cemetery of Philadelphia, passed the 12th of March, 1849 (P. Laws, 157), an exactly similar provision is made.
Upon the map of the city published in 1855, by Scott & Moore, the avenues in the cemetery correspond with Fifteenth, Sixteenth, and Norris streets, and it is conceded no deceased human bodies have ever been buried therein.
On the 6th of May, 1872, the legislature passed "An act to authorize the opening and paving of certain portions of Fifteenth, Sixteenth, and Norris streets," which the Court of Common Pleas held to be unconstitutional because its title does not clearly express the subject which the said act was intended to cover. These streets passing through Monument cemetery had been laid out and adjudged, and taken to be public highways forever by the proper tribunal, but had never been opened, and of course had never been paved. The object of the act was, therefore, to open these portions of those streets and to pave them, all of which is distinctly and clearly expressed in the title. Every manager and member of the cemetery knew the location of these streets, Fifteenth and Sixteenth being north and south streets, and Norris street being an east and west street, and crossing the two former, and the title therefore gave them ample notice of the body of the act. No complaint is made of want of notice, and in fact they had actual notice of its pendency before the legislature. There was no concealment of the purpose, which was to open three great public thoroughfares west of Broad street, called for, for the improvement of the neighborhood and the convenience of the public. The cemetery was no longer beyond the thickly populated parts of the city and districts, as described in the second section of the charter thirty-five years ago, but had become a serious obstacle to the flow of population in north Broad street and vicinity.
We are therefore of opinion that this objection is not sustained, and that the act is constitutional. It is made the duty of the chief commissioner of highways within sixty days to cause said streets to be opened and paved, and "on assessing damages for said opening, the cost of a suitable enclosure of said cemetery ground on said street shall be allowed."
It is entirely immaterial whether the third section of the act of 1849 is repealed or not, for the ground is taken by the right of eminent domain vested in the commonwealth, and just compensation is provided by the existing law and by the act itself.
The judgment is reversed and procedendo awarded.
For opinion of court below, see 29 Leg. Intell. 404.
David W. Sellers, Esq., and Hon. F. Carroll Brewster, for the commonwealth.
Robert N. Willson, Esq., for the defendant.
George Junkin and Charles Gilpin, Esqs., for the cemetery company.
ACCOUNT RENDER. See DOWER, 1, 2, 3.
ACCUMULATIONS. See HUSBAND AND WIFE, 8, 9, 10, 11, 12.
Debt lies on a policy of insurance not under seal. Miller vs. Ins. Co., 551. ACTS OF ASSEMBLY.
ALDERMAN. Techner vs. Kurpeles, 169. DOMICILE. Will of E. S. Hurberger, 368. ISSUE. Will of Wm. M. King, 379. CONVERSION. Squire's Estate, 304. LEGACY. Estate of Robert Gray, 372. LEGACY. Estate of Park Hill Cassady, 383. MECHANICS' CLAIMS. Stevenson vs. Dick, 132. EXECUTION. Saving Fund vs. Thompson, 511. REVIEW. Estate of P. Duffy, 216. REVIEW. Estate of Bridget D. Costigan, 264. REVIEW. Estate of Elizabeth H. Hattrick, 275. Commonwealth vs. Sheriff, 446. RAILWAYS. French vs. Railroad Co., 187. EXEMPTION. Snow vs. Dill, 138. LICENSES. Laffer's Appeal, 499.
PORT WARDENS. In re Port Wardens' Line, 453. EXEMPTION. Estate of John R. Steel, 398.
DECEDENTS' ESTATES. Estate of Thomus Wistar, 293. DECEDENTS' ESTATES. Estate of Thomas Potter, 293. ACCUMULATIONS. Estate of Rost Williams, 325. WAGES. Estate of Abdiel F. Gitt, 494.
CRIMINAL LAW. Commonwealth vs. Cullen, 442. CORPORATIONS. Kemble vs. Railroad Co., 469. ELECTIONS. In re Robert Wier, 579.
RAILWAYS. French vs. Railroad Co., 187.
EQUITY. Campbell vs. Knowles, 163.
DESERTION. Adleman vs. Steel, 529.
DECEDENTS' ESTATES. Estate of Catharine Terry, 298. DESERTION. Adleman vs. Steel, 529.
PORT. WARDENS. Cramp's Appeal, 16. CORPORATIONS. Association vs. Fenner, 107. ATTACHMENT. Buyersdorfer vs. Hart, 192. ATTACHMENT. Richards vs. Donaughey, 514. REFEREES. Adleman vs. Steel, 529.
MUNICIPAL CLAIMS. City vs. Donath, 4. REFEREES. Adleman vs. Steel, 529.
Estate of Abdiel F. Gitt, 494.
Shwartz vs. Bunks, 540.
Kindig vs. Atkinson, 542.
6. OPENING CERTAIN STREETS.
Association vs. Donohugh, 12. Commissioners vs. Bishop, 509. Adleman vs. Steel, 529.
ELECTIONS. In re John C. McManemin, 422.
23. MUNICIPAL CORPORATIONS. Phoenix vs. Reynolds, 522.
1. A schooner, while at anchor, with the proper lights up, was run into and sunk by a steamship. Held, that the steamship was liable for the loss. McCloskey vs. "Achilles," 463.
2. The measure of damage or value of the vessel is what price a prudent owner, wishing but not compelled to sell, would reasonably expect to get, within a reasonable time, at public or private sale, without forcing the sale, and using proper measures to avoid undue sacrifice. Id.
3. The United States District Court has jurisdiction in admiralty of a libel for damages for the death of the husband of libellant, who was chief mate, and whose death was the direct result of the negligence of the steamer in causing the collision. The "Tonawanda,” 464.
4. Although it is the duty of a vessel overtaking another to keep clear of the vessel ahead, the preceding vessel is not without correlative obligations; she is bound to maintain a proper lookout, and not to change her course unnecessarily. "Holgate" vs. "Illinois," 470.
5. A sailing vessel ahead has no right to change her course or alter her tack without reference to the position of a steamer or other overtaking vessel, so as to permit the risk of a collision; and will be liable for the consequences of a colli. sion occasioned by an attempt to cross the bows of the steamship under such cir- cumstances. Id.
1. An advancement being in its nature a gift, and not a debt, is exempt from interest. But where the distribution of the decedent's estate has been for any reason postponed beyond the ordinary period for settlement, the advancements being regarded as cash in the hands of the parties to whom they were made, will be chargeable with interest from the date at which distribution should have been effected. Est. of Thos. Thompson, 292.
2. Advancements bear interest from the date at which a settlement of the estate should have been had. Est. of Jacob L. Sharpe, 360.
AFFIDAVIT OF DEFENCE. See ATTACHMENT, 2.
1. In a suit on a coupon payable to bearer, copies of accompanying bonds are unnecessary to entitle plaintiff to judgment for want of an affidavit of defence. Copeland vs. Iron Co., 8.
2. A grant by a tenant of the remainder of his term, reserving rent, is such an instrument as suit may be brought upon, and an affidavit of detence required. Renkauff vs. Aronson, 87.
3. Defendant's affidavit of defence alleged that on the execution of a bond and warrant of attorney it was only to be entered up in Hunterdon county, New Jersey, and that it was signed upon the faith of that parol agreement made just before and as an inducement to its execution. Held, the case must go to a jury: Greenawalt vs. Kohne, 4 Norris, 369, followed. Baillie vs. Kessler, 94.
The authority of a person professing to act as agent for the park commission cannot be inferred from circumstances, as in the case of ordinary corporations. He must be appointed in accordance with the statute governing the commission. Clendenon vs. City, 54.
ALDERMAN. See EXECUTION, 4. JUDGMENT, 3, 4, 5, 6.
ALTERATION OF RECORDS.
See CRIMINAL LAW, 9, 10, 11. RECOGNIZANCE, 2.
AMENDMENT. See REVIEW, 8.
Amendment of declaration-New assignment of damage. Perot vs. Leeds, 185.
1. Bequest to A of "an annuity of $1,500 per annum from the date of my de cease, during all the period of her natural lite, to be paid by my wife out of the proceeds and profits of the business. In case, however, the said business should so depreciate as to produce less clear profit than $4,000 per annum, then the said annuity shall be reduced to the sum of $500." The annuitant dying before any payment became due, held that the annuity was not apportionable. Stewart vs. Swaim, 185.
2. The will of Christopher Mason, inter alia, provided as follows:-"South- wark property, income of $4,000, to Mary Sands, to remain on this property, and after her death to her children." Est, of John Hocker, 292.
3. Mary Sands survived Mason some forty-six years, and never collected said annuity. Id.
4. Upon the death of John Hocker, executor of Mason, one year later, the children of said Mary Sands claimed to recover the principal of said annuity from the estate of John Hocker. Id.
5. Held, That no duty concerning the annuity was imposed on the executors. Mary Sands had the right to collect the annuity individually and to enforce its payment according to law. Id.
6. That no personal liability of the executor, as trustee or otherwise, ever arose, nor was it ever contemplated by the testator. Id.
ARREST. See PRIVILEGE, 1, 2.
1. A voluntary assignee for benefit of creditors may maintain an action for proceeds of the assigned estate deposited in the assignor's name after the assign- ment without notice to the bank. Greene vs. Bank, 146.
2. An assignee for the benefit of creditors does not acquire any new right or title after the date of the assignment. Persch vs. Bank, 157.
3. The act of 22d of April, 1854, giving wages of labor not exceeding $100 a preference in assignments, is supplied by the act of 9th of April, 1872, only in the cases specified in the later act. Est. of Abdiel F. Gitt, 494.
4. Mechanics, farm and other manual laborers not engaged at works, mines, or manufactory, where clerks, miners, or mechanics are employed, are, in assign. ments, still protected by the former act. Id.
5. Prior to act 17th February, 1876, a sale of real estate by an assignee for creditors could only be made subject to encumbrances. Est. of Geo. W. Gump, 495. 6. Where, before that act, an assignee of encumbered property incurred ex penses in laying it out in lots and attempting sales which he did not succeed in making, and after the act, procured an order to sell divested of liens, he cannot charge the expenses to the fund as against lien creditors. Id.
7. The trust was to sell and not to retain and rent. Any judgment creditor might have sold on execution. So far as the assignee did receive rents, they may go to pay the expenses. Id.
8. Three per centum is the proper compensation for sale of real estate, unless there is extraordinary trouble. Id.
9. A sale of real estate by an assignee for the benefit of creditors under an order of court is in the nature of a judicial sale, and in distributing the proceeds interest must cease on the judgments from the confirmation of sale. Such sales are more analogous to those by administrators under an order of court than to sheriffs' sales, confirmation being required in the former case and not in the latter. John Strickler's Est., 504.
ATTACHMENT. See BANKRUPTCY, 1.
1. A writ of foreign attachment will lie against a foreign insurance company, as garnishee, doing business in this State. Darlington vs. Rogers, 102. 2. In a proceeding by attachment under the act of March 17, 1869, where the process has been served personally on the defendant, or where he has the action is not ended by a dissolution of the attachment, but proceeds as in cases commenced by a summons, and the plaintiff is entitled to judgment for want of appeared, an affidavit of defence, as in other cases within the affidavit of defence law. Bay- ersdorfer vs. Hart, 192.
EXECUTORS AND ADMINISTRATORS, 31.
3. Under the act of March 17, 1869, relative to fraudulent debtors, the affi- davit of a plaintiff, drawn in the words of the act, is sufficient to found the pro- ceedings. Richards vs. Donaughey, 514.
ATTORNEY-AT-LAW. See LIMITATIONS, 1.
1. When a member of the bar is guilty of a violation of his professional duty to his client, and a rule is consequently taken to show cause why his name should not be stricken from the roll, the court will not dismiss the case because the attorney has settled with his client, and she has signified a desire that the pro- ceedings against him should be discontinued. In re Samuel Davies, 65.
2. Statements made by a testator to counsel while consulting him with regard to the preparation of the will are confidential both before and after the client's death. Est. of Thos. R. Bennett, 331.
1. The finding of the auditing judge upon the question of the bona fides and sound discretion exercised by trustees is not to be disturbed, unless it be clearly made to appear from the evidence that he was in error. Est. of Mary E. Raw- lings, 337.
2. The finding of the auditing judge has the weight of a verdict. Est. of Chas. McNabb, 364.
3. The rule that an application for the appointment of an auditor must be in writing, cannot be invoked by one who was present at the time of the appoint- ment and concurred therein. Est. of Henry Bentley, 390.
A bailee of stock who has pledged the same cannot recover an excess over the debt due, realized by the holder of the collateral by a suit against the stock com- pany for a refusal to transfer, when the principal or real owner of the stock gave the notice which occasioned the refusal. Persch vs. Bank, 157.
See DEBTOR AND CREDITOR, 2. WITNESS, 1. CORPORATIONS, 12, 13, 14, 15, 16. A creditor who has obtained judgment in a State court after the defendant has filed a petition in bankruptcy, is not entitled to judgment against a garnishee while the bankruptcy proceedings are pending. Milne vs. Bucknor, 33.
BILLS AND NOTES. See NOTARY PUBLIC, 1, 2. SURETY, 2.
1. In a suit by the payee of a promissory note, the maker will not be allowed to show a contemporaneous parol agreement between them that it was to be pay- able only upon a certain contingency, and that the maker was not to be in any way liable. Rodgers vs. Donovan, 51.
2. A promissory note which has been given in the place of a former one, with an extension of time and the release of an indorser, cannot be defended against on the ground of want of consideration in the original. Gatzmer vs. Peirce, 88. 3. The holder of a promissory note who has been induced by fraud to exchange it for another that has been rendered invalid by an alteration, may sue the maker upon the original, if he would not be injured thereby. Martin vs. Smith, 103. 4. It is an essential feature of a negotiable note that it should be "simple, cer- tain, unconditional; not subject to any contingency," Farquhar ys, Trust Co., 473.
5. Where a note contained a provision for the additional payment of “all taxes and charges in the nature thereof that may be levied upon this note or upon the indenture of mortgage accompanying it, or the principal or interest money thereby secured, immediately upon their assessment:" Held, that the amount of the addition being determinable only by extrinsic evidence, the note did not possess the character of negotiable paper. Id.
BOARD OF HEALTH. See CONTRACTS, 2.
BOARDING HOUSES.
A boarding-house keeper does not forfeit his bill under a special contract for board, when the only defence to payment is the non-compliance with a law requiring a statement of the rates of charges to be posted in the bed-rooms. Whalley vs. Toddington, 2.
1. A private arrangement between the parties to a bond, that it is "given as a mere matter of form," is not a good defence where third parties are interested. Insurance Co. vs. Strahl, 512.
2. Where a bond has been given for money due for subscription to the capital stock of a corporation, a court cannot stay its collection merely because it is not
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