ÆäÀÌÁö À̹ÌÁö
PDF
ePub

carries out the agreement, is not a bona fide
purchaser of the stock. Hayden v. Charter Oak
Driving Park, 27 A. 232, 63 Conn. 142.

SCHOOLS AND SCHOOL DIS-
TRICTS.

Location of schoolhouse.

his seal, and no other is necessary.-Loraw_v.
Nissley, (Pa. Sup.) 27 A. 242; Appeal of Ev-
ans, Id.

Searches and Seizures.
See "Intoxicating Liquors," 4-6.

Seaworthiness.

1. The discretion of a board of school di-
rectors as to the location of schoolhouses is See "Shipping," 1.
not subject to the control of equity.-Roth v.
Marshall, (Pa. Sup.) 27 A. 945.
Failure of board to organize-Appoint-
ment of new board.

2. Where six persons elected as members
of a school board divide into two equal fac-

See "Evidence," 4.

41.

Secondary Evidence.

Separate Estate.

SET-OFF AND COUNTER-

CLAIM.

tions, and each faction attempts an organiza- See "Husband and Wife," 8-13.
tion in the absence of the other, with a view of
usurping all the power, and excluding the other
from any share of control, no organization of
the board is effected, within the meaning of
Act April 22, 1863, which requires that an
organization of the board shall be had on the
first Monday of June, or within 10 days there-
after; and hence the court of quarter sessions
has authority to appoint a new board, under
Act May, 1854, § 9, which provides that, if "all
the members of any board of directors shall
neglect or refuse any duty enjoined by law,"
the court of quarter sessions may, on complaint
in writing by six taxable citizens of the dis-
trict, declare their seats vacant, and appoint
others in their stead. Mitchell, J., dissenting.
-In re Butler Tp. School Dist., (Pa. Sup.) 27 A.
849.

Legacy to debtor, right of set-off, see "Wills,"
Setting off judgments, power of justice, see
"Justices of the Peace."

Contracts.

3. A parol contract of a school district may
be proven though the minutes of the school
board contain no reference to it.-Sidney School
Furniture Co. v. School Dist. of Warsaw Tp.,
(Pa. Sup.) 27 A. 856.

· With teacher.

4. Section 44 of the school law (Revision,
p. 1077) provides that, in every contract be-
tween a school teacher and the board of trus-
tees, a school month shall be construed to be
20 school days, or 4 weeks of 5 school days
each, and any contract made in violation of
this section shall have no effect as against the
teacher. Held, in an action by a teacher who
had been paid by the calendar month, that he
could not recover an alleged balance of salary
without proof as to how many "school months"
there actually were during his service.-Stein-
son v. Trustees of School Dist. No. 8, (N. J.
Err. & App.) 27 A. 923.

Rescission by school board.

When allowable.

1. Though Rev. St. c. 82, § 130, allows the
assignee of an account to sue thereon in his
own name, one summoned as trustee cannot
deduct by way of set-off from the sum owing
by him to the principal defendant an account
which another person has assigned to him
against such defendant, unless after such as-
signment the principal defendant was notified
of the assignment and agreed to pay the account
to him.-Soule v. Kennebec Maine Ice Co., 27
A. 92, 85 Me. 166.

Pleading set-off in reply.

2. Plaintiff in assumpsit cannot, in a repli-
cation to a plea of set-off, set off other claims
against defendant, which should properly have
been set up in the declaration.-Heath v. Doyle,
(R. I.) 27 A. 333.

[blocks in formation]

Severable Contracts.

5. To show rescission by a school district
of a written contract in pursuance of a contem-
poraneous parol contract, a resolution of the See "Contracts," 4; "Sale," 1.
school board, on which notice of rescission was
given, is admissible, it being no objection there-
to that the other party to the contract was not
present at the passing of the resolution.-Sidney Rule in, see "Wills," 23.
School Furniture Co. v. School Dist. of Warsaw
Tp., (P'a. Sup.) 27 A. 856.

6. The school board having passed a resolu-
tion for rescission of the contract, the president
of the board did not need a special authoriza-
tion to notify the other party thereof.-Sidney
School Furniture Co. v. School Dist. of Warsaw
Tp., (Pa. Sup.) 27 A. 856.

[blocks in formation]

Shelley's Case.

SHERIFFS AND CONSTABLES.
Liability, see "Trespass," 6.
Liabilities.

1. Purd. Dig. p. 322, pl. 38, provides that
no action shall lie against a constable for any-
thing done in obedience to any warrant issued
by a justice until demand has been made, or
left at his usual place of abode, for a perusal
and copy of such warrant, duly certified under
his hand, and the same has been neglected for
six days thereafter. Held that, where a levy
and sale are made by a constable under execu-
tion issued by one authorized to issue such
writs, failure by defendant in execution to
make such a demand is a bar to a recovery
from such constable and his surety of damages

from such levy and execution.-Commonwealth | ing lots; these not showing clearly an absence
v. Warfel, (Pa. Sup.) 27 A. 763.
of redress at law.-Gove v. City of Biddeford,
27 A. 264, 85 Me. 393.
Contracts enforceable.

2. Where, after service of a writ, the offi-
cer delivers it to plaintiff's attorney without
making formal return, the officer may, in an ac-
tion by plaintiff against him for damages, show
by oral testimony that he complied with the di-
rections of plaintiff's attorney as to service.
Morgan v. Joyce, (N. H.) 27 A. 225.

3. A peremptory order to a sheriff, with
out notice of a hearing thereon, to pay the pro-
ceeds from a sale under execution into court,
will be set aside.-Dewoody v. Dewoody, (Pa.
Sup.) 27 A. 667; Appeal of Ray, Id.

SHIPPING.

See, also, "Marine Insurance."
Seaworthiness.

1. In an action involving the seaworthiness
of a vessel when she started on a voyage, the
certificate of classification showing that she
had been classed as A No. 1, when built, for a
period of seven years, and that such period
had not expired when the voyage commenced.
is admissible in evidence.-Broadnax v. Cheraw
& S. R. Co., (Pa. Sup.) 27 A. 412.
General average bond-Defense of un-
seaworthiness.

2. In an action on a general average bond.
where the issue is as to the seaworthiness of
the vessel when she started on her voyage,
and the testimony is conflicting, it is proper to
refuse to charge that though there may be a
prima facie presumption of unseaworthiness,
and the burden on defendant to prove the con-
trary, yet, "where it appears from the undis-
puted evidence in the case that the vessel
sprung a leak or became damaged under cir-
cumstances which would not cause such re-
sults to an ordinary seaworthy vessel," the bur-
den of proof is placed on the vessel owners to
show that she was seaworthy. Broadnax v.
Cheraw & S. R. Co., (Pa. Sup.) 27 A. 412.

3. In an action on a general average bond,
where the issue is as to the seaworthiness of
the vessel when she started on her voyage,
while the burden of proving unseaworthiness at
the commencement of the vessel's voyage is on
defendants, who assert it as a defense, yet if it
is shown that, shortly after the commencement
of the voyage, the vessel, without encountering
any stress of weather or any unusual perils of
the sea, became so leaky as to be obliged to
put into a port of refuge for repairs, the pre-
sumption then is that she was unseaworthy
when she sailed, and the burden of proving the
contrary is then on plaintiffs. Broadnax v.
Cheraw & S. R. Co., (Pa. Sup.) 27 A. 412.

Slander.

See "Libel and Slander."

Societies.

-

See "Benevolent Societies;" "Corporations;"
"Religious Societies."

See "Judge."

Special Judge.

Special Laws.

See "Constitutional Law," 6, 7.

SPECIFIC PERFORMANCE.
Adequate remedy at law.

land belonging to his wife for land of defend-
2. Where a husband agrees to exchange
ant, and the title to the land which the husband
agreed to convey is still in the wife when the
husband sues for specific performance, no de-
cree can be made in his favor, since there is
Ten Eyck v. Manning, (N. J. Ch.) 27 A. 900.
a lack of mutuality of obligation and remedy.-

3. An agreement for the sale of a "lot ad-
joining Pavonia Yacht Club, on Bay View
avenue," is sufficiently definite to be enforced,
if it is shown that the vendor owned only one lot
answering to such description.-Champion v.
Genin, (N. J. Ch.) 27 A. 817.

4. When a son renting a farm from his fa-
ther has been induced by the father's promise
to convey or devise him the farm to make ex-
pensive and permanent improvements on it,
such as a mere tenant would not make by way
of repairs, the father having full knowledge of
said improvements, specific performance can be
enforced by the son's widow and daughter
against the father's devisees.-Young v. Young,
(N. J. Ch.) 27 A. 627.

5. Defendant, who owned a patent for a
cooking utensil, together with complainants, R.
facture of household furnishings, and assigned
and S., organized a company for the manu
the company his patent, each of them sub-
scribing for a certain amount of capital stock.
The company became insolvent, and a reor
ganization was had, under which S. paid out
$55,000 in liquidation of debts, relieving de-
for, and S. thereby became owner of all the
fendant and R. of all personal liability there-
capital stock, one-fourth of which he trans-
ferred to defendant. S. testified that defend-
ant agreed to develop as many specialties as
possible, and to assign to the company all pat-
organization, defendant agreed that any patents
ents therefor. R. testified that, on the first
which he might invent in the line of kitchen
utensils should "go to the company." Defend-
ant testified that the original agreement contem-
plated only the patent originally assigned; that
a subsequent patent he assigned the company
was assigned only because it was a modifica-
tion of the first. Held insufficient evidence to
warrant a decree compelling defendant to as-
sign the company other patents granted him
subsequent to the organization of the com-
pany.-Eustis Manuf'g Co. v. Eustis, (N. J.
Ch.) 27 A. 439.

Performance by complainant.

6. Where certain persons contract to sell
land to another, who agrees to take it. and pay
the consideration on the delivery of a proper
deed, and he demands a conveyance of more
land than in equity he is entitled to, and re-
fuses to pay the consideration unless his de
mand is complied with, and after such refusal
the land is conveyed to another, who has full
knowledge of the facts, the party making the
demand cannot thereafter claim specific per-

formance of the contract, but will be left to
his remedy at law.-Pyatt v. Lyons, (N. J.
Err. & App.) 27 A. 934.

Spirituous Liquors.

See "Intoxicating Liquors."

STARE DECISIS.

Taxation of corporations.

The question as to the constitutionality
of Act June 1, 1889, (P. L. p. 429,) relating to
1. A city's contract with the landowner to taxation of corporations, which makes the cap
extend or construct a sewer through his land ital stock of corporations a distinct class of in-
cannot be specifically enforced on mere alle vestments for the purpose of taxation, and ex-
gations that the land is damaged, and that empts corporations organized exclusively for
plaintiff is prevented from using it for build-manufacturing purposes from taxation on their

capital stock, is stare decisis. Commonwealth | money raised for such tax, but paid by the
v. National Oil Co., (Pa. Sup.) 27 A. 374; Same
v. Mill Creek Coal Co., Id. 375.

STATE LEGISLATURE.

Controversy as to election of members of legis-
lature, see "Constitutional Law," 4.
Election of members, see "Elections and Vot-
ers," 7-9.

county treasurer to the state, with direction
that it be applied on an account for which the
County was not liable, and in fact so applied.
is held by the state as trustee for the county,
cannot be considered, as it raises an independ-
ent cause of action against the state.-Common-
wealth v. Philadelphia County, (Pa. Sup.) 27

A. 546.

Statute of Frauds.

jurisdiction of courts. see "Mandamus," 1.
Filling vacancies, see "Elections and Voters," See "Frauds, Statute of."
1, 2.
Submission of questions to courts by governor
or legislature, see "Courts," 1, 2.
Failure to elect members

cancy.

Statute of Limitations.

Filling va- See "Limitation of Actions."

1. Under Const. art. S, § 1, providing that
senators and representatives shall hold office
"until others are legally chosen and duly qual-
ified to fill their places," a failure to elect with-
in seven days from the first town meeting, as
required by section 5, does not, when there is
an incumbent to continue to hold the office,
create a vacancy, within the meaning of Pub.
St. c. 10, § 27, providing that when, in case of
a failure to elect, the office shall become va-
cant, the town clerk shall issue his warrant
for an election to fill such vacancy.-State v.
Perry, (R. I.) 27 A. 606.

Power of adjournment.

2. Under Const. art. 4, § 9, providing that
neither house shall, during a session, without
the consent of the other, adjourn for more than
two days, nor to any other place, and the
clause requiring the two houses at the May
session to meet in grand committee, and count
the votes cast for general officers at the April
election, the senate has the power to adjourn
for more than two days, and to another place,
on the same ground on which it has refused
to join the house in grand committee, viz. that
the house has unseated certain of its mem-
bers, and seated a person not elected, in viola-
tion of law, and in defiance of the constitu-
tion." since the constitution entitles each town
to full representation. In re Legislative Ad-
journment, (R. I.) 27 A. 324.

By governor.

3. Under Const. art. 7, § 6, providing that,
in case of disagreement between the two
houses certified to him by either, the governor
may adjourn them to such time and place as
he may think proper, the question whether an
adjournment of one house, before meeting in
grand committee to canvass the votes for the
general officers, not acted on in the other
house, and certified by the former as a dis-
agreement, warrants the governor in adjourn-
ing the assembly, is for the governor alone to
decide, and the judges of the supreme court
cannot review his decision. In re Legislative
Adjournment, (R. I.) 27 A. 324.

STATES AND STATE OFFI-
CERS.

Adjournment of legislature by governor, see
"State Legislature," 3.
Jurisdiction to grant pardon, see "Pardon."
Liability for expenses connected with adminis-
tration of justice, see "Counties."
Negligence of officers in collecting taxes, effect
on rights of state, see "Taxation," 7-9.
Actions.

In an action on the account of the state
against a county for taxes on personal proper-
ty, settled by the auditor general, under au-
thority of Act March 30, 1811, a claim that

STATUTES.

Retrospective effect of constitutional amend-
ment, see "Constitutional Law," 3.
When deemed mandatory, see "Elections and
Voters," 3.

Enactment and approval.

1. The court will not go behind a law to
see whether Const. art. 3, § 8, requiring notice
of proposed legislation to be published 30 days
before introduction of the bill, was complied
with, but will presume such compliance.-Per-
kins v. City of Philadelphia, (Pa. Sup.) 27 A.
356.

Amendment.

2. Act May 18, 1887, (P. L. 118,) relating
to the liens of mechanics and others on build-
ings, purports to amend, so as to require notice
of lien to be given to the owner, and extend
to the entire commonwealth, the provisions of
Act May 1, 1861, which limits to certain coun-
ties the provisions of Act June 16, 1836, relat-
ing to the same subject. In the body of the act
the title of the act of 1836 is quoted, and so
much of the act of 1861 as is intended to be
amended and extended is republished, but the
act of 1861 is only referred to by reference to
Act 1836, "and the several supplements to the
said act.' Held, that the act is valid, as its
enactment is in substantial compliance with
Const. art. 3, § 6, requiring that so much of a
law as is "revived, amended, extended or con-
ferred shall be re-enacted and published at
length."-Purvis v. Ross, (Pa. Sup.) 27 A. 882-
Titles of acts-Plurality of subjects.

3. Under Const. art. 3, § 3, providing that
no act shall be passed containing more than
one subject, which shall be clearly expressed
in its title, the provision of Act May 24, 1893,
entitled "An act to abolish the commissioners
of public buildings and to place all public build-
ings heretofore under the control of such com-
missioners under the control of the depart-
ment of public works in cities of the first class,"
providing for the repeal of Act Aug. 5. 1870,
cannot stand. McCollum, Mitchell, and Thomp-
son, JJ., dissenting. Perkins v. City of Phil-
adelphia, (Pa. Sup.) 27 A. 356.
Repeal.

4. Act approved April 2, 1891, entitled
"An act for the formation and government of
boroughs," does not repeal by implication act
approved April 5, 1878, entitled "An act for
the formation of borough governments," and
the supplements thereto, since the act of 1878
is evidently designed for a more permanent
community, of larger area, and larger perma-
nent population, while the act of 1891 applies,
by its very terms, to a population of an itiner-
ant and fluctuating character.-State v. Clarke,
(N. J. Sup.) 27 A. 924.

1192

[blocks in formation]
[blocks in formation]

See "Animals."

Stock.

Corporate stock, see "Corporations," 10, 11.

Streams.

See "Waters and Water Courses."

Streets.

See "Highways;" "Municipal Corporations."

SUBROGATION.

When allowed.
1. Where a corporation assigns book ac-
counts to its president to indemnify him as in-
dorser of its notes, a receiver of the corpora-
tion, thereafter appointed, on paying a note so
indorsed, is not entitled to subrogation to the
benefit of the indemnity given to the president,
and therefore the receiver will not be compelled
to pay such note in preference to other claims.
-Whitehead v. Hamilton Rubber Co., (N. J.
Ch.) 27 A. 897.

2. A purchaser of property of a firm, one
of the members of which had died, agreed to
assume the firm debts. The wife of the de-
ceased member held a note against the firm,
which had apparently been paid; but she
claimed that it had not, and insisted on its
payment, in addition to what would otherwise
have been her share of the purchase money,
which was finally done. After the negotia-
tions were closed, it was discovered that the
deceased partner, instead of applying money
drawn out of the firm to the payment of the
note, as the books showed, had appropriated it
to his own use. Held, that he must be regard-
ed as a debtor to the firm, to the amount so
misappropriated by him, and the purchaser,
having succeeded to all the rights of the firm,
could enforce the claim against his estate.
In re Miller's Estate, (Pa. Sup.) 27 A. 698;
Appeal of Miller, Id.

To rights of mortgagee.

3. Where a mortgage is given on land
owned in common by husband and wife to se-
cure a debt of the husband, a purchaser of the
husband's interest in the land, who pays off
the mortgage debt, is not entitled to be subro-
gated to the mortgagee's rights as against the
wife's interest in the land, since she was only
surety for her husband, and was as effectually
released by the payment of the debt by the pur-
chaser as if her husband, the principal debtor,
had paid it.-Zeller v. Henry, (Pa. Sup.) 27 A.
559.

To rights of judgment creditors.

4. A note on which judgment was rendered
against A. & L. was executed by them, while
partners, to secure a joint debt. After the
judgment they dissolved partnership; A. paying
off an individual obligation of L., who, in con-
sideration, agreed to pay such judgment. There-

after, property of A. was levied upon, and the
amount of the judgment collected therefrom.
Held, that A. was entitled to be subrogated to
the rights of the judgment creditor against L.-
Gilfillan v. Dewoody, (Pa. Sup.) 27 A. 782.

5. Act April 22, 1856, § 9, provides that
when the land of several persons is subject to
the lien of a judgment in which one should have
subrogation against another, one having such
right may obtain a rule on the plaintiff, on pay-
ment of the judgment, to assign it for such
uses as the court may direct; and the court
may direct to what uses it shall be assigned,
and, when assigned, direct all executions there-
upon, so as to subserve the rights and equities
of all parties whose land is subject thereto.
Appellees, grantees of oil leases from appel-
lant, obtained an assignment of certain prior
judgments against appellant under the above
act. Held, that the court properly awarded
them a writ of vend. ex. on said land, subject
to their own leaseholds.-Porter v. Vanderlin,
(Pa. Sup.) 27 A. 872.

See "Writs."

Summons.

Supplementary Proceedings.
See "Execution," 10.

SURFACE WATER.

Change of drain by borough.

1. In an action against a borough for
changing a drain, thereby causing the flow of
surface water on plaintiff's land to be in-
creased, defendant could show that less surface
water flowed through the ditch after than be-
fore the change made by the borough.-Fred-
erick v. Borough of Lansdale, (Pa. Sup.) 27 A.
563.

Liability of railroad company.

2. In an action against a railroad company
for damages to plaintiff's property from an
overflow of surface water from ditches and
drains on defendant's road, there being evi-
dence that they were in good condition; that a
storm during the night caused a cave-in, filling
one of them up; and that it was the heaviest
fall of rain ever known by persons who had
lived in the vicinity for many years, the rain all
falling within five hours,-the question of
whether the damage was caused by the act of
God was properly left to the jury.-Sentman v.
Baltimore & O. R. Co., (Md.) 27 A. 1074.

[blocks in formation]
« ÀÌÀü°è¼Ó »