A change of name of a corporation is not such a change in the article of incorporation as to release one who subscribes for stock when there is no allegation of fraud or that the first name had some value or that the change in some way prejudiced the interests of the subscriber.... 602 A stockholders bill against the officers and certain directors of a corporation was held insufficient where plaintiff failed to aver that she had sought redress by the officers and directors without result. This general rule can only be avoided in exceptional cases and it must clearly appear that such action would be useless. Glenn Kittanning Brewing Company, 259 Pa., 510, distinguished 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 does it possess a V corporation, nor any individuality 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 If the actual exercise of visitorial powers over corporations is not requisite to the relief, the rule as to non-interference by courts of equity should be restricted and not carried further than is absolutely required by universal fixed rules of law 630 743 783 810 Where a decedent prior to his death had subscribed for stock of a contemplated corporation, but had not paid for the same, and where the stock was subsequently paid for and a certificate issued in the name of the estate, a "waiver" is required before the stock can be transferred out of the estate. This is required by the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521. Had the stock been in an existing corporation, no "waiver" would be required before the stock could be transferred out of the estate, unless the subscriber had the status of a corporate shareholder........ 849 COSTS. See also Appeals; Fees. Defendants were held liable for the cost of printing the paper books in an appeal to the Supreme Court, where plaintiffs recovered a verdict below but appealed. The lower court was affirmed and the judgment in favor of the plaintiffs stood as the final judgment in the case. The fact that the defendants were the victors in the particular question raised on the appeal would not exempt them from the costs, as the plaintiffs got the final decision in their favor In an action of assumpsit in Common Pleas to recover damages for violation of a parol contract to sell land, a recovery of a judgment for less than $100 will carry costs notwithstanding a failure to make the affidavit required by Section 26 of the Act of March 20, 1810, 5 Sm. Laws, 161 106 143 the In a criminal prosecution for conspiracy, where defendant was found not guilty, it was not proper for the jury to impose costs on prosecutor in that the offense charged was of a grave character and there was nothing in the testimony to show the prosecutor acted maliciously or improperly in making the complaint. This brought the case within one of the four rules when the prosecutor should not be required to pay costs.. Where defendant was found not guilty of assault and battery, and the testimony showed that the complaint grew out of and was indirectly caused by the commission of a more serious nature, but that there was not sufficient provocation for making an information, the court refused to impose the costs on the county after the jury had imposed them on the prosecutor.. The service of a subpoena duces tecum does not raise an assumpsit to pay for whatever trouble or difficulty the witness may have in finding the papers called for, and in an action by plaintiff to recover for said expense from defendant, judgment entered for defendant.. Where defendant admitted a certain amount of a claim to be due and tendered that amount to plaintiffs, he was not liable for costs accrued prior to the time that he filed his affidavit of defense The costs on a sci. fa. for collection of owelty in partition, charged by recognizance in the Orphans' Court, are payable by the recognizors or their alienees, with the debt and interest A creditor in a bankrupt's estate, who with the consent of the trustee prosecuted a claim under the name of the trustce, and with the consent of other creditors was entitled to deduct the necessary expenses, costs and counsel fees from the fund recovered prior to filing his account with the referee. The law does not require him to pay over the entire amount and then come knocking at the door of the estate for repayment of his just share CO-TENANTS. See also Equity; Remainder. 221 222 373 590 635 794 One co-tenant is liable in assumpsit to his co-tenants, all being engaged in a common enterprise of developing an oil lease, to recover certain materials appropriated by him and belonging to all the co-tenants, where a partnership did not arise either by implication or agreement 369 COUNTY COURT. See Appeals; Courts; Jurisdiction. COUNTY COMMISSIONERS. When bids are invited through public notice by County Commissioners for public work, bidders ought to be asked to bid upon a "common standard." When such bids are not on the same basis, equity will restrain the awarding of a contract.. 201 COURTS. See also Jurisdiction. Act of June 16, 1836, P. L. 1835-6, 785, 790, Section 13. provides that the several courts of Common Pleas shall have chancery powers to prevent or restrain "the commission or continuance of acts contrary to law and prejudicial to the interests of the community and the rights of individuals." This broad grant of equity jurisdiction is sufficient to cover cases where plaintiff complains that defendant city has unlawfully arrogated to itself the right to make and enforce unreasonable and discriminatory water rates to the prejudice of the former The Court refused to fill a vacancy on a Fourth Class School Board where thirty days had not elapsed since the time a vacancy was known to exist, although the member had been in default by failure to attend the board meetings for a longer period. The board should be given an opportunity to fill the vacancy before action by the Court... It is ordinarily the duty of the wife to follow her husband to his new abode, and it is not for the Court to determine whether he should or should not make such a change; but the wife is not under all circumstances thus obligated to follow her husband; and when he seeks to base a decree in divorce upon her refusal to obey, the courts must scrutinize every fact and condition which may throw light upon the question of the bona fides of the husband in demanding such obedience and consider all the conditions existing which may in some circumstances warrant a wife's refusal to comply. The burden is cast upon the husband to convince a chancellor that he had provided a proper and suitable new abode and that the wife's refusal to go there was unwarranted, and therefore constituted desertion Courts cannot recognize any hours or time other than that recognized and established by law, State and national. For this reason in any processes of the Court or orders made thereby in which an hour may be referred to, it must be understood that the hour mentioned therein means and is intended to mean such hour according to standard time. Any attempt on the part of the Court and court officials to indicate expressly a different standard, especially one which is recognized only locally, would lead to confusion and might result in loss and serious embarrassment to individuals The Court of Common Pleas has no power to make an order on a petition by a general creditor to require guardians or committees in lunacy to pay debts for maintenance prior to the appointment. The statute provides a simple method to obtain compensation for maintenance from the estate of the lunatic... With regard to a reinterment of the dead in a different place, the same rules should apply, with a presumption against removal growing stronger with the remoteness or connection with the deceased, and reserving always the right of the court to require reasonable cause to be shown for it.. It is within the discretion of the court as to the amount of a master's fees to be allowed in a partition proceeding. An exception to a fee of $500.00 was sustained and the sum fixed at $250.00.. The conformity statute does not apply to motions for a new trial, whatever rule may be prescribed by the statutes of the State upon that subject, does it control or affect the power of the Federal courts nor, 113 167 305 310 313 342 365 Page. under the Judiciary Act of September 24, 1879, c. 20, s. 17, and under Section 726 of the Revised Statutes, to grant or refuse a new trial at their discretion The uncorroborated testimony of plaintiff in an action for personal injuries that defendant's superintendent and foreman had promised to get him another mule, which caused his injuries, and this was unequivocally denied, was sufficient to take the case to the jury. The court is not authorized to weigh conflicting evidence It would be error for the court to affirm points not in accord with the evidence or the pleadings. A Court of Common Pleas may not properly direct the issuance of a writ of habeas corpus within 15 days of a sessions of the Court of Quarter Sessions even though the judges who sit in the Common Pleas are the same judges as sit in the Quarter Sessions.. In a disbarment proceeding the court had no power to inquire into the mere beliefs of the respondent respecting either religion, government or law. But he was here charged with more than entertaining beliefs and charged with conduct wholly destructive of the government which he took an oath to "support." This word is synonymous with "maintain" and "defend," and his obligation therefore required him to maintain and defend his government, which is the very opposite of attempting its destruction or even the impairment of its authority. Held: that his name be stricken from the roll...... 401 484 491 544 609 The courts of this state are not go- The findings of fact of a master in actual exercise of visitorial powers over corporations is not requisite to the relief, the rule as to non-interference by the courts should be restricted and not carried 779 CREDITORS AND DEBTORS. See also Assignment; Bulk Sales. Equity will intervene at the suit of an honest creditor to prevent the use of an alleged fraudulent judgment to defeat his claim if no execution be outstanding An attachment issued on the ground that defendant was about to move to another state and outside the jurisdiction of the court was dissolved where it appeared that plaintiff knew of defendant's intended removal, advised him about it and no effort was made to conceal the fact. Men who desire to remove to another state for the purpose of cheating their creditors do not usually publicly declare their intention to remove CRIMINAL LAW. In any case where it is sought to compel a reputed father to contribute to the support and maintenance of a bastard child, his paternity of the child must first be established, either by the verdict of a jury or by such voluntary action or assent on his part as is recognized by the law as establishing paternity When 840 396 563 3 a with property is obtained preconcerted design to steal it the possession continues with the true owner whatever may be the means or pretense under which it is obtained, then the legal possession was never out of the prosecutors, and defendant was guilty of larceny "by trick and artifice" and not false pretense. The distinction between the two crimes lies in the intention with which the owner parted with the property. To invest the accused with mere possession would be larceny; to invest the accused with possession and title would be false pretense After defendant had been found guilty of murder of the first degree the alleged misconduct of the foreman was not ground for a new trial in that he had refused to send to the trial judge a written request of one of the jurors asking for further instructions by the Court on the law relating to murder of the first degree and murder of the second degree. Said request in writing informed the Court that there was contention in the jury over the instruction of the Court on the distinction between first and second degree. Inquiry regarding discussion in the jury room is not permissible There is no authority in Pennsylvania that can authorize or permit anyone to carry a concealed deadly weapon. Every person carrying one must, under the Act of March 18, 1875, P. L. 33, assume the burden of proving that he carries the same for a proper purpose..... A proceeding by indictment for the offense of refusing to stop a motor car at the request of an officer 81 231 246 The information charged the defendant with fraudulent conversion as an agent, and the indictment charged the receipt of the money in an unknown capacity. The evidence showed the defendant was an agent. The question of variance cannot be decided on a motion in arrest of judgment and new trial granted... 657 The Act of May 18, 1917 (P. L. 241), making the fraudulent withholding or conversion of money or property of another by a person who has received it or has possession in any capacity or by any means whatever a misdemeanor, does not apply to a vendor of real estate who did not perform his agreement to pay a mortgage on the property out of part of the purchase money, but applied it to the balance of purchase money due himself.. A juror who is found guilty of embracery may be punished summarily by the Court or may be indicted and these remedies are concurrent A defendant guilty of fornication and bastardy who has been committed to jail for failure to comply with the sentence of the Court is not entitled to a discharge from imprisonment after being confined for three months. Procedure in such cases is no longer regulated by Section 6 of the Insolvent Act 4 June, 1901, P. L. 404. but by Act 24 May, 1917, P. L. 268 An officer or agent of the United States Government selling adulterated food in pursuance of the order of his department of the Federal Government cannot be prosecuted for the violation of a state statute 659 701 761 773 Where in a homicide case the defendants committed an act which under the law constituted murder of the second degree, it is not ground for a new trial that the jury found the defendants guilty of the lesser offense of voluntary manslaughter.... $35 An appeal was dismissed and a new trial refused one convicted of first degree murder on the sole ground that one of the jurors was an alien, when defendant had an opportunity to examine the jurors as to their qualifications and on his voire dire the juror was not questioned as to his citizenship CROSS-LIBEL. See Divorce; Pleading and Practice. CRUELTY TO ANIMALS. See Animals. CURTESY. See Husband and Wife; Life Tenant; Wills, Where testatrix gave her husband a life estate in the home, with remainder over to be divided as specified, and then provided: "I give and bequeath to my husband the balance of my estate, including my 848 Page. Subject. Subject. bank account and mortgages, and at his death the amount not used shall be given to the First Presbyterian Church of Braddock Pa.," upon the husband's death, and the payment of the legacies, it was held that testatrix did not die intestate as to the residue, but that it should be distributed according to terms of the will DAMAGES. D. the .. 757 See also Negligence; New Trial; Trespass; Verdict. The measure of damages where plaintiff sued to recover commissions on orders for goods sold on behalf of defendant, would be the loss occasioned by defendant's actions in failing to give plaintiff proper support in the way of furnishing terms, prices, etc., and any loss sustained by the same, even though they may be speculative to a degree. These would be questions for the jury Defendant was held not liable in damages in an action for malicious prosecution where plaintiff had been arrested under circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused was guilty of the offense charged and the admitted facts showed probable cause.... Where a writ of attachment issued after breach of a contract, but before damages had accrued, it was premature In an action for personal injuries to the wife resulting from the negligence of defendant, the measure of damages on behalf of the husband is to recover for any expenses he incurred by virtue of the accident, such as doctor bills, hospital bills and nursing bills; and, in addition, compensation for the loss of service of his wife, defining service to mean aid, assistance and comfort that a wife would naturally render her husband, according to the circumstances 241 282 348 438 A verdict in favor of telephone operator who was seriously injured and badly disfigured in a collision while riding on a street car was not disturbed on the question of the proper measure of damages, where defendant railway company admitted its negligence and the evidence as to future earning power, while somewhat indefinite, yet showed with a reasonable degree of certainty the unhappy condition in which she was left as a result of the accident. Moneys earned before and after the injury do not in themselves determine whether or not earning power is permanently affected, but is only an aid in determining if they be 459 present.... ..... 484 Plaintiff recovered damages for pervicious sonal injuries caused by a mule and new trial refused where there was no testimony showing the employer had notice or knowledge of the alleged vicious habits of the mule "Nellie" prior to the date on which plaintiff says he made complaint. This fact was called to the attention of the jury.. The owner of land abutting on a street closed in changing the grade for a railroad crossing could not recover damages where the borough had contracted with the railroad authorizing the improvement and agreeing to vacate the street, but no ordinance vacating the street had been passed. An equi Page. table defense that the street should be considered as vacated would prevail In an action for damages against a landlord for the sale of goods on a landlord's warrant, plaintiff is entitled to prove the market value of the goods sold, and when, by reason of the goods being in possession of defendant, they cannot be appraised, their value may be established by one experienced in the sale and purchase of furniture. It was for the jury under all the testimony to fix the value... A jury which has viewed the premises has a right to take into consideration what they saw there, in connection with the estimates as to the value of the property given by the witnesses in court, in a condemnation proceedings Where a part of a building under a lease for a term of years was taken in the widening of a street, the report of viewers in awarding damages to the tenant took from the tenant its right of compensation for the loss of a portion of the demised premises, gave it to the landlord and at the same time relieved the tenant of its duty to pay rent for BO much of the premises actually taken. This was not the legal measure of damages to which the tenant was entitled. The taking of a part of the premises by the city did not release the tenant from payment of rent in accordance with the terms of the lease. Exceptions sustained and report referred back to viewers for correction. DATE. See time. DAYLIGHT SAVING. The Act of Congress of March 19, 1918, provides that for the purpose of establishing a standard time the territory of continental United States, including Alaska, shall be divided into five zones. The statute further provides that such standard time shall govern the movement of all common carriers engaged in interstate commerce and commerce between a state and any territory, and shall apply to all departments of the government, whether legislative, executive or judicial DEAD. There is no universal rule as to the burial of the dead applicable alike to all cases, but each case may be considered in equity on its own merits, having due regard to the interests of the public, the wishes of the deceased, and the rights and feelings of those entitled to be heard by reason of relationship or association. Subject to this general rule the paramount right is in the surviving husband or widow, and, if the party were living in the normal relations of marriage, it will require a very strong case to justify a court in interfering with the wish of the survivor DEATH (PRESUMPTION OF). DECEDENTS' ESTATES. See Descent and Distribution. DECREES. See also Equity, Orphans' Court. We cannot be convinced by an argument that court records when made are to remain forever, and there 501 623 799 858 310 342 fore inviolate. Of course, a decree cannot be violated; but this does not mean that a Court of Equity cannot change it when it is shown that a mistake has been made, and that a refusal would be inequitable. Decree in former audit in a decedent's estate opened, the account restated and distribution of paintings and personal property made to widow where there were no questions of fact involved. Petitioner was not estopped even where several years had elapsed from entering the decree, of which she had received no notice DEFALCATION. See Setoff. DEEDS AND MORTGAGES. See also Forgery. A mortgage is not a "charge" upon the mortgaged premises within the meaning of the Act of April 27, 1855, P. L. 368, which provides that no "ground rent, annuity or other charge upon real estate" shall be recoverable after twenty-one years, when no declaration or acknowledgment of its existence shall have been made within that period by the owner of the premises. After an acknowledgment of a deed by the sheriff in open court, the title to the real estate cannot be affected by mere irregularities in the proceedings 737 7 205 411 585 In ejectment the title of one who held under one who had acquired title by a recorded deed was held to be superior to one who was in possession under a prior unrecorded agreement to sell. An innocent purchaser of real estate for value without notice of an existing but unrecorded agreement would. have good title Equity decreed the cancellation of a mortgage where plaintiff had executed the bond and mortgage on the express agreement that the money would be loaned, but after recording the mortgage the property was found to be encumbered by prior mortgages and defendant refused to advance the money.. Where plaintiffs issued a scire facias sur mortgage a year and a half after it became due, having accepted interest at 31⁄2 per cent., the rate named in the mortgage for two interest periods, but demanded 6 per cent. on the last period, an affidavit setting up an agreement prior to the mortgage becoming due that the interest rate was to continue unchanged, and also no notice of the proposed change, was held sufficient to carry the case to a jury. Rule for judgment for want of a sufficient affidavit of defense discharged In re adoption of Ejectment and Miscellaneous Index and Reindexing of Judgment, Sheriff's and Treasurer's Deeds in the Office of the Prothonotary of the Court of Common Pleas of Allegheny County.... 662 Where an order was improvidently made directing distribution in the hands of the sheriff in accordance with a stipulation and said order was not in accordance with the stipulation filed by counsel, a rule to require the repayment by a distributee of a sum to conform to the stipulation to the sheriff was made absolute. A mortgage foreclosed does not bear interest to the date of distribution 597 719 826 handling or dealing in necessaries," is not void for uncertainty, and demurrer to indictment overruled.. 289 The Act of Congress of October 22, 1919, known as the Lever Act, in so far as it declares it to be "unlawful for any person wilfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," is vague, indefinite and uncertain, and because it fixes no immutable standard of guilt, but leaves such standard to the variant views of the different courts and juries which may be called on to enforce it, and because it does not inform defendant of the nature and cause of the accusation against him, is constitutionally invalid, and demurrer by the defendant sustained A demurrer to a bill praying for an injunction to restrain the erection of a building was dismissed and defendant required to answer where plaintiff alleged special damages and annoyance. In such a case plaintiff was entitled to a hearing to prove her case A demurrer to a bill for a dissolution of a partnership and an accounting was dismissed where the agreement between the partners related to fixing a price to be paid a partner voluntarily withdrawing from the co-partnership, but did not provide a method of effecting a dissolution where a partner was excluded and his co-partners, against his protest, took over and managed the joint affairs ... 293 320 392 Where a demurrer to a bill raised mixed questions of law and fact which required an answer for their proper determination, the demurrer was overruled without prejudice.... 493 A demurrer to a cross-bill was sustained where plaintiff sought the specific performance of a parol agreement to sell certain shares of capital stock of a corporation, while the cross-bill alleged mismanagement and prayed for an accounting. A cross-bill must be confined to the subject-matter of the original bill. 615 demurrer to a stockholders' bill against the officers and five directors of a corporation to declare illegal and void an issue of certain shares of stock to themselves was sustained and the bill dismissed where plaintiff did not aver prior demand for redress from the directors or an attempt to secure redress by action of the stockholders of the corporation or by any corporate action whatever A 630 |