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In an action on a promissory note, where a copy of the note was incorporated in plaintiffs' statement, it was not necessary under the Practice Act of 1915 to aver specifically that the contract sued upon was oral or written. A promissory note implies a writing and statutory demurrer overruled

An accommodation endorser of a promissory, who paid the note after its dishonor, cannot maintain a joint action against the other parties to the note, neither can he maintain a joint action against an individual and an executor of a deceased endorser, nor can a dis

solved partnership be joined as a party defendant. Demurrer to statement sustained

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An accommodation maker of a promissory note is liable thereon to accommodation endorser of payee who becomes the holder of the note in due course. An affidavit of defense to an action on a promissory note was insufficient to prevent judgment where it was averred that the note tioned in the agreement could be renewed at maturity and "at said time and many times thereafter the plaintiff agreed with defendant that in consideration of the said defendant devoting his time, energies and money in perfecting the said machines and advancing the interests of the said corporation which the plaintiff held stock, the said plaintiff agreed to renew said note from time to time until such time as the defendant would be able to place the machines upon the market and the said corporation would begin to show profits from the sale of the said machines," but it was not averred that defendant had requested a renewal and he could not now defend against a request for payment.. The effect of deriving title through a holder of a promissory note before or after maturity in due course, is to make the indorsee a holder in due course, the latter taking the place of the former and being entitled to the rights of the indorser. Upon this theory there is no conflict between Sections 58 and 28 of the Act of May 16, 1901, P. L. 199, and both may be given the effect intended by the Legislature An affidavit of defense in an action on bill a of exchange was in sufficient to prevent judgment under the Negotiable Instrument Act of 1901 in simply averring that "plaintiff knew" and had "full knowledge * • of all the facts, etc.," in that plaintiff, be

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ing a corporation, it was incumbent upon defendant to name the person acting for plaintiff and stating precisely the circumstances under which the knowledge by plaintiff was acquired

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The holder of a collateral note is not required, to give notice to the corporation of the sale and purchase of shares of capital stock upon default and upon presentation of the certificate in proper form is entitled to a new certificate and to all the rights of a stockholder.... 783 BINDING INSTRUCTIONS.

See Assumpsit; Negligence; Trespass;
Trial.

BIRDS.

See Game.

BOARDS OF HEALTH.

See Health.

BONDS.

See Replevin; Principal and Surety. BONUS.

See Assumpsit; Contracts.

BOROUGHS.

See also Municipalities; Viewers. Where a borough, following the Borough Code of May 14th, 1915, P. L. 312, in Chap. VI, Art. XX, Sec. 8, empowering boroughs to "enact ordinances establishing reasonable rates of license fees on all vehicles used in carrying persons or property for pay," enacts an ordinance imposing a schedule of annual licenses, such ordinance is invalid as applied to the owner of an automobile truck used by a baker in delivering his products without first obtaining a license. Reading City v Krause's Estate, 167 Pa., 21, construed...... 223 A borough was not required to remove a sewer or to change its location so as to prevent plaintiff's land from being damaged by surface water, and bill dismissed where the sewer was constructed under an agreement with the former owner of the land, and so far as appeared, in the manner agreed upon between the defendant and that owner. The defendant had a right to maintain its sewer.. ... 251 Boards of health of boroughs and firstclass townships have no power to arrest those violating their rules and regulations and have them punished by fine and imprisonment, unless such rules and regulations are duly enacted into ordinances and advertised and promulgated the same as other ordinances relating to other subjects are approved and advertised

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A board of health in a borough or first-class township may abate conditions declared to be nuisances by regulations of the State Department of Health and recover the cost of such abatement from the owner of the the premises in manner provided by Section 8 of the Act of June 12, 1913, P. L. 471. 665

BOUNTIES.

See also Game.

Unclaimed weasel skins, or pelts, left in the hands of the Game Commission, under the Act of May 23, 1919. P. L. 270, become the property of the State Game Commission after the bounty has been paid. The owner has a right to direct where they should be sent and they belong to the commission only when the owner fails to claim them......... 616

Subject.

BROKERS.

Page. Subject.

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BUILDING PERMIT.

An injunction applied for by a property owner to restrain the erection and maintenance of a frame building was refused where a special permit had been granted defendant by council after a building permit had been refused by the borough officer entrusted with the issuing of permits, because it did not comply with a borough ordinance, and, further, where it did not appear that the erection of the ture would increase the fire hazard on plaintiff's property

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A city ordinance defining the powers and duties of the Department of Public Safety and Bureau of Building Inspection therein, which empowers and directs the department and the bureau to inspect, regulate, supervise and control the construction and alteration of buildings and to issue permits in respect thereto as therein, or thereafter, by ordinance prescribed, and makes it the duty of the bureau to examine and pass upon all applications for permits for the construction, alteration, repair, use and occupancy of buildings; approve or disapprove same and issue or refuse to issue any and all permits, is a restriction upon the use of real property and must be strictly construed.... 529

BUILDING RESTRICTIONS.

See also Equity: Injunction.

A preliminary injunction was granted where it was clear that defendant was constructing a porch in front of his house in violation of a building restriction. The decree

prohibiting the erection of the porch was so drawn as to permit the erection to continue in compliance with the restriction, leaving the question as to whether the construction was in compliance with the restriction to be determined on final hearing

The remodeling of a stable or garage into a duplex dwelling house of four or five rooms and a bath each was restrained as a violation of a building restriction which provided "nor shall any double houses or apartment houses or any other sort or kind of dwellings except single dwelling houses be erected." The express prohibition against a double (duplex) house or apartment house was not modified by the words of the exception

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BUILDING AND LOAN ASSOCIATIONS. Building and Loan Associations have the right to charge a premium on loans with the stock of the association as collateral, provided the loans are made to the stockholders bidding the highest premium therefor at an open meeting of the association, in accordance with the provisions of the Act of April 29, 1874, P. L. 96, Section 37.. The cashier of a State bank, incorporated under the Act of May 13, 1876, can, at the same time, hold the office of secretary of a building and loan association

BULK SALES.

Where a sale of merchandise, fixtures, etc., is made in bulk, without notice to creditors as required by Act of March 28, 1905, P. L. 62, the proper procedure to determine the question of the creditors' rights is by writ of attachment under Act of March 17, 1869, P. L. 9, and its supplements

BURDEN OF PROOF.

See Evidence.

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A stipulation in a bill of lading issued by the initial carrier of goods for interstate shipment limiting liability for loss to cases in which claim. was made in writing within a specified time, is a reasonable provision, and must be complied with in order to recover for loss of the goods in transit Defendant railroad was liable in an action brought to recover the fair market value of twenty-eight crates of blackboards, to be shipped by the defendant as initial carrier to the plaintiff, where the consignor notified defendant at what place the merchandise was to be found, and it was no defense that the goods had been placed in a car or on a siding connected with another railway. Having accepted the shipment, defendant was liable when it failed to deliver..

CEMETERY.

A decedent left a widow and one child, father and mother, and brothers and sisters. Upon his death one of his brothers, without the approval or consent of the surviving widow, but contrary to

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her wishes, and against her protests, caused the body of the deceased to be buried in a lot belonging to his brothers. The surviving widow purchased a lot in another cemetery nearer her nome where she desired to have the remains of her husband buried. The deceased and his wife had lived happily together throughout their married life, and were so living at the time of his death. Prior to his decease they had discussed the matter of death and burial, and had agreed between themselves that if the wife died first her husband should bury her wherever he chose, and if the husband died first his wife should bury him at whatever place she might select. No reason was shown for the refusal of the brothers of the deceased to permit the surviving widow to remove the body of her husband to the place selected by her for his last resting place, except the mere arbitrary preference of his brothers that his body remain where already buried. Held: That the surviving widow had a right to remove the body of her husband to the new lot purchased by her in which to bury

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judgment of a Justice of the Peace, the defendant also sues out a writ of certiorari, on motion the writ of certiorari will be quashed. Defendant is not entitled to both an appeal and a certiorari If judgment be recovered before a magistrate without service of the summons or notice of any kind that suit had been entered, the Act of March 30, 1810, does not deprive the defendant of the right to a writ of certiorari after twenty days from the date of judgment. But to ob

tain relief the writ must issue within twenty days after notice of the judgment, otherwise defendant cannot get relief because of his own laches

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On certiorari from the docket of a Justice of the Peace, an attorney's docket fee of $3.00 should be allowed where the court sustains the judgment of the Justice of the Peace, for such action by the Court is a final determination of the suit and the judgment of the court.... 584

CHARGE OF COURT.

See New Trial.

CHARITIES.

Where testatrix executed her will on November 19, 1918, directing that the will be dated October 17, 1918. which was done, and then died on November 20 1918, the charitable bequests would be inoperative, the will not having been executed within 30 days of testatrix's death. 136

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charter under the Act of April 6, 1893, P. L. 10, not under the Corporation Act of 1874..

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Under the Act of June 13, 1911, P. L. 898. exempting from taxation "all churches, meeting-houses or other regular places of stated worship and all grounds thereto annexed necessary for the occupancy and enjoyment of the same," etc.. the boarding-hall of an association incorporated for the purpose of holding annual evangelistical meetings, used by the association to furnish accommodations. at cost for persons from a distance attending its religious meetings, and forming an integral of its property, is exempt from taxation Where real estate was granted and conveyed to a person in charge of a charitable institution managed by a religious order and for its use and the religious order later retired as managers, the institution being continued as an unincorporated charitable organization, it was held equity had jurisdiction but would determine the rights of the parties only after final hearing. Demurrer was not the proper method for disposing of questions raised

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A devise to a church for a religious use is not void where the church is merged with another, under a diferent name, the new organization containing the members of the former congregations and the same character of religious work being continued in the same community. 744 CHARTERS.

See also Corporations.

In considering the application of a proposed corporation, its name becomes of vital importance when such name is similar to that of a corporation already in being, and when such proposed corporation intends to engage in the same, or substantially the same, business within the same locality as that transacted by the one already in existence, the corporate name is of such importance as to constitute the sole ground for the refusal of a charter

In the incorporation of a society to be composed of members of a foreign nationality, whose purpose, inter alia, is "to promote the interests of its members by instructing them in the principles of American citizenship and good government, and by proper educational means, to oppose any radical agitation or propaganda among its members," the court will require the members to take oath to be loyal and faithful to the Government of the United States. to observe its constitution and laws and the constitution and laws of the State of Pennsylvania, and to defend the United States against all enemies, foreign and domestic, in addition to the proposed oath to be true and faithful to the society

An application for a charter incorporating a state bank was refused

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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 to 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 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 commercial 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.," refused

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 corporation, nor does it possess any individuality

CHECKS.

A rule to interplead was discharged where the drawer of a check, upon which payment had been stopped and after suit by a bank, the bonafide

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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 Such a issue framed on the rule. proceeding was held not to be Act of within the Interpleader 1836; and further, under the Negotiable Instrument Act of 1301, 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 the drawer endorsement and not in peril It cannot be accepted as a fixed rule that crediting the account of a customer with checks, drafts, etc., deposited in the ordinary Course of business does not vest title thereto in the bank. Each case is dependent upon its facts 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 plaintiff as an accord and satisfaction, unless his retention was an acceptance. His alleged acceptance, disputed issue of fact, was for the jury and not for the Court to pass

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defendant bank refused 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

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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 prohibited 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 the operation or management of hoisting machines

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 machine, is entitled to compensation under the Rehabilitation Act of July, 18, 1919, P. L. 1045... 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 institution would be immune from action for damages, leaving claimant without adequate redress, and thus employer would be allowed to take advantage of its Own wrong, and finding of referee awarding damages affirmed

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The Act of June 1, 1915, P. L. 652, gives a dependent. neglected or delinquent child committed to the care of the an industrial school, right to a 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 in corpus 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 during their lives acknowledged one as their child, it will be conclusive... 376

CHOSE IN ACTION.

No particular form is necessary to constitute a valid assignment of a debt or other chose in action. If words are used which show an intention to transfer the chose in action to the assignee for a valuable consideration, this is sufficient 794

CHURCHES.

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 different name, the new organization containing the members of the former congregations and the same

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COLLATERAL INHERITANCE TAX. See also Taxation.

It appears to be settled in Pennsylvania that the collateral inheritance tax is an estate tax, not a succession tax, and that as such it is levied upon and made a charge against the estate of the decedent. Where a testator devises to his wife a life estate and the remainder to his executors in trust to sell, and in a subsequent clause empowers his executors to sell both the life estate and remainder, subject to the consent of his wife, and the executors sell the remainder and the life estate with the consent of the wife, the proceeds are not liable to collateral inheritance tax. The physical status of the property at the time of testator's death determines the question of liability.

COMMISSIONS.

See Assumpsit; Brokers.

COMMISSIONER OF FORESTS. See Forests.

COMMON CARRIER. See Carrier.

COMMONWEALTH.

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 distribution ordered. Neither were the distributees held liable, as the answer to the petition denied any indebtedness, but 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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Casualties to state-owned automobiles, whether by fire or other cause, are covered by the state insurance fund, and loss by reason of such casualty is replaced by said fund, but no insurance should be taken out against casualties or damage to persons or non-stateowned property caused by stateowned and operated automobiles. The state is not liable for the torts or negligent acts of its servants.. 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

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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 as any other owner of coal in place

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 Forest Reservations, when it would appear to the Commission that on that the welfare of the Commonwealth with reference to the reforesting and betterment of the State Forests would be advanced, and efforts made in good faith to dispose of said timber had been unsuccessful. This Act is an emergency measure for the benefit of the State forests. The net receipts derived from the sale of such timber, which embrace the expense of preparing the timber for market only, should be paid into the State treasury for the benefit of the school fund

The Act of May 31, 1911, P. L. 468, does not in terms authorize an action by a material man on a bond, but the statute was for the benefit and protection of material men furnishing labor or materials in the construction of the highway. Το 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 material man can prosecute his claim against the surety without making the Commonwealth a party to the action

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