CONFLICT OF LAWS-Continued.
livered to a common carrier.
Ulmer, 233.
(Super. Ct.) Lowrey v.
Generally, as to formalities, interpretation, obligation
and effect, a contract is governed by the laws of the place
where it is made, and if valid there, is valid everywhere;
but when made in one state to be performed in
another, its validity and effect are to be determined by
the laws of the place of performance. Burnett v. Penn-
sylvania R. R. Co., 299.
When parties enter into a contract, the presumption is
that the contract is made with reference to the laws of
the place of performance, unless it appear that the inten-
tion was otherwise. Id.
B., employed as a flagman in New Jersey by a
Pennsylvania corporation, was given free transporta-
tion to a point in the state of New York. He re-
ceived an employee's trip pass from Philadelphia to the
point of destination, by the terms of which he assumed
all risks of accident. In the journey he was injured at
Harrisburg, Pennsylvania, through the negligence of the
employees of the railroad company: held, the company's
negligence was in the exercise of its franchises as a
Pennsylvania corporation in Pennsylvania, and its liabil-
ity was to be determined by the law of that state. Id.
CONSENT. Consent may be by ratification as well
as by previous permission, and may be waived by ac-
quiescence without objection in a long continued act.
Potter v. Scranton Traction Co., 453.
CONSIDERATION. A want of consideration is
not a defence to a sealed instrument, when no value or
consideration was intended to pass at the time of the ex-
ecution. Meek v. Frantz, 117.
CONSTITUTIONAL LAW—Continued.
tion 2, P. L. 65, which was passed for the purpose of
carrying into effect Article IX., section 8, of the Consti-
tution, providing for a uniform limitation of the debt in-
curring powers of municipalities. Id.
The title of the Act of April 15, 1891, P. L. 17, is “An
Act to provide for an appeal of county commissioners,
cities or other municipalities and all persons interested in
the damages for laying out, widening and grading, open-
ing or changing the lines or grades of any public street
or alley in this Commonwealth from the decree of the
Court of Quarter Sessions confirming the report of view-
ers assessing such damages;" the first section of the Act,
after providing for an appeal, continues as follows, "pro-
vided the appeal be taken within thirty days after con-
firmation of the report by said jury; provided that notice
be given to the commissioners of the proper county, or
their clerks, of the time and place of holding such view:
held, the second provision was void under Art. III., sec.
3, of the Constitution, because there was no indication in
the title of any legislation of any matter connected with
such proceedings until the time of taking the appeal; (2)
that while the proviso was germane, it was not suggested
in the title in any way that could give notice of the legis
lative purpose. (Super. Ct.) In re Road in Otto Town-
ship, 289.
An Act entitled "An Act relating to the county com-
missioners of Cambria county" may properly provide for
the employment by such commissioners of a competent
clerk, and provide for his compensation, without violating
Art. III., sec. 3, of the Constitution. (Super. Ct.) Com-
monwealth v. Lloyd, 290.
The title of the Act of July 2, 1895, P. L. 428, suffi-
Where fraud is alleged to have been practiced in obciently covers the provisions of the Act providing for the
taining the execution of a surety bond to a lease, and licensing of lodging houses of a certain character, the
there is evidence to sustain the allegation, binding in- conditions, both with reference to the sanitary condition
structions to find for the plaintiff should not be given. of the house and the character of the owner, which are to
govern the grant of a license, and the regulation of such
houses and declaring the keeping of a lodging house un-
licensed a misdemeanor, and hence does not contravene
Art. III., sec. 3, of the Constitution. (Super. Ct.)
Commonwealth v. Muir, 328.
Want of consideration is not a defence to an executed
and delivered bond, and where failure of consideration is
alleged as a reason for invoking equity, the petition for a
rule to show cause why the judgment should not be
opened or stricken off must aver that the failure of con-
sideration was not the fault of the defendant. Anderson
v. Best, 501.
CONSTITUTIONAL LAW. Where a statute
has been declared by the court of last resort constitutional,
the decision is conclusive upon lower courts as to that
question, notwithstanding that, in subsequent proceed-
ings, additional reasons are alleged against it. The
court of last resort is presumed to have considered all
existing reasons. (Super. Ct.) Commonwealth v. Geesey,
No appeal will lie from a summary conviction or
from a recovery of a penalty before a magistrate
except upon allowance by the appellate court or a judge
thereof. Commonwealth v. McCann, I.
The Act of May 7, 1887, "An Act to enforce against
railroad corporations the provisions of section 7 of Arti-
cle XVI. of the Constitution" is applicable to street rail-
way companies. (C. P.) Cheetham v. Attorney General,
The Act of June 27, 1895, has but one object, the
substitution, in certain counties, of a controller for an
auditor; while this involves the abolition of one office
and the creation of another, both are parts germane to
the one purpose, and therefore the Act does not violate
Article III., sec. 3, of the Constitution. Lloyd v. Smith,
363.
Legislative classification of counties for proper pur-
poses is permitted by the Constitution, and the Legisla-
ture may determine what difference between and among
counties calls for a difference of class, subject to the
supervision of the courts to prevent the enactment of
special legislation under the guise of classification. Id.
A mere change in a name of an office to which duties
are attached, or of the officer by whom they are to be
performed, is not a revival, amendment, extension or
conferring of the provisions of the Act creating the
office, within the prohibition of Article III., sec. 6, of the
Constitution. Lloyd v. Smith, 363.
The mere fact that an Act confers certain powers on
Where it is the duty of the Legislature to change an cities of all classes, some of which are not contained in
existing system, because of a constitutional provision, a the Act regulating cities of the first class, does not make
law passed for this purpose, general in terms and evi- the later Act an amendment of the earlier in the consti-
dently intended to provide a uniform system for all sub-tutional sense. (Super. Ct.) Commonwealth v. Muir,
jects to which it relates, will abrogate a local statute on 328.
the same subject, without special words of repeal. Chal- CONTRACT. To constitute a contract by offer
fant v. Edwards, 261.
and acceptance, the acceptance of the offer must be abso-
lute and identical with the terms of the offer. (Super,
Ct.) Isaac Joseph Iron Co. v. Richardson, 487.
The Act of February 12, 1869, section 66, restricting
the indebtedness of a sub-school district in Pittsburgh to
$50,000, is repealed by the Act of April 20, 1874, sec-
Silence may, under certain circumstances, be equiva-
CONTRACT-Continued.
lent to express assent. The law will not allow a man to
make or accept a promise which, he knows, the other
party understands in a different sense from that which he
understands it himself. Id.
If a given contract between relatives, as to a matter in
which both are interested, is a fair and conscionable con-
tract intrinsically, it is of that character to all intents and
purposes. Clark v. Clark, 57.
It is not in the power of contracting individuals to
prohibit the erection of structures which may be directed
by the police power of a municipality. Fidelity Trust
Ins. & S. D. Co. v. Fridenberg, 246.
Generally, as to formalities, interpretation, obligation
and effect, a contract is governed by the laws of the place
where it is made, and if valid there, is valid everywhere;
but when made in one state to be performed in another,
its validity and effect are to be determined by the laws
of the place of performance. Burnett v. Pennsylvania
R. R. Co., 299.
When parties enter into a contract, the presumption is
that the contract is made with reference to the laws of
the place of performance, unless it appear that the inten-
tion was otherwise. Id.
A contract of sale of goods in New York, made by a
traveling salesman of a New York house to a business
firm in Pennsylvania, is governed by the law of New
York, and, where the contract is made some months be-
fore consummation by the delivery of the goods to a car
rier, the question as to whether the purchasers knew
themselves to be insolvent, is not to be limited to the time
of purchase. If they knew themselves to be insolvent
at the time of the delivery of the goods, the seller may
rescind the contract. (Super. Ct.) Lowrey v. Ulmer, 233.
A forfeiture is not favored, and it should be clearly
authorized by the contract, and the terms of the contract
strictly followed in asserting it. Miller v. Neidzielski,
530.
The law does not favor contracts in restraint of trade
and, in cases where such contracts are enforced, the proof
of the making must be clear and indubitable. (Super.Ct.)
Pfeifer v. Rahiser, 539.
The mere fact that a contractor with a city has given
large commissions to secure a contract, does not afford to
the city an excuse for not complying with the same,
Commonwealth ex rel. Century Co. v. Philadelphia, 426.
Where goods do not equal the representations of the
seller at the time of purchase, the defendant has a right
to rescind the contract, return the property and demand
the return of the money paid on account of the purchase,
or retain the property and have it deducted in an action
for the price, or recover, in an action of deceit, the dif-
ference between the value of the goods as represented
and their value at the time of the sale. Lukens v. Aiken,
161.
Nothing less than fraud, mistake or illegality will jus
tify a court of equity in rescinding an executed contract.
So, where a water company has contracted with a bor-
ough to furnish water from a stipulated source and that
source proves inadequate, a bill to annul the contract
must be dismissed. Borough of DuBois v. DuBois City
Water Co., 417.
Where suit is brought to recover on a contract for sup-
plying a borough with water, and the defence is a failure
to fully comply with the terms of the contract by the
plaintiff, it is error to give binding instructions for defend-
ant, if it be shown that any water was supplied at all.
The plaintiff is entitled to compensation for as much as
was actually supplied and used. United States Water
Works v. Borough of DuBois, 419.
The general principle is that a chattel ordered to be
manufactured continues the property of the manufacturer
CONTRACT-Continued.
until completed and delivered or tendered. The contract
is executory, and the title does not pass until the manu-
facture is completed and the article ready for delivery.
(Super. Ct.) E. Keeler Co. v. Schott, 316.
A. & Co. gave to a bank their note and, as collateral,
the bond and mortgage of C., upon the express condition
that they were not to be entered of record, unless some-
thing thereafter occurred which, the bank should con-
sider, made it necessary to take such action: held, that if
it was lawful for the bank to accept the security upon the
condition named, it was bound to keep its contract and
could not be charged with neglect for not securing
the debt by violating the contract. Allentown National
Bank v. Trexler, 97.
An agreement whereby certain parties advance money
to a land company, on condition, inter alia, that the same
shall be expended by the company in payment for and for
the improvement of land purchased by said company and
the proceeds of the sale thereof be paid to a trustee to
repay the original advance, said trustee to hold all the
capital stock of said company as security, is a valid agree.
ment between the parties thereto and a creditor of the
company cannot attach, in the hands of the said trustee,
money which has been deposited with it for the purpose
of repaying such advance. B. & O. R. R. Co. v. Ken-
sington Land Co., 133.
Even if the consideration for such agreement be not
sufficient, a creditor, before attacking the same, must
show that the land company was insolvent. The mere
existence of a judgment in his favor in a foreign attachment
suit is not sufficient evidence of this fact. Id.
Where a policy of fire insurance authorizes the assign-
ment or transfer thereof to be brought to the office of the
company to be "entered and allowed," there is the as
sumption of an existence of a right to elect whether to
grant or withhold the allowance, but the nature of the
contract and its express recognition of the right of the in-
sured to sell his policy requires that the right to elect
shall be exercised not arbitrarily and at will but for cause
and in harmony with the purpose and spirit of the con-
tract. Marshall v. Franklin Ins. Co., 473.
A refusal to enter and allow a transfer of a policy
solely on the ground that the company had decided not
to consent to the transfer of the old policies, but to ter
minate them as fast as possible, is an arbitrary exercise
of power and a violation of the contract. Id.
Where a contract for building provides that any varia
tion from its express conditions to be binding shall be in
writing and, also, provides for a per diem reduction from
the contract price for every day's delay by the contractor
beyond a fixed day, unless it "could not with reasonable
diligence and prudence have been avoided and foreseen"
by him, it is solely for the jury to determine whether the
delay could or could not have been avoided and the bur-
den is on the contractor to show that he was not wanting
in diligence or foresight. Focht v. Rosenbaum, 552.
CONTROLLER. The discretion vested in the
controller of the city of Philadelphia is not arbitrary but
legal; when, therefore, he is called upon by the courts
the facts must show that they bring the case within his
discretion, and that it was exercised in obedience to law.
Commonwealth ex rel, Century Co. v. Philadelphia, 426.
Where to an alternative mandamus, issued to compel
the countersigning of a warrant issued upon a municipal
contract set out in the writ, the controller returns that he
has refused to sign because it did not appear that any
contract had been entered into as required by Art. XIV.,
of the Act of June 1, 1885, the return is demurrable for
want of precision. Id.
The controller cannot interfere with the discretion of
other municipal departments; his control as to such de-
partments extends only to seeing that they do not exceed ments of the president. The action of the officer is outside
the appropriations or apply them to purposes not within the line of his duty, and can only be regarded as tortious
their proper scope. Id.
in character. Investment Company v. Eldridge, 181.
The fifteenth section of the Act of June 27, 1895,
which provides that all duties devolving, and all powers
conferred on, county auditors by the Act of April 15,
1834, shall be performed and exercised by the county
controller, so far as regards county accounts and state
taxes, is not unconstitutional. Lloyd v. Smith, 363.
County auditors are not constitutional officers in the
sense that the continuance of their office is mandatory; at
the most, the expression "auditors and controllers" in
Art. IV., sec. I, makes the office of auditor constitutional
only in the alternative, and it may be abolished, provided
the alternate, the controller, is put in its place. Id.
See COUNTY AUDITORS, Lloyd v. Smith, 363.
CORPORATION. The certificate as to the per-
centage of capital stock paid in cash, required when an
application is made to the governor for a charter, is in-
tended, primarily, for the information of the officers of
the Commonwealth. If the charter be granted this cer-
tificate is to be recorded for the benefit of the public.
Patterson v. Franklin, 441.
A corporation is not restrained to contracts under seal,
It may, by the instrumentality of its agents, contract,
within the sphere of its functions, pretty much as a nat-
ural person may. (Super. Ct.) McCullough v. Hart-
ford Fire Ins. Co., 567.
When the subject matter of a by law is clearly alien
to the nature of a corporation and a departure from its
purpose it is ultra vires and void. (Super. Ct.) Crump-
ton v. Pittsburgh Council, 335.
A by-law of a corporation requiring the payment of a
certain sum to assist in obtaining legislation restricting
emigration is ultra vires, where the object of the corpo-
ration is to assist its members in obtaining employment
and the establishment of a sick and funeral fund. Id.
Where a corporation has no right of action its assignee
for the benefit of creditors can have none. Patterson v.
Franklin, 442.
A corporation having made an assignment for the
benefit of creditors, the assignee brought an action of
assumpsit against the corporators on the ground that in
applying for a charter they had falsely certified that ten
per cent. of the capital stock had been paid in in cash:
held, (1) the corporation being a gainer and not a loser
by the alleged fraud, could not legally claim that it was
injured by it; (2) that neither the corporation nor its as-
signee bad any right of action against the defendants
growing out of their false statement in the certificate.
Patterson v. Franklin, 441.
Where a receiver has been appointed for an insolvent
corporation whose stockholders are by statute rendered
liable, individually, to a certain extent, for the debts
of the corporation, a creditor cannot maintain an action
against a stockholder to enforce the individual lia-
bility, for all right of action against the stockholders has
passed to the receiver for the benefit of the creditors at
large. Cushing v. Perrot, 129.
Members of a corporation legatee may hold and advo-
cate individual opinions, the holding of which, by the
corporation, is made by the will a cause of forfeiture of a
bequest, and this fact will not affect the right of the corpor-
ation to the legacy; but if the corporation's agents, offi.
cers and managers, by authority of the corporation, aid or
encourage such opinions, the legacy is forfeited. White's
Estate, 136.
A transfer of shares in a failing corporation, made by
the transferrer in order to escape his liability as a share-
holder to one who, for any cause, is incapable of re-
sponding in respect to such liability, is void as to stock-
holders as well as to creditors. Burt v. Real Estate Ex-
change of Philadelphia, 277.
Service cannot be had upon an officer of a corporation
temporarily within the territorial limits of the court, where
the corporation has neither office nor agent and where
it transacts no business. Bailey v. Williamsport & North
Branch R. R. Co., 87.
COSTS. Where a decree is made requiring per-
formance of an Act by a defendant and also the payment
of costs, if it appear by the record that the case is founded
on fraud by the defendant, attachment will lie to com-
pel him to pay the costs, although he have complied
with the rest of the decree. (Super. Ct) Duff v. Mc-
Donough, 496.
CO SURETY. A claim by a joint obligor against a
deceased co-surety on a bond must be made to the ad-
ministrator of the estate. If there be no administrator,
one should be raised for the purpose of the action; the
heirs of the decedent cannot be held to personal lia-
bility. (Super. Ct.) Wetmore v. Dobbins, 540.
COUNTIES. Legislative classification of counties
for proper purposes is permitted by the Constitution, and
the Legislature may determine what difference between
and among counties calls for a difference of class, sub-
ject to the supervision of the courts to prevent the en-
actment of special legislation under the guise of classifi-
cation. Lloyd v. Smith, 363.
COUNTY AUDITORS. The 15th section of the
Act of June 27, 1895, which provides that all duties de-
volving and all powers conferred on county auditors
by the Act of April 15, 1834, shall be performed and
exercised by the county controller so far as regards
county accounts and state taxes, is not unconstitutional.
Lloyd v. Smith, 363.
County auditors are not constitutional officers, in the
sense that the continuance of their office is mandatory; at
the most the expression "auditors and controllers" in
Art. XIV., sec. 1, makes the office of auditor constitu-
tional only in the alternative and it may be abolished,
provided the alternate, the controller, is put in its place.
Id.
Under the Act of June 25, 1885, sec. 11, P. L. 187,
the township or borough auditors must first audit the ac-
count of the tax collector, before a judgment entered,
by virtue of warrant of attorney, upon his official bond
may be enforced by scire facias. (Super. Ct.) Com-
monwealth v. Geesey. 274.
COUNTY COMMISSIONERS. By the Act of
May 7, 1889, county commissioners are allowed $3.50 a
day for each day actually and necessarily employed in
the discharge of the duties of their office. Where there
is a dispute as to the necessity of all the attendance for
which compensation is claimed, an appeal lies to the
courts and the question is for the jury. Mansel v.
Nicely, 264.
Where a commissioner submits a sworn account, which
is passed by the county auditors, there is a presumption
in favor of its correctness which can only be overcome
by positive testimony to the contrary. Id.
The Act of May 7, 1889, provides that the salary al-
The wrong doing of the president of a corporation, in lowed "shall be in lieu of all other compensation and
giving false information to a debtor of the corporation, charges for the individual services and expenses of said
cannot be visited upon the company so as to deprive it commissioners." This Act was followed by the Act of
of its right to recover money loaned prior to the state- May 13, 1889, allowing county commissioners "their
COUNTY COMMISSIONERS-Continued.
traveling expenses necessarily incurred in the discharge Upon a general verdict of guilty on an indictment con-
of their official duties:" held, the latter did not repeal taining two counts, the court may impose sentence on
the earlier Act, but merely supplied something for which both, or on a single count, suspending sentence on the
it had not provided; (2) that under the Act of May 13, other; therefore, a sentence without specifying the count
1889, a commissioner may recover traveling expenses in is to the advantage of the defendant, since it must be
the performance of official duties, but cannot recover ex-treated as a sentence on both counts. Id.
penses incurred each day in going to and returning from There is nothing in the common law to prevent the
his office. Id.
joining in one indictment of several distinct offences of
the same degree against the same person. Id.
The Act of May 7, 1889, P. L. 109, does not repeal
the Act of March 16, 1872, P. L. 405, relating to the
county commissioners of Cambria County. (Super. Ct.)
Commonwealth v. Lloyd, 290.
COVENANT RUNNING WITH LAND.
In equity, the test by which to determine whether a cov-
enant in a deed runs with the land is the intention of the
parties, to ascertain which resort must be had to the words
of the covenant read in the light of the surroundings of
the parties and the subject of the grant. Landell v.
Hamilton, 241.
Where there is one count of an indictment which will
sustain a sentence, it cannot be reversed. The same
reason will apply when both counts of an indictment are
good, where the offences charged are by statute made
felonies of the same nature and are visited with the same
penalties. Id.
On an indictment, containing a single count, charging
the crime of murder in the first degree, a conviction of
an assault and battery is not sustainable. (Super. Ct.)
Commonwealth v. Adams, 571.
Where it is clear from the surroundings of the parties, On an indictment for felony, there cannot be a convic-
the subject of a contract and its purpose, that the intention of a constituent misdemeanor, if it appear that the
tion was to create a covenant running with the land, the trial and judgment tend to deprive the defendant of some
fact that more apt words might have been used to express legal advantage. Id.
this intention will not be permitted to defeat it. Allen
v. Hamilton, 245.
A trial for assault and battery on an indictment for
murder is unjust to the defendant, for it deprives him of
CRIMINAL LAW. In order to sustain an in-the opportunity and right to settle the misdemeanor and
dictment for a nuisance in building within the line of
a street, the Commonwealth must prove that the street
has been opened and laid out by the proper authorities
of such a width, at the place where the building is, as to
bring it within the lines of the street. (Super. Ct.)
Commonwealth v. Cassell, 213.
Larceny being an offence against personal property
and burglary, or the offence under our statute known as
statutory burglary, being an offence against realty, the
two offences are so dissimilar that an acquittal of a
charge of larceny will not sustain a plea of autrefois
acquit upon a charge of statutory burglary. (Super.
Ct.) Commonwealth v. Tadrick, 215.
Semble. It is doubtful whether one who is invited to
enter a dwelling by the occupants and whose entry is,
therefore, neither actively or constructively against their
will, can be deemed to enter "unlawfully and mali-
ciously" within the meaning of these words when em-
ployed in a highly penal statute. Id. SMITH, J., dis-
The Act of March 31, 1860, sec. 50, P. L. 442, allows
the conviction of a defendant for an attempt to com-
mit the crime charged in the indictment, and as the test
whether a plea of autrefois acquit should be sustained
is whether the evidence necessary to support the second
indictment would have sustained a conviction under the
first, the question, where this plea, based on an acquittal
of larceny, is entered to an indictment for statutory bur-
glary, is whether the evidence would have sustained a
conviction for an attempt at larceny; if it would, the plea
is a good plea. Id.
Criminal law, practice. A greater latitude is per
mitted in cross-examination of a defendant who has
offered himself as a witness in a criminal case, than in
the case of an ordinary witness. Commonwealth v.
Fitzpatrick, 156.
compels him to defend, without notice, against murder,
manslaughter, assault with intent to commit murder, and,
finally, simple assault and battery; besides this, such
conviction is, by implication, forbidden by the Act of
March 31, 1860, sec. 99, P. L. 407. Id.
CURRENCY. See BANKS AND BANKING. Crane
v. Fourth Street National Bank, 113.
CUSTOM. See EVIDENCE. (Super. Ct.) Collins
v. Mechling, 235.
DEALER. One who buys to keep or makes to sell
is not a dealer, within the meaning of the mercantile
license tax acts. Commonwealth v. Gormley, 6.
A plumber who buys materials which he puts into
buildings, putting his own work upon them, is not a
dealer but, so far as the actual dealers are concerned, is
a consumer of the materials which he employs. Id.
DEATH. The action given to a widow by the Act
of April 15, 1851, for injuries resulting in the death
of her husband is not original but derivative and only in
succession to, or substitution for, the right of action of
the husband, in case he has not asserted it in his life-
time. Hughes v. Delaware and Hudson Canal Co., 393.
DEBTOR AND CREDITOR. When a pre-
sumption arises that a legacy was intended to be payment
of a debt, due by the testator to the legatee, parol testi-
mony of declarations by the testator as to his intention is
admissible to repel or support the presumption. (O. C.)
Schoenberg's Estate, 519.
But such evidence is not admissible except where the
presumption has actually arisen; it is not allowed to
create the presumption. Id.
DECEDENT'S ESTATE. The Orphans' Court
controls proceedings of either executor or administra
tor to sell land of a decedent for the payment of his
debts and may spur an indolent officer to promptness or
stay the hands of a reckless and arbitrary one. Smith's
Estate, 532.
Where an indictment contains two counts, the first
charging larceny and the second receiving goods
with knowledge that they were stolen, not alleging The Orphans' Court, in a matter in which a con-
that the property referred to is the same mentioned in the test was pending as to the validity of a codicil, made
first count, the indictment must be treated as at common ten years after the date of the will, by which codicil
law, and not under the Act of March 31, 1860, sec. 24, debts to an amount practically destroying his interest in
P. L. 36, and, therefore, a general verdict, not defining the estate were charged upon land devised to one of the
under which count the defendant is convicted, will testator's two sons, ordered a sale of such land for the
stand. (Super. Ct.) Commonwealth v. Stahl, 339.
payment of debts within eight months after the decedent's
DECEDENT'S ESTATE—Continued.
death, thus periling the interests of the devisee and en-
hancing those of his brother, the executor, when no
creditor could have been in danger by reason of the de-
lay: held, this action was an abuse of discretion and should
be reversed. Id.
A claim by a joint obligor against a deceased co-surety
on a bond must be made to the administrator of the es-
tate. If there be no administrator, one should be raised
for the purpose of the action; the heirs of the decedent
cannot be held to personal liability. (Super. Ct.) Wet-
more v. Dobbins, 540.
One having a claim against a decedent's estate and,
also, a policy of insurance which he had the right to
collect, surrendered the policy to the insurance company
and also assigned the claim. The company made no
claim against the estate, as assignee of the claim, it being
paid by the surrender of the policy. A subsequent as-
signee of the same claim presented a bill for it against
the estate of the decedent: held, the claim should
not be allowed. (O. C) Schramm's Estate, 384.
DEED. An estate in fee simple, duly conveyed by
sufficient deed, cannot be divested by a recital in a sub-
sequent deed that the grantor and the grantee "have
been advised that the effect of the said deed of convey
ance will be different from what then was and still is the
intention of the parties: .
wherefore the said deed
of conveyance has been by the consent of the said part-
ies withdrawn, annulled and cancelled." Tate v.
Clement, 561.
DEPOSITARY. A depositary of money who, in
good faith, pays it over to a third person by the direction
of the depositor, is not liable to one to whom the deposit-
ary has assigned the said money, of which assignment
the depositary has no notice at the time of payment.
Commonwealth v. Sides, 361.
DISTRICT ATTORNEY. The district attorney
in each county being vested with all the powers which
formerly belonged to the deputy attorney general, the
Commonwealth may, at his instance, remove a record
in a criminal case for review without special allowance
of the proper writ. (Super. Ct.) Commonwealth v.
Cassell, 213.
(1) that in each case the erection of the wall was a de-
claration by the lot owner building it that to that extent
he did not ask for light and air; (2) that equity would
not compel the servient lot to award to the dominant lots
that which the owners thereof by their own act had de-
clared valueless to them; (3) the acts of the owners of
the dominant lots in erecting the walls were the inde-
pendent acts and deeds of each owner not affecting the
rights of the other; (4) that the servient lot was relieved
from building restrictions only to the extent that the
dominant lot owners had gone equally in dispensing
with such restriction. Landell. Hamilton, 357;
Allen v Hamilton, 359.
ELECTION. Where a will gives to the widow of
the testator the income of one-third of the estate "also
the $300 exemption allowed under the Act of April 14,
1857, and its supplements, the above to be in lieu of
her dower at common law or under the statutes of this
state," the widow must elect between the legacy and
the exemption and cannot, after having property to the
value of $300 set apart to her by proceedings under Act
of 1857, claim the legacy of $300 in addition, Snider's
Estate, 162.
EMINENT DOMAIN. A city having taken a
building for public use, the tenant claimed compen-
sation. His lease was for five years and it had
been agreed between himself and his lessor that he should
have the absolute right of renewal for five years more,
but this agreement was omitted from the writing by mis-
take of the scrivener; viewers gave only the value of the
lease as written, on the ground that to allow the value of
the renewal privilege would be to reform the lease. The
tenant filed a bill against the city, and his landlord, pray-
ing reformation: held, the tenant's remedy was by appeal
and the demurrer to the bill should be sustained. Loble
v. City of Philadelphia, 50.
The measure of damages, where land has been entered
upon, under the right of eminent domain, is the difference
between the market or selling values of the property en-
tered, before the entry was made and afterwards. Struth-
ers v. Philadelphia and Delaware Co. R. R. Co., 120.
Where land is taken by right of eminent domain the
See ATTORNEY AT LAW. (O. & T.) In re Shoe-jury cannot allow damages for distinct items of claim
maker, 54.
e. g. because an alleged right of way was obstructed. Id.
DONATIO CAUSA MORTIS. See TRUST. Where part of a lot is taken by a municipality for high-
Dougherty v. Shillingsburg, 297.
way purposes and the highway is constructed above the
DRAFT. Where a draft has been endorsed for col-grade of the lot, evidence of the amount of cubic feet
lection and it is stated in the endorsement that its pur- necessary, and what it would cost, to fill up the remaining
pose is the collection of the amount for the credit of the portion of the lot in order to bring it up to the highway
endorser, the title to the draft remains in the endorser, grade is admissible, as showing elements of damage
and passes to the agent for collection only so far as is arising from the taking of the land. Patton v. Philadel-
necessary for the purpose of the endorsement. Crane v.phia, 147.
Fourth St. National Bank, 113.
EARNINGS. Profits derived from an investment
in the management of a business enterprise are not earn-
ings and should not be included under the head of loss
of earning power in the measure of damages. Good-
hart v. Pennsylvania R. R. Co., 545.
Where an oil-pipe line, laid upon land by virtue of
the right of eminent domain, is connected with pipes of
another line already laid there, boxes inserted in and ex-
tending above the ground, within the right of way of the
original line but rendered necessary solely by the use of
the second line in connection with the one previously
laid, are to be considered as an element of damage occa-
The value of earning power is not to be settled by ex-sioned by the laying of the second line. (Super. Ct.)
pert testimony, but by testimony as to what plaintiff did
actually earn or what his services were worth at the time
of the injury. Id.
McMillan v. Philadelphia Co., 222.
In assessing damages for taking land, by virtue of the
right of eminent domain, injury which may accrue to
EASEMENT. The owner of a lot divided it into the remaining land, by reason of the negligent operation
three and sold the three lots separately, making in each of the appliances necessary for the purpose for which the
deed the middle lot servient to the other two by certain land has been taken, cannot be considered, but only such
building restrictions for the purpose of furnishing light injury as a proper and ordinarily careful use of such
and air. Each of the owners of the dominant lots appliances would necessarily involve. (Super. Ct.) Den-
erected walls upon the lines between them and the mid-niston v. Philadelphia Co., 332.
dle lot, differing in extent and of such a character as In an action to recover damages for the laying of a pipe
clearly not to be intended for building purposes: held, line, in the exercise of a right of eminent domain, the
|