was
troublesome and inconvenient to the whole vicinage,
and that the plaintiff suffered therefrom peculiar in-
jury. Id.

ORDINANCE. An ordinance declaring it law-
ful for a street committee to enter upon lots adjoining
highways and to establish such drains or ditches as
may be needful for carrying off the water from or drain-
ing the highways, and making no provision for com-
pensation to the persons whose lands are entered upon,
and not founded upon any Act making such provision,
is void. Borough of Strasburg v. Bachman, 462.

ORPHANS' COURT. The statutory jurisdic-
tion and authority of the Orphans' Court cannot be en-
larged even by consent. (C. P.) Miller v. Spear, 554.
The Orphans' Court has no power under the Act of
March 29, 1832, to order a private sale for the payment
of debts. Id.

When a sale is void, under the authority of the Act
by which it professes to have been made, it cannot be
sustained by the authority of the Price Act, where
there has been no intention to proceed under that Act.
Id.

The Orphans' Court has jurisdiction where it is
sought to compel the executor, in whose hands are
funds of the decedent's estate, to continue the pay-
ment of an annuity assumed by the decedent in his
lifetime, although the instalments claimed have fallen
due since the decedent's death. Coxe's Appeal, 362.
Jurisdiction in partition. See PARTITION. Taylor's
Appeal, 169; Rawle's Appeal, 85.

The jurisdiction of the Orphans' Court to compel the
payment of a legacy charged on land, given by Act of
Feb. 24, 1834, is exclusive. Brotzman's Appeal, 318.

PARENT AND CHILD. Filial services ren-
dered by a child to a parent, in the absence of an ex-
press contract, are presumably without expectation of
mercenary reward; and rambling expressions of the
parent, expressing gratitude for such services or the
hope that the child will be compensated for them af-
ter the parent's death, are not evidence of a contract.
Ulrich et al. v. Arnold, 394.

The same rule applies where the claimant is the hus-
band of the child, and claim is made on the ground
that he is entitled to recover for his wife's services.
Id.

The claim of a parent for wages earned by his minor
child does not entitle the parent to a lien under the
Act of April 9, 1872. Ely v. Stanton, 502.

See HUSBAND AND WIFE. Eustice v. Plymouth Coal
Co., 430.

PARTITION. Where a gift is made of income
of realty to three and the survivor of them for life, the
fee being devised over on the death of said survivor,

The alienee of the interests of minors is entitled to
have partition in the Orphans' Court. Rawle's Appeal,
85.

The Act of April 27, 1864, allows the counsel fees of
the petitioner only to be taxed with the costs, and the
Court has no authority to tax any other counsel fees.
Biles's Appeal, 493.

A recognizance in the Orphans' Court to secure the
valuation-money in partition remains a lien without
revival, subject to the presumption of payment after
twenty years. Leibert's Appeal, 287.

Under the Act of March 29, 1832, § 42, an order of
sale in partition in the Orphans' Court, can be exe-
cuted only by the personal representative (if there
be one) unless he refuse or neglect to act. Taylor's
Appeal, 169.

The power of the Orphans' Court to appoint a trustee
in partition under the Act of February 24, 1834, § 44,
arises only where there is no personal representative,
or he refuses or neglects to act. Id.

By whom a power of sale is to be executed in a par-
tition in the Orphans' Court. See POWER. Rawle's
Appeal, 85.

PARTNERSHIP. Tripartite articles of partner-
ship contained the following: "As a guarantee by the
party of the first part to the party of the second part
on account of his not being familiar with the business,
and as an inducement by the party of the first part, he
guarantees that the profits of the business shall be
made to the party of the second part equal to 20 per
cent.;" held, not a portion of the partnership agree-
ment, but a mere personal guarantee, and hence not
binding upon a third person who subsequently made
an agreement to pay to the party of the second part
any amount of money necessary upon final settlement
of the firm's affairs to make the party of the second
part whole upon his capital and profits "according to
the terms of the articles of co-partnership." McIntire's
Appeal, 564.

In the absence of an agreement, a liquidating part-
ner is not entitled to compensation for settling the
affairs of the firm. Shriver's Appeal, 564.

On dissolution of a partnership, in order to relieve
retiring partner from responsibility, personal notice of
dissolution must be given to persons who have had
previous dealings with the firm, and notice by publica-
tion to the rest of the world. Forepaugh v. Baker, 299.
PARTNERSHIP ASSOCIATIONS, LIM-
ITED. In a partnership association, limited, under
the Act of June 2, 1874, the powers of the association
must be exercised by the board of managers. Pitts-
burgh Melting Co. v. Rees, 182.

Strangers dealing with a limited association cannot
have the benefit of the inferences which flow from a
relation of general partnership, and must take notice
of the legal restrictions upon the powers of the mem-
bers. ld.

The restriction of liability to $500, except where it
is reduced to writing and signed by at least two man-
agers, by the Act of June 2, 1874, § 5, applies in cases
of sale as well as in those of purchase. Id.

Under the Act of June 2, 1874, while it is not neces-
sary that all the capital subscribed shall be paid in
before the association can begin business, some part
of it must be. Hill, Keiser & Co. v. Stetler, 255.
Where an association is formed and records articles

which set out a certain capital, "payable on the exe-
cution hereof," and no capital is paid in, and no stock
subscription book is kept, the members of the associ-
ation are liable as general partners. Id.

One, not a subscriber, who purchases stock in a lim-
ited association, which has not complied with the law,
and pays the treasurer thereof for such stock at its
par value, has notice in law of the invalid organization
of the association, and becomes liable as a general
partner for debts contracted after his acquirement of
stock. Id.

PARTY WALL. Where a person about to use
a party wall is directed by the erector of the wall to
make such repairs as are necessary before it can be
used, he may set off one-half the amount expended by
him for such repairs against the claim of the erector
for the party wall. (C. P.) Eppelsheimer v. Steel, 380.
PASSENGER RAILWAYS. Article XVI. §
9, of the Constitution, providing that no street passen-
ger railway shall be constructed within the bounds
of any city, borough, or township without the consent
of the local authorities, and the Act of May 23, 1878,
16, to the same effect, did not repeal existing charters,
as to require companies having the right to use streets
without the consent of the local authorities to obtain
the same. Williamsport Pass. Railway Co.'s Appeal,
309.

PAYMENT. In the absence of any agreement
the presumption is that the giving by a debtor to
his creditor of the check of a third person is only a
conditional payment of the debt, but such presump-
tion may be rebutted. Briggs v. Holmes, 10.

Evidence of a course of dealing and an understand-
ing between debtor and creditor that certain checks
should be received as cash, tends to rebut such pre-
sumption, and should be submitted to the jury. Id.
Acceptance of check of third person implies an un-
dertaking to use due diligence in presenting it for
payment, etc., and if the person from whom such check
is received sustain loss through a lack of such dili-
gence, the check will operate as payment. Kilpatrick
v. Home B. & L. Ass'n, 117.

Mere fear of loss of credit does not render a pay-
ment otherwise voluntary, involuntary. Harvey v.
Girard Nat. Bank, 523.

Money voluntarily paid in ignorance of law and
without any fraud having been practiced, cannot be
recovered back. Gould v. McFall, 165.

The rule permitting the application of payments in
the first place by the debtor, and in the second by
the creditor, applies only to voluntary payments.
(C. P.) Crawford v. Bent, 185.

Dividends received from an assignee for the benefit
of creditors are to be applied pro rata, to all the debts
owing to the recipient. Id.

This rule is not altered by the fact that such appli-
cation will have the effect of raising the bar of the
Statute of Limitations as to a portion of the creditor's
claim in an action brought subsequently to recover
the debts on which the payments were made by the
assignee. Id.

to procure proper medical attention for his wife from
other sources. (C. P.) Remick v. Crabtree, 31.
Recovery by physician for services rendered to luna-
tic not to be had in the proceedings in lunacy. See
LUNACY. Appeal of Rogers, 138.

PLEADING. Where a statement or narr. shows
that the plaintiff was a servant of the defendant and
was injured by another employé of the defendant, a
general denial that the plaintiff and the employé were
fellow servants will not render the statement a good
one. (C. P.) Middleton v. Phila. Traction Co., 528.
In an action for negligence the narr. must set out
specifically the duty which has been violated. Id.
Where profert of an instrument is made but oyer is
not craved, the terms of the writing as set forth in the
narr. and declared upon will alone be considered by
the Court. Harley v. The Lebanon Mutual Insurance
Co., 403.

Pleadings filed before the enactment of the Act of
1887 are not affected by that Act. (C. P.) Grossman
v. Huber, 96.

The Act of 1887 does not abolish the distinction
between pleas in bar and pleas in abatement. (C. P.)
Slatteny v. Penna. R. R. Co., 556.

Case is the proper form where action is brought to
recover damages for the subsidence of the surface of
land through the neglect of a subjacent owner to prop-
erly support the same. Williams v. Hay, 469.

Who may make affidavit to statement in assumpsit
on promissory note under Act of May 25, 1887. (C.
P.) Schick v. Goenner, 63.

A statement in trespass that "plaintiff claims dam-
ages for pain and suffering, loss of time, medical attend-
ance and medicines, and for injuries to his shoulder
and head, in the sum of $5000," sufficient with rela-
tion to damages. (C. P.) Schnable v. Schmidt, 153.

A statement in assumpsit, under the Act of 1887,
which leaves it in doubt whether the plaintiff claims
upon a quantum meruit or upon an express contract, is
insufficient. (C. P.) Doriot v. Hagemann, 556.

Facts may be set forth in a statement on informa-
tion and belief. (C. P.) Grimley v. Receveure, 573.
A petition to the Orphans' Court under the Price
Act which does not set out the will of the decedent
from whom the land which it is sought to sell is de-
rived, and to which is not attached the copy of the
will, is informal and improper. Heffner's Appeal, 249.

A petition under the Price Act to give jurisdiction
to the Orphans' Court must allege that the petitioner
is interested in the land to be sold; a mere averment
that he is interested in the decedent's estate is not suf-
ficient. Id.

PLEDGEE. When an agent entrusted with se-
curities has pledged the same as his own to one who
has no notice of any defect in the pledgor's title, the
real owner is not entitled to recover his bonds until
the debt for which they have been pledged is dis-
charged. Klein's Appeal, 479.

Pledge of stock for antecedent debt of a fraudulent
pledgor does not render pledgee innocent holder for
value. See STOCK. Linnard's Appeal, 40.

POOR LAWS. An order of removal of a person
not in receipt of public aid, but alleged to be likely to
become chargeable, without notice to the person to be
affected by it and a regular adjudication upon the
complaint, is void, and an actual removal of such per-
son from his house is a violation of the Bill of Rights.
Overseers of Gilpin Township v. Overseers of Parks
Township, 269.

A pauper is not entitled to notice of an application
for an order of removal. Id.

Where the donee of a power of appointment directs
his executors to divide the subject into parts, the
proper person to make a sale in partition in the Or-
phans' Court, is the administrator d. b. n. c. t. a. of
the donor of the power, and not the executor of the
testator. Id.

A will devised an estate in trust for C. for life and
after his death to the use of the children and issue
"of C," in such shares and for such estate as the
said C. should by last will appoint; in default of such
appointment to the use of the children of C. living at his
decease. C. appointed the estate to his only child, A.
"until the expiration of twenty-one years after the
death of the survivor of certain persons named" upon
the express condition that he should not convey,
assign, or transfer the same, or the rents, issues, and
profits thereof," or do or suffer any act or matter
whereby the estate might be subjected to any legal
process in the nature of an execution, and on breach
of those conditions, or if A. should die within the
period named, C. appointed the estate over to A.'s
children; held, (1) the limitations and restrictions were
in excess of the power and void, and the appointee
took an unrestricted fee; (2) that the exercise did not
violate the rule against perpetuities. (O. C.) Pepper's
Estate, 271; affirmed, Pepper's Appeal, 388.

A power to executors to devote the residuum "to
such institutions or uses as they in their best judg-
ment may consider the most compatible with the
views and instructions which I have given them, it
being my intention that none of my property shall
pass or be disposed of under the intestate laws," is not
well executed by an instrument by which the execu-
tors, after giving a comparatively small portion to
other purposes, alleged by the paper to be according
to the views of the testator, divide the bulk of the es-
tate between themselves. (O. C.) Stout's Estate,
187.

An executor was given power "to give a deed
for my real estate the same as I myself could have
done if living ;" held the power, was a general one, and
could be executed by an administrator c. t. a.,
although the will contained other clauses which gave
the entire estate to the widow for life with a proviso
that in case of remarriage she should have only
what "the laws allow her" and which provided that
the executor should sell on the request of the widow.
Livingood v. Heffner, 148.

The fact that the administrater c. t. a. sold on the
request of the widow made after her remarriage did not
invalidate the sale, as the request was immaterial.
Id.

PRACTICE. The affidavit to a statement under
the Act of May 25, 1887, may be made by either the
legal or the use plaintiff, or his attorney. (C. P.)
Schick, to use, v. Goenner, 63.

The Act of 1887 does not affect pleadings filed
before its enactment. (C. P.) Grossman v. Huber, 96.
If copy be served fifteen days before the return-day
the plaintiff is entitled to judgment for want of sufficient
affidavit, although the writ has been served within
fifteen days of the return-day. (C. P.) Roseman v.
Haydock, 121.

A statement may be filed within fifteen days before
the return-day. (C. P.) Com'th v. Moore, 572.
(Judgment, however, withheld ex majora caute la
until fifteen days after the return-day.)

Statement in tort must be sworn to. (C. P.) Kraus-
kopf v. Stern, 185.

Statement must lay venue. (C. P.) Sundstrom v.
Schofield, 541.

After a sufficient affidavit of defence has been filed
the plaintiff cannot by amending his statement so as
to meet the averment of the defence require an addi-
tional affidavit. (C. P.) Fahlnecker v. Harrington,
541.

Rule for judgment for want of affidavit is too late
three years after a declaration has been filed. (C. P.)
Boyle v. McCafferty, 95.

A bill of particulars may be ordered in tort. (C.
P.) Krauskopf v. Stern, 185.

Bill of particulars of items of damage refused in ac-
tion of tort. (C. P.) Flisher v. Allen, 509.

A pluries sci. fa. on a municipal claim issued more
than five years from the date of the original sci. fa.,
but within five years of an alias, will be stricken off.
(C. P.) City v. Carr, 444.

To charge the real estate of a decedent in the hands
of his widow and heirs, proceedings must be instituted
against them within ten years from his death. Allen
v. Krips, 46.

This rule does not apply to an action of covenant
sur ground-rent. Rushton v. Lippincott, 47, 97.

Where a petition of a subsequent lien creditor to
have money, made at a sheriff's sale, paid into Court
and to have issues framed, alleges that the judgments
prior to his own are without bona fide consideration,
and for the purpose of hindering, delaying, and de-
frauding other creditors, the Court has, under the Acts
of June 16, 1836, and April 20, 1846, no discretion but
to award the proper issues. Schwartz and Graff's
Appeal, 246.

A writ of inquiry of damages falls on the reversal of
the judgment upon which it is based. Com'th v. Buff.,
N. Y. & Phila. R. R. Co., 516.

A garnishee who has answered is entitled to a $10
counsel fee under the Act of June 11, 1885, although
the attachment is discontinued. (C. P.) Schwartz
v. Hall, 406.

A report of a referee under the Act of May 14, 1874,
which fails to state distinctly and separately the facts
found by him and the conclusions of law, is fatally
defective, and will not sustain a judgment. Miller v.
Dunlap, 285.

A husband taken on a capias for his wife's tort is en-
titled to discharge on common bail. (C. P.) Reader
v. Rosendale, 153.

A ca. sa., to which has been returned c. c., and that
the defendant was discharged on entering bail, under
the insolvent laws, does not revive on the refusal of
the Insolvent Court to grant the debtor his discharge
under the Act. Keim v. Saunders, 372.

The Act of June 11, 1879, permitting, in an action
by husband and wife, to the use of the wife, for in-
juries done to her, evidence to be given of damage
suffered by the husband, on the filing of a disclaimer
by the husband of the right to recover such damages
in another action, the Act must be strictly followed,
and the disclaimer filed at the time of bringing the ac-
tion. It is too late to file it at the trial. Du Bois
Borough v. Baker, 384.

A certiorati will not lie to the action of the Quarter
Sessions in appointing a Master and jury of view un-
der the Act of June 2, 1887. Such writ lies only after
the proceedings under the Act have been concluded

Where a railroad company builds and operates a rail-
road upon one side of a street upon land belonging to
itself, it is not liable in damages for the depreciation
of property upon the opposite side of the street, no
part of which has been taken by the company, occa-
sioned by the lawful operation of the road. Penna R.
R. Co. v. Marchant, 300; dissenting opinion of STERRETT,
J., 337.

The right to recover damages, which are consequen-
tial upon the building of a railroad, is complete as soon
as the road is undertaken at the point where the in-
jury is done, and payment is neither made nor secured;
the landowner need not delay bringing his action
until the completion of the work. If he die pending
the work, the action should be brought by his execu-
tor. O'Brien v. Penna. Schuylkill Valley R. R. Co.,
141.

A railroad company is not liable to a passenger for
an injury produced by the negligence of a third person,
between whom and the company there is no privity.
Bunting v. Penna. R. R. Co., 181.

A railroad company whose track is crossed by the
private railroad of a furuace company is not respon-
sible for an accident occurring at the crossing through
the negligent management by the latter's servants of
one of its engines. Id.

A newsboy suffered to come upon a passenger rail-
way car to sell papers is not within the provisions of
the Act of 1868 that persons employed on or about the
works of a railroad company can recover for injuries
suffered only under such circumstances as would have
sustained a recovery by an employé. Phila. Traction
Co. v. Orbann, 76.

See RIGHT OF WAY. Potts v. Penna. Schuylkill
Valley R. R. Co., 174.

REAL ESTATE. Before an action can be main-
tained on a decedent's contract for the sale of real es-
tate, such contract must be duly probated and be put
in condition to be recorded. (C. P.) Estate of Grauch,
508.

Method and effect of making such proof. Id.
Parol evidence admissible to identify land conveyed.
See STATUTE OF FRAUDS. Phillips v. Swank, 561.

Action to charge real estate of decedent in hands
of widow and heirs to be brought within ten years
from death. See PRACTICE. Allen v. Krips, 46. See
Deed.

REAL ESTATE BROKER. A real estate
broker is not entitled to commission unless his ser-
vices have resulted in a contract enforceable between
his principal and another person. Peirce v. Truitt,
569.

REFEREE. Report of referee which does not find
the facts distinctly and separately is fatally defective.
See PRACTICE. Miller v. Dunlap, 285.

REGISTER OF WILLS. Decision on probate
of will cannot be attacked collaterally. See RES AD-
JUDICATA. McCay v. Clayton, 98.

REMAINDER. With the destruction of a par-
ticular estate a contingent remainder supported there-
by falls. McCay v. Clayton, 98.

RES ADJUDICATA. The unreversed decision
of a register of wills is conclusive under the Act of April
22, 1856, whether he admit the will to probate or re-
fuse to do so; and cannot be attacked in a collateral
proceeding. McCay v. Clayton, 98.

See COUNTY AUDITOR. Northampton County v. Her-
man, 530.

RESTITUTION, WRIT OF. A writ of resti-
tution is not a matter of mere right. See PRACTICE.
Gould v. McFall, 165.

RIGHT OF WAY. In order that properties
having no physical connection may be regarded as
one for the purpose of assessment of damages for a
right of way, they must be in use so inseparably con-
nected that the injury or destruction of one must
necessarily and permanently injure the other. Potts
v. Penna. Schuylkill Valley R. R Co., 174.
Where stone is carried from a quarry to a tract used
as a shipping place on a railroad, and from thence to
a marble-yard in the city, where the stone is sold, the
quarrying and selling being carried on by the same
firm, and the quarry, shipping place, and yard have
no physical connection, they cannot be treated as one
property for the assessment of damages. Id.
Contract to acquire right of way interpreted. Ap-
peal of Harris, 189.

See TURNPIKE. Appeal of Phila., Newtown & N. Y.
R. R. Co., 343.

ROAD LAW. An assessment of damages under
the general road law is subject to review in the same
manner and to the same extent in boroughs where that
law prevails as in townships. In re Opening of C
Street, 441.

The Court of Quarter Sessions has jurisdiction to
lay out a road which is partly within and partly with-
out a borough. In re Road in Verona Borough, 534.
After a report of viewers has been confirmed, purely
technical exceptions thereto cannot be entertained.
Id.

RULE IN SHELLEY'S CASE. When the
estate limited to the ancestor is equitable and the re-
mainder to the heirs legal, the two will not coalesce.
Little v. Wilcox, 215.

A. executed an agreement declaring that he held
certain land in trust for B. for his life, and after his
decease for his heirs on B. complying with certain
covenants. The agreement also provided that on A.'s
death B. should enjoy the property for his life and at
his death it should go to his heirs "in the same man-
ner as if title had now passed subject to a lien for the
performance of the covenant." A. took an equitable
estate for life only and not a fee under the rule in
Shelley's Case. Id.

Under a bequest of personalty to one for life, and after
her decease to such persons as would be entitled under
the intestate laws, if the first taker had survived her
husband and mother; the persons so taking take as
purchasers. (O. C.) Kountzleman's Estate, 467.

SALE. See BAILMENT. Bretz v. Diehl, 204.
When a machine is sold and by the terms of the
agreement it is to suit the purchaser, he is the sole
judge of its fulfilment of his requirements, and may,
if he act in good faith, reject it, although his objec-
tions may seem to others unreasonable. Seeley v.
Welles, 347. See SHERIFF'S SALE. TAX SALE.

SET-OFF. In an action by an assignee for the
benefit of creditors against a bank to recover the
amount standing to the assignor's credit at the time
of assignment, the bank cannot set off the amount of
notes of the assignor discounted by the bank and
maturing after the assignment and before suit brought.
Chipman v. Ninth Nat. Bank, 353: reversing same
case, 184.

A claim acquired after the debtor has made an as-
signment for the benefit of creditors cannot be set off
against his assignee, nor can a liability which had not
matured at the time of the assignment, although due
before action brought. Id.