Page images

In an



Page. Subject.

Page. BET.

ing a corporation, it was incumbent See Wager.

upon defendant to name the person

acting for plaintiff and stating BENEFICIAL INSURANCE.

precisely the circumstances under See Insurance,

which the knowledge by plaintiff was acquired

746 BIDS.

The holder of a collateral note is not See Contracts.

required to give notice to the cor

poration of the sale and purchase BILLS AND NOTES.

of shares of capital stock upon deSee also Assumpsit, Banks and Bank

fault and upon presentation of the certificate in



is ening. Checks, Judgments.

titled to a new certificate and to action on a promissory note notwithstanding the fact

all the rights of a stockholder.... 783

that the holder shows that he is a holder in due

BINDING INSTRUCTIONS. course and no evidence is present to show

See Assumpsit; Negligence; Trespass; to the contrary,

Trial. yet it is a question of fact, and in the establishing of the same, the credibility of

BIRDS. the witnesses is question for the jury to determine,

See Game. and the court cannot give binding instructions in favor of the plain



See Health. In an action on a promissory note, BONDS. where a copy of the note was in

See Replevin; Principal and Surety. corporated in plaintiffs' statement, it Was not necessary under the Practice Act of 1915 to aver specifi

BONUS. cally that the

See Assumpsit; Contracts. contract sued upon Tas oral or written, A promissory BOROUGHS. note implies a writing and statutory

See also Municipalities; Viewers. demurrer overruled


Where a borough, following the BorAn accommodation endorser


ough Code of May 14th, 1915, P. L. promissory, who paid the note after

312, in Chap. VI, Art. XX, Sec. $, its dishonor, cannot maintain joint action against the other par

empowering boroughs to "enact ordities to

nances establishing reasonable rates the note, neither can he

of license fees on all vehicles used maintain a joint action against an individual and

in carrying persons or property for an executor or

a deceased endorser,

pay," enacts an ordinance imposing nor can a dis

a schedule of annual licenses, such solved partnership be joined as a party defendant. Demurrer to state

ordinance is invalid as applied to

the sustained

owner of an automobile truck ment

171 An accommodation maker of a prom

used by a baker in delivering his issory note is liable thereon to an

products without first obtaining a accommodation endorser of


license. Reading City V Krause's

Estate, 167 Pa., 21, construed..... 223 payee who becomes the holder of the note in due course.


A borough was not required to remove An affidavit of defense to an action

a sewer or to change its location so on a promissory note was insuffi

as to prevent plaintiff's land from cient to prevent judgment where it

being damaged by surface water, Was averred that the note men

and bill dismissed where the sewer tioned in the agreement could be

Was constructed under an agreerenewed at maturity and "at said

ment with the former owner of the time and many times thereafter the

land, and so far as appeared, in plaintiff agreed with defendant that

the manner agreed upon between the in consideration the said de

defendant and

that owner. The fendant devoting his time, energies

defendant had a right to maintain and money in perfecting the said

its sewer. machines and advancing the inter

Boards of health of boroughs and firstests of the said corporation in

class townships have no power to which the plaintiff held stock, the

arrest those violating their rules said plaintiff agreed to renew said

and regulations and have them note from time to time until such

punished by fine and imprisonment, time as the defendant would be able

unless such rules and regulations place the machines upon the

are duly enacted into ordinances market and the said corporation

and advertised and promulgated the would begin to show profits from

saine as other ordinances relating the sale of the said machines," but

to other subjects are approved and it was not averred that defendant


480 had

requested a renewal and he could not now defend against a re

A board of health in a borough or quest for

first-class township inay abate conpayment.. The effect of deriving title through a

ditions declared to be nuisances by holder of a promissory note before

regulations of the State Department or after maturity in due course, is

of Health and recover the cost of to make the indorsee holder in

such abatement from the owner of due course, the latter taking the

the premises in the manner proplace of the former and being en

vided by Section 8 of the Act of titled to the rights of the indorser,

June 12, 1913, P. L. 471.

665 Upon this theory there is no con

BOUNTIES. flict between Sections 58 and 28 of the Act of May 16, 1901, P. L. 199,

See also Game. and both may be given the effect

Unclaimed weasel skins, or pelts, left intended by the Legislature


in the hands of the Game Commis. An affidavit of defense in an action

sion, under the Act of May 23, 1919, on a bill of exchange

P. L. 270, become the property of

was in sufficient to prevent judgment

the State Game Commission after undler the Negotiable Instrument

the bounty has been paid. The Act of 1901 in simply averring

owner has a right to direct where that "plaintiff knew" and had "full

they should be sent and they belong knowledge

of all the

to the commission only when the facts, etc.," in that plaintiff, be

owner fails to claim them......... 616



.. 526





Page. Subject.


BUILDING AND LOAN ASSOCIATIONS. A sales agent, who could not have

Building and Loan Associations have maintained an action in his own

the right to charge a premium on name, was held not liable for the

loans with the stock of the associamercantile license tax as a broker,

tion as collateral, provided the where the agreement with the seller

loans are made to the stockholders granted a sole and exclusive agency

bidding the highest premium therefor the sale of all coal produced

for at an open meeting of the as

sociation, in accordance with and fixed his compensation, but the

the seller not only fixed the price, but

provisions of the Act of April 29, 1874, P. L. 96, Section 37.

84 consigned the coal directly to the

The cashier of a State bank, incorpurchaser. He had nothing to do with fixing the selling price nor was

porated under the Act of May 13, the title of the coal ever vested in

1876, can, at the same time, hold

the office of secretary of a buildhim. His liability was not primary

ing and loan association

239 but secondary

139 Where plaintiffs were not the sole ef BULK SALES. ficient cause in making a sale, a ver

Where a sale of merchandise, fixtures, dict was directed for the defendant

etc., is made in bulk, without noin an action to recover a commis

tice to creditors as required by Act sion on the sale of a steam shovel. 287

of March 28, 1905, P. L. 62, the

proper A real estate dealer who has received

procedure to determine the money from purchaser on sale of

question of the creditors' rights is

by writ of attachment under Act of real estate can not set off a debt

March 17, 1869, P. L. 9. and its due him in a matter not arising


336 out of his agency.



See Evidence. An injunction applied for by a prop

erty owner to restrain the erection BURIAL. and maintenance of a frame build

If there be no surviving husband or ing was refused where a special

widow, the right of burial is in the permit had been granted defendant

next of kin in the order of their reby council after a building permit

lationship to the decedent, as had been refused by the borough

children of

proper age, parents, officer entrusted with the issuing

brother and sisters or more remote of permits, because it did not com

kin, modified by circumstances of ply with a borough ordinance, and,

special intimacy or association with further, where it did not


the deceased, a more distant rethat the erection of the struc

lative, or even friend not conture would increase the fire hazard

nected by ties of blood, having at on plaintiff's property


times, under exceptional circumA city ordinance defining the powers

stances, superior right to one and duties of

342 the Department of

nearer of kin Public Safety and Bureau of Building Inspection therein, which em

BY-LAWS. powers and directs the department

See Appeals; Corporations; Insurance. and the bureau to inspect, regulate, supervise and control the construc

C. tion and alteration of buildings and to issue permits in

respect thereto as therein, or thereafter, by

CANCELLATION. ordinance prescribed, and makes it

See Deeds and Mortgages; Equity. the duty of the bureau to examine and pass upon all applications for

CAPITAL STOCK. permits for the construction, altera

See Corporations; Equity; Stockholdtion, repair, use and occupancy of

ers. buildings; approve or disapprove same and issue or refuse to issue CARRIERS. any and all permits, is a restric

See also Assumpsit; Interstate Comtion upon the use of real property

merce. and must be strictly construed.... 529 A stipulation in a bill of lading issued

by the initial carrier of goods for BUILDING RESTRICTIONS.

interstate shipment limiting liabiliSee also Equity; Injunction.

ty for loss to cases in which claim

was made in writing within a speciA preliminary injunction was granted

fied time, is a reasonable provision, where it was clear that defendant

and must be complied with in order was constructing a porch in front

to recover for loss of the goods in of his house in violation of a


446 building restriction. The decree

Defendant railroad was liable in an prohibiting the erection of the

action brought to recover the fair porch was so drawn as to permit

market value of twenty-eight crates the erection to continue in compli

of blackboards, to be shipped by the ance with the restriction, leaving

defendant as initial carrier to the the question to whether the

plaintiff, where the consignor noticonstruction was in compliance

fied defendant at what place the with the restriction to be deter

merchandise was to be found, and mined on final hearing


it was no defense that the goods The remodeling of a stable or garage

had been placed in a car or on a into a duplex dwelling house of four

siding connected with another railor five rooms and a bath each was

way. Having accepted


shiprestrained as a violation of a build

ment, defendant was lia ble when ing restriction which provided "nor

it failed to deliver.

462 shall any double houses or apartment houses or any other sort or CEMETERY. kind of dwellings except single

A decedent left a widow and one dwelling houses be erected." The

child, father and mother, and express prohibition against a double

brothers and sisters. Upon his (duplex) house or apartment house

death one of his brothers, without was not modified by the words of

the approval or consent of the the exception

surviving widow, but contrary




Page. Subject.

Page. her wishes, and against her pro

A corporation chartered for charitable tests, caused the body of the de

purposes, having limitation on its ceased to be buried in a lot be

land holdings, and its land used for longing to his brothers. The surviv

farming purposes, for crops to be ing widow purchased a lot in an

consumed, on the place, is not liable other cemetery nearer her nome

for negligence of its employes in where she desired to have the re

setting fire to timber on adjacent mains of her husband buried. The

land. Case distinguished from Windeceased and his wife had lived

nemore v Philadelphia, 18 Superior, happily together throughout their

625, where defendant was operating married life, and were so living at

an office building for profit apart the time of his death. Prior to his

from the main institution...

151 decease they had discussed the

A beneficial society which is to have matter of death and burial, and

subordinate lodges, must be granted had agreed between themselves that

a charter under the Act of April if the wife died first her husband

6, 1893, P. L. 10, not under the Corshould bury her wherever he chose,

poration Act of 1874..

471 and if the husband died first his

Under the Act of June 13, 1911, P. L. wife should bury him at whatever

898. exempting from taxation "all place she might select. No reason

churches, meeting-houses or other was shown for the refusal of the

regular places of stated worship brothers of the deceased to permit

and all grounds thereto annexed the surviving widow to remove the

necessary for the occupancy and enbotiy of her husband to the place

joyment of


same, etc.. the selected by her for his last resting

boarding-hall of an associa ior inplace, except the mere arbitrary

corporated for the purpose of holdpreference of his brothers that his

ing annual evangelistical meetings, body remain where already buried.

used by the association to furnish Held: That the surviving widow

accommodations at cost

for perhad a right to remove the body of

sons from a distance attending its her husband to the

lot pur-

religious meetings, and forming an chased by her in which to bury

integral of its property, is exempt him

from taxation


Where real estate was granted and CERTIORARI.

conveyed to a person in charge of See also Courts; Judgments; Mag

a charitable institution managed by istrates.

a religious order and for its use Where, pending an appeal from

and the religious order later retired judgment of a Justice of the Peace,

as managers, the institution being tho defendant also sues out a writ

continued as an unincorporated of certiorari, on motion the writ

charitable organization, it was held of certiorari will be quashed. De

equity had jurisdiction but would fendant is not entitled to both an

determine the rights of the parties appeal and a certiorari


only after final hearing. Demurrer If judgment be recovered before a

was not the proper method for dismagistrate without service of the

posing of questions raised

493 summons or notice of any kind that

A devise to a church for a religious suit had been entered, the Act of

use is not void where the church is March 30, 1810. does not deprive the

merged with another, under a difdefendant of the right to a writ of

erent name, the new organization certiorari after twenty days from

containing the members of the the date of judgment. But to ob

former congregations and the same tain relief the writ must issue

character of religious work being within twenty days after notice of

continued in the same community. 74 1 the judgment, otherwise defendant cannot get relief because of his own

CHARTERS. laches On certiorari, a judgment of a justice

See also Corporations. of the peace was a flirmed where

In considering the application of a plaintift sued to recover


proposed corporation, its name besuffered in repairing an automobile.



importance when This was an immediate and direct

such name is similar to that of 2 injury to property, and the justice

corporation already in being, and had jurisdiction


when such proposed corporation in

tends to engage On

in the same, or certiorari, a judgment entered

substantially the sa me,

business by a justice of the peace, was held

within the same locality as that valid where after summons and a

transacted by the one already in hearing and due proof judgment

existence, the corporate name is of was entered against a firm without

such importance as to constitute setting out names of the in

the sole ground for the refusal of a dividuals composing the


charter ship

48 575

In the incorporation of a society to On certiorari from the docket of a

be composed of inembers of a foreign Justice of the Peace, an attorney's

nationality, whose purpose, inter docket fee of $3.00 should be al

alia, is “to promote the interests of lowed where the court sustains the

its members by instructing them in judgment of he Justice 01 the

the principles of American citizen. Peace, for such action by the Court

ship and good government, and by is a final determination of the suit

proper educational means,

opand the judgment of the court.... 584 pose any radical agitation or prop

aganda among its members," the CHARGE OF COURT.

court will require the members to See New Trial.

take oath to be loyal and faithful

to the Government of the United CHARITIES.

States, to observe its constitution

and laws and the constitution and Where testatrix executed her will on

laws of the State of Pennsylvania, November 19, 1918, directing that

and to defend the United States the will be dated October 17, 1918,

against all enemies, foreign and dowhich was done and then died on

mestic, in addition to the proposed November 20 1918, the charitable

oath to be true and faithful to the bequests would be inoperative, the


76 will not having been executed

An application for a charter incorwithin 30 days of testatrix's death. 136 porating a state bank was refused





Page. check within

a reasonable time could not be raised on a statutory demurer. This with other reasons offered were matters to be determined at the trial



Page. where the advertisement named certain persons as the incorporators while the application in fact was made by other persons. This was misleading and did not comply with the law. A charter application for a state bank must be advertised three months

not three weeks.... 511 The legislature in authorizing the

formation of corporations to carry
on "any lawful business" did not
intend to include the professions, so
that a charter cannot be granted to
practice dentistry. The right

practice dentistry is in the nature
of a franchise or license, and cannot
be sold, assigned or inherited. It
is not a business open to all but a
personal right regulated by an act
of assembly

652 While there seems to be no objection

to the use of a family or historic
name as a part of a corporate name,
to incorporate a historic or other
revered name alone for purely com-
mercial reasons, is entirely different.
It fails to commend itself to one's
sense of propriety and offends
against good taste and sound public
policy. Application for charter for
a general or department store under
the name of "Ben Franklin, Inc.,'

704 An application for a charter and the

granting of letters patent under the
name of "Jacobs" is objectionable
and should be refused. The name
usurps the use of a family name,
does not indicate that it is a cor-
poration, nor does it possess any in-


Defendant was liable in damages for

injuries received by a minor under
18 years of age while operating a
crane used in raising, lowering and
transporting pipe, scrap and other
material, Such work was pro-
hibited by the Act of May 15, 1915,
P. L. 286. which declares that no ,
minor under 18 years of age shall be
employed or permitted to work in

operation or management of
hoisting machines

102 A girl residing in this Commonwealth,

who is now 16 years of age, while
working on her father's farm in the
hay field about four years ago had
her leg cut off by a mowing ma-
chine, is entitled to compensation
under the Rehabilitation Act of
July, 18, 1919, P. L. 1045..

832 Where employe, in an institution of

public charity, under age, seeks
compensation for injuries received
in the course of her employment,
referee deciding in her favor and
affirmation by compensation board,
and appeal on ground of unlawful
employment of minor. Held. That
employer being a charitable insti-
tution would be immune from action
for damages, leaving claimant with-
out adequate redress, and thus em-
ployer would be allowed to take ad-
of its

own wrong, and
finding of referee awarding dam-
ages affirmed



A rule to interplead was discharged

where the drawer of a check, upon

payment had been stopped
and after suit by a bank, the bona-
fide holder in due course, against
the petitioner, who set up that in
case of recovery it would be liable
not only to the bank, but also the
drawee, and asking permission to
pay the amount into court, the true
claimant to be determined by the
issue framed on the rule. Such a
proceeding was held not to be
within the Interpleader Act of
1836; and further, under the Ne-
gotiable Instrument Act of 1901,
binding instruction in favor of the
bank would be imperative on such
an issue. The drawee could not be
heard to deny the effect of its own
endorsement and the drawer was
not in peril

142 It cannot be accepted as a fixed rule

that crediting the account of a cus-
tomer with checks, drafts, etc.. de-
posited in the ordinary course of
business does not vest title thereto
in the bank. Each case is depend-
ent upon its facts

436 When the Court directed a verdict in

favor of defendant in an action for
services rendered

an appeal was
allowed from the County Court.
The defense was that plaintiff had
retained a check for a smaller
amount given in full payment

of plaintiff's claim. As the check had never been cashed, the mere retention of it would not estop plaintiffas an accord and satisfaction, unless his retention was an acceptance. His alleged acceptance, a disputed issue of fact, was for the jury and not for the Court to pass on

715 Where defendant bank refused to

honor a check, after replying to an
inquiry from plaintiff "Will honor
check or checks'' naming the
drawer and amount, the question
that plaintiff had not presented the


See also Minors: Parent and Child.
The Act of April 13, 1867, P. L. 78,

was intended to apply to cases
where a husband or father neglects
to maintain his lawful wife or his
legitimate children, or both, but
does not include the father of ille-
gitimate children

3 The Act of June 1, 1915, P. L. 652, gives

a dependent, neglected or
delinquent child committed to
care of

an industrial school, the
right to review and rehearing
on petition of their parent or next
friend. The refusal, if there be a
refusal to entertain a petition for
rehearing. cannot be considered in
a proceeding for a writ of habeas
corpus in another court until it
appears of record that the statutory

procedure has been complied with 141 Parents are presumed to know better

than anyone else who are their
children and when they say so in
unimpeachable written language
and by their continuous acts dur-
ing their lives acknowledged one as
their child, it will be conclusive,.. 376

No particular form is necessary to

constitute a valid assignment of a
debt or other chose in action.
words are used which show an in-
tention to transfer the chose in
action to the assignee for a valu-
able consideration, this is sufficient 794


See also Uses and Trusts.
The act of May 20, 1913, P. L. 242,

provides for the control of certain

church funds by the lay members.. 352 A devise to a church for a religious

use is not void where the church is
merged with another, under a dir-
ferent name, the new organization
containing the members of the
former congregations and the same


Page. character of religious work being continued in the same community. 744


See Municipalities.


See Accounts; Statute of Limitations.


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See Attorney and Client.


See Mines and Mining; Real Estate.


Page. Casualties to state-owned automo

biles, whether by fire or other
cause, are covered by the state in-
surance fund, and loss by reason
of such casualty is replaced by said
fund, but no insurance should be
taken out against casualties or


persons or non-stateowned property caused

state. owned and operated automobiles. The state is not liable for the torts

or negligent acts of its servants.. 23 If

a claim against the Commonwealth under the provisions of the Act of March 30, 1811, is disallowed, an appeal lies to the Court of Common Pleas of Dauphin County, where the case is then triable as other cases of like character

218 The Commissioner of Forestry is the custodian of the

State lands and stands in the place of the Commonwealth. It is within his jurisdiction to protect land owned by the State from encroachment of adjoining mining companies and make the necessary investigations as

to the taking out of coal. The State is entitled to the same protection

any other Owner of coal in place

327 The State Forestry Commission, under

the Act of February 25, 1901, P. L.
11, as amended by the Act of July
7, 1919, P. L. 727, has authority
to sell any and all trees, however
small, growing upon the State For-
est Reservations, when would
appear to the Commission that on
that the welfare of the Common-
wealth with reference to the re-
foresting and betterment of the
State Forests would be advanced,
and efforts made in good faith to
dispose of said timber had been un-
successful. This Act is an emer-
gency measure for the benefit of the
State forests. The net receipts de-
rived from the sale of such timber,
which embrace the expense of pre-
paring the timber for market only,
should be paid into the State treas-
ury for the benefit of the school

456 The Act of May 31, 1911, P. L. 468.

does not in terms authorize an ac-
tion by a material man on a bond,
but the statute was for the benefit
and protection of material men fur-
nishing labor or materials in the
construction of the highway. To
deny the right of the material man
to sue upon the bond would render
the Act, in so far as it benefits him,
of no effect and relieve the surety
from its agreement, so that a ma-
terial man can prosecute his claim
against the surety without making
the Commonwealth a party to the

540 A pool table donated by public

spirited citizens to a state armory
which is supported by funds appro-
priated by the Commonwealth is ex-
empt from a Federal tax....

692 The Board of Game Commissioners

can appoint and authorize agents
to act for the State to band 'birds
for scientific purposes, provided that
such birds are not to be kept in
captivity or injured.


See also Taxation.
It appears to be settled in Pennsyl-

vania that the collateral inheritance
tax is an estate tax, not a succes-
sion tax, and that as such it is

upon and made a charge against the estate of the decedent. 65 Where a testator devises to his wife

a life estate and the remainder to
his executors in trust to sell, and

subsequent clause empowers
his executors to sell both the life
estate and remainder, subject to the
consent of his wife, and the execu-
tors sell the remainder and the life
estate with the consent of the wife,
the proceeds are not liable to col-
lateral inheritance tax. The physi-
cal status of the property at the
time of testator's death determines
the question of liability..



See Assumpsit; Brokers.


See Forests.


See Carrier.

... 847

The Commonwealth's claim against

the estate of an alleged indigent
lunatic under the Act of June 1,
1915, was refused where it appeared
that the Commonwealth failed to
present its bill to the administrator
or committee at the time the estate
was audited in court and distribu-
tion ordered. Neither were the
distributees held liable, as the an-
swer to the petition denied any in-


averred that all bills rendered for keeping the lunatic had been paid to the Hospital for

the Insane, and these averments had not been refuted...

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