Page images



Page. | Subject.

Page. ecuted a Declaration of Trust

taken would be considered as stipulating "that

I will, upon


waived where the evidence of dequest made by said company, con

fendant showed the claim had been vey the same to it or its assigns at

refused although ihe methol 1'0any time desired"

237 vided had not been regularly rolA provision in a lease, reading "It is

lowed and defendant's 1110tion for agreed by the Lessor to give the

new trial refused, Un such case Lessee the privilege of renting said

the rules of the association wouli store room for two years from the

not apply

198 expiration of this lease" was held

A rule to compel an attorney to file a to be abrogated by a subsequent

warrant of

attorney authorizing lease with an assignee of the orig

to enter suit was discharged inal lease omiting specific reference

where suit Was entered in the to a renewal and plaintiff was not

names of co-payees on a promissory entitled to equitable relief when the

note in that the attorney

repreowner ordered him to vacate the

sented one of the payees who was premises


not obliged to obtain the consen! An assignment by a beneficiary of his

of his Co-payee to enter Silit to interest in decedent's estate served

enforce his rights. The law gave upon accountant

January 16,

him that right, even against tie 1913, was held to have priority over

wishes of the other an execution attachment based

..... 204

A township cannot recover in assumpupon a judgment on а.

bond and

sit for the cost of grading, paving mortgage served

August 16th,

and curbing, where the claim

TV as No particular form

not filed in ihe Court of Cormann is necessary to

Pleas constitute a valid assignment of a

217 debt or other chose in action. If

Where plaintiff sued to recover comwordis are used which show an in

missions on sale of goods for the tention to transfer :he chose in

defendant company, the defendant action to the assignee for a valuable

could not escape liability by setting consideration, this is sufficient. ... 794

up a provision in the contract that commissions were

to be pal on ASSUMPSIT.

orders “subject to the acceptance" See also

of such orders and "for gowls ACActions; Contracts; Pleading and Practice.

tually shipped." Such construcWhere an

tion would open the doors to fraud action in assumpsit was based

which could be used to the detrion a judrnent recovered in New York, an


of others. insufficient affidavit

Whether orders of defense would not prevent entry

accepted but not shipped were reof judgment for plaintiff, but where

fused arbitrarily was a question for it appeared that an appeal on the

the jury and new trial refused after

Verdict for plaintiff . judgment was still pending in New


An York, an order was made delaying

accommodation maker of issue of

promissory note is lialle
the appeal

thereon until

to an proceedings in New York had been

accommodation endorser of

the concluded


payee who becomes the holder of the note in due course

276 When it appears that the rights of

Plaintiffs, who were the employees of several plaintiffs in the subject mat

the purchaser of a steam shovel to ter of a suit is several, and not

do his work and inform him of its joint, and the defendant sees fit to

condition, cannot recover il commistake defense and go to trial on the

sion from the seller, the defendmerits without objection



the sale of the Bachine joinder, he is too late to raise the

on an agreement of which the purquestion at the conclusion of the

chaser was ignorant. It is against trial. The referee properly refused

the policy of the law to enforce a request to hold that the suit had

such an agreement


plaintiffs not been well brought

for that

could not act as agents of the dereason

101 fendant when the alleged sale was In an action on a promissory note,

made through their recominen lawhere a copy of the note was in

tions to their own employer that corporated in plaintiff's statement,

the machine was in good working it was not necessary under the Prac


287 tice Act of 1915 to aver specifically Where executors paid a legacy on the that the contract sued upon was

advice of counsel who correctly oral or written. A promissory

stated the law but had been a misnote implies a writing and statutory

apprehension as to the clear terins demurrer overruled


of a will, assumpsit will lie to reThe failure to have two subscribing

recover the amount paid. This was witnesses present at the execution

a mistake of fact not cf law, arisan assignment, as required by

ing out of a careless reading of the the Act of May 28, 1715, 1 Sm. will

296 Laws, 90. cloes not invalidate the

Judgment was entered for defendant assignment, but only prevents the

in an action to recover 011 il (011assignee from proceeding on it in

tract for drilling an oil or gas well, his own name and requires him

plaintiff having "refused to i rocced to use the name of ihe assignor.. 152 further with said work until deIn assumpsit over the sale of an au

fendant made

2 payment


actomobile, evidence which explained

count," where there


an entire but did not vary or contradict the

contract, and under its terms payterms of the written agrement was

ment was contemplated only after competent and pral by defendant


well had been completed. from County to Conmo Fieas re.

One co-tenant is liable in assumpsit fused. It was also competent to

to his co-tenants, all being engaged explain the meaning of an abbrevia

in a common enterprise of develoption so as to identfy the car. 193 ing an oil lease, to recover certainAt the trial in court, against a bene

materials appropriated by him and ficial corporation, the provision of

and belonging to all the co-tenants, the by-laws requiring claims to bo

where a partnership did not arise passed upon by a committee before

either by implication or agreean appeal to the courts Coill be






Page. Subject.

Page. In an action to recover the balance

attempted to be committed, before due on a written contract for the

or after the signing of the agreetransfer of a cal mine and IES

ment in the matter of the procureequipment, whora defendant, after

ment of said insurance, or of the an initial payment, was placed in

presentation of the claim for loss, possession, it was not error tre

or ascertainment of the amount of fuse to sustain objection to de

the loss, or any other matter confendants's offer to prove the circum

nected with the subject matter of stances which led to the making of

the insurance and property covered the agreement, defendant being fa

thereby.” and after the loss had miliar with the mine and nat hay

been determined by the company's ing alleged fraud, accident or mis

adjuster, but refused payment betake


cause it was Plaintiff's statement of clain base.

not proved that the

goods were stored as provided in upon c verbal con rat and which

the policy. The defense of fraud did not allege 272 Xpress or im

having been decided plied

the part of decontract on

against de. fendant to pay a definite sum for

fendant by the jury, the verdict services rendered will not support a

would not be disturbed

521 julgment in default of an :iffidavit

A magistrate's record should show of defense, said judymun being

that he had jurisdiction of the fixed at a definite amount as dam

parties and of the subject-matter,

and it is not sufficient to say that ages

and rule to open judgment absolute

the claim is


moneys in the

of In assumpsit to

possession recover the balance

the defendant bedue on a lease of a coal mine, it

longing to the plaintiff


A material was a question of fact for the jury

man may maintain an to determine what credits were to

action in his own name against be allowed where plaintiff and de

the surety on a bond given by the fendant differed on the several

contractor for the construction of amounts under the ter ns of the

a State highway under the Act of contract and new trial refuse.i.... 429 May 31, 1911, P. L. 468, where the A bank which maintained steam

contractor neglected and refused to ship department and accepted

pay for the materials furnished... 540 money for the transportation of

In assumpsit on a benefit certificate certain persons from Poland to the

a verdict was directed in favor of United States upon a contract

the defendant where the beneficiwhich provided: "It is agreed be

ary's deceased husband, being in tween purchaser and this bank that

default of his monthly dues, it was in case passengers ale unable to

sought to prove that when her come, refund will be maae, at the

husband in her presence had told prevailing rate of exchange less

the collector that he had the money advances made to passengers and

to pay what was due but that the expenses incurred, Passengers to be

collector had suggested taking out located and passage to be advised by railograph.

a new policy and the two had disNo refund will be

cussed other terms to be accepted be made it passengers are returned

or refused at a later

date and from New York by the United States Immigration Authorities,

nothing more had been done in the and then forwarded the money to

matter prior to the insured's death, an ocean steamship

this could not be adjudged a tender company but

SO that the case could failed to

not be transport the passengers,

555 was heldt liable in assumpsit

allowed to go to the jury...

for the return of the money and it was

Whatever may have been the law of defense that state of war

Pennsylvania prior to the passage and the taking over of the property

of the Act of 1901, since the enof the steamship company by the

actment of that statute, it is the custodian of alien property had

recognized rule, that a transfer of made more difficult the perform

a note made by a holder in due ance of the contract. The contract

course, although made after mais in the alternative and could be

turity vests in the indorsee, the performed at any time by defend

indorser's right which cannot be ant returning the money


defeated on the ground that the In assumpsit on a book account, evi

note was accommodation paper, so dence to prove that credits claimed

that an affidavit of defense, claimwere paid on an old account, was


accommodation indorser properly excluded where plaintiff

was not


the note, having filed a reply to the affidavit of de

been purchased by plaintiff after fense admitting the amounts claimed

maturity, was insufficient

to preas shown in plaintiff's claim, but

vent judgment

571 alleged payment in full. This was

Where a partnership had been disforeign to the issue joined..... 491

solved by the

agreement ot one It was held that plaintiff could not

partner to pay stated sum for recover a special bonus for work

his partner's interest, said sum bedone on a contract where it

and the ing paid partly in cash

was impossible to de ermine just what

balance by a check, the court gave he was to do to entitle him to this

binding instructions in favor of sum aside from his duties as super

plaintiff in an action on the check. intendent, for which he received a

An alleged collateral agreement stated monthly salary


varying the terms of the written A fire insurance company was held

agreement would not avail as a de-

573 liable for Joss where the policy

A reference in plaintiff's statement provided "in consideration of the

that the case comes into the Comsigning of this agreement by the

mon Pleas Court on an appeal by party of the first part, the parties

defendants from the judgment of an of the second part relinquish their

alderman is improper. This is a rights to dispute or contest the

fact that should not appear in the figures set forth in this agreement

pleadings as representing the amount of

Plaintiff recovered the amount of his sound value and loss and damage,

claim for work and labor done except for fraud committed or

where defendant, a corporation,








Page. Subject.

Page. produced a receipt in full signed by

from plaintiff company was insufplaintiff, the evidence showing

ficient, which averred that plaintiff, that at the time the receipt was

not having paid the rent, defendgiven, plaintiff took a promissory

ant had vacated the office without note to his order, the note having

removing the goods sued upon. The been made by a clerk who had_no

affidavit did not aver that plainauthority to execute the same. De

tiff was to furnish an office and fendant not having suffered any

was liable to the full extent of his loss, the jury was justified in dis

guarantee or suretyship........... 734 regarding the receipt

587 Where defendant admitted a certain The provision of the policy first is not amount of a claim to be due and

waived by the fixing of the amount tendered that amount to plaintiffs,

of the loss on the basis of other inhe was not liable for costs accrued

surance under

"non-waiver'' prior to the time that he filed his

agreement entered into

by the affidavit of defense


parties merely for the purpose of Living as a domestic in a school dis

fixing the amount of the loss for trict is sufficient to establish a resi

which defendant would be liable

the dence within the meaning of

if liable at all, when the agreement School Code of 1911, and that dis

specifically provided that any action trict is liable to another school dis

taken by either of the parties to trict for the cost of educating the

determine the amount of the loss

should children



construed children are kept in a home for

waiver of any of the rights of the widows ind orphans located in the

parties, and that the acts of thed

defendant in endeavoring to ascerdistrict in which they attended the public school


tain the amount of the loss should

not be considered a waiver of any A valid call for the payment of the

of the condtions of the policy. 735 subscription according to its terms

Prior to the Practice Act of 1915, the must be made before any liability

failure to deny was not an admisfor payment arises and the cor

sion, except in districts where a poration cannot maintain an


rule of court so provided. The rule tion to recover the subscription

requiring a full statement in the price until the same has been

affidavit of claim (or statement), made


of the averments referred to preWhere plaintiffsued defendant to re

vents injustice to the defendant on cover damages for breach of a con

a rule for judgment, but the reason tract to deliver coal during a stated

does not apply to an admission.... 749 period, the amount damages

Where an architect recovered a vercould not be determined when the

dict for commissions on

drawing only evidence of plaintiff was that

plans for a structure that exceeded he was unable to buy any coal in

the estimates

new trial was the market, but did not prove that

granted in that the opinions and it was impossible to buy. This did

estimates of contractors in deternot comply with the Sales Act of

mining the cost of constructing a 1913, P. L. 543, Section 67. Motion

building under a given set of plans to take off non-suit refused.

606 and specifications would


much The defendant was held liable for the

more satisfactory in determining the average demurrage charges


actual fact than the mere opinion carload of frozen gravel, where

or estimate of an architect and oral, but written notice (as

the evidence was barely sufficient expressly required and a condition

to take the case to the jury.

765 precedent to the extending of free

A rule for judgment for want of a time) was given the agent or em

sufficient affidavit of defense Was ploye of plaintiff', the railroad com

discharged where, defendant having pany, at the station, within the free

refused to accept a car load of time as stipulated in an agreement

eggs, plaintiff shipped the same to as to instances where impossible to

another market and sued for the unload a carload of frozen gravel.

difference in the contract price and Defendant was bound by the terms

the amount realized and added the to which he had in writing assented

costs incident to the re-sale. This when he signed the agreement, and

extra outlay was a matter of proof it was not within the power of the

outside the contract, and not havCourt to reform the written agree

ing taken a rule for a partial judgment and to waive the graduated

ment on the contract, plaintiff was penalties incurred by the defend

not entitled to judgment....

807 ant's default in not complying with

Where a plaintiff alleges in his statethe mandatory terms and condition

ment in assumpsit that the defendprecedent in the written agreement

ant took and carried away a stated entered into with the common car

sum of money and refuses to rerier, the defendant not having

turn the same, the cause of action shown that the said employes or

is sufficiently set forth. The law station agents had any authority to

implies the promise to return the waive the terms and conditions of

money and the plaintiff need not the existing written agreement be

state in so many words that his tween the parties

625 claim is based on a contract...... 816 Assumpsit can be sustained only

Binding instructions for

the benefiwhere there is an express contract

ciary named in a certificate of life or the law will imply one..


insurance will be sustained, where Plaintiffs were employed by a. rail.

the only defense was that the inroad and recovered a verdict on a

sured made false statements in her contract for materials furnished the

application before the examining railroad company contrary to Sec

physician, but where there was no tion 1 of the Act of May 15, 1874,

allegation in the affidavit of defense P. L. 178, and of Section 6 of Ar

and no facts set

up therein or ticle XVII, of the Constitution of

proved by the evidence offered tendPennsylvania. Where plaintiff

ing to show that the alleged false failed to prove that it was a Penn

statements were

material to the sylvania corporation or did business

risk assumed by defendant's certifiin the state, the Court could not


S 46 take judicial notice of these facts. 705 A verdict of $2,400 for plaintiff was An affidavit of defense by a dis.

sustained where the contract for tributor of goods who guaranteed

electrical work was oral except that the payment of all goods received

plaintiff in a letter stated the work



Page. Subject.

Page. "can be done for approximately

was entered by plaintiff for default $1200,' and then proceeds to state

of an affidavit of defense it could that "ninety per cent. (90%) of

not be successfully contended by their work was done on the cost,

defendant on a rule to open the plus basis, i. e., twenty percent.

judgment that there was a tacit plus actual cost of labor and ma

understanding between the memterial and that they have no doubt

bers of the bar that judgments by that will be the cheapest way.'

default should not be entered in Defendant had no cause to com

vacation time, where such contenplain when the court submitted this

tion was not sustained by anything question to the jury on this basis,

on the record, nor by any underand appeal refused

859 standing, either formal or tacit,

among the members of the bar.... 513 ASYLUM

Attorneys at law stand in a position See Commonwealth, Lunacy.

entirely different from that of ordi

nary persons. Upon the latter are ATTACHMENT.

imposed the usual duties of citiSee also Execution Attachment, Gar

zenship and loyalty. The former nishee, Foreign Attachment.

are educated and trained so as to At the trial of an issue of an attach

fit them for high duties in adminment, it was a question of fact for

istering and maintaining the laws

of the land. the jury to determine whether or

The obligation of the not, under all the evidence as to

oath they have taken must at all the

times be observed in spirit as well custom, course of dealing or understanding, if any, the title to

as in letter, and they must cona draft passed to the plaintiff bank

tinue to be fit to exercise their high which had collected the

office, or be disbarred. amount

609 and had been summoned

A rule to strike off a demurrer to a

as garnishee, or remained in the drawees.

counter-claim was discharged in a The jury having found in favor of

special action under the Act of June the attaching creditor, motion for

16, 1836, P. L. 793, relating to rules new trial was refused..

on attorneys at law in that a de.

was It is not essential that the

murrer attach

the proper practice, ment under the Act of March 17,

such a proceeding not being within 1869, P. L., 9, be based on an aver

the Practice Act of 1915..

751 ment of actual fraud in the sale of merchandise, fixtures, etc...

336 AUDIT. An attachment issued on the ground

See also Descent and Distribution. that defendant was about to move

When the date testatrix directed the to another state and outside the

scrivener to put in the will, which jurisdiction of the court was dis

was clearly intentional, is not consolved where it appeared that plain

clusive of the time when the will tiff knew of defendant's intended

was actually made, this fact must removal, advised him about it and

be ascertained at the audit, and not no effort was made to conceal the

on an appeal from the decision of fact. Men who desire to remove to

the register of wills. Then the conanother state for the purpose of

struction of the will and the discheating their creditors do not

position of her estate are within usually publicly declare their in

the jurisdiction of the court, and tention to remove

it is for the court to determine the

validity or invalidity of the will or ATTORNEY AND CLIENT.

certain provisions in it....


A disputed claim against a decedent's See also Fees.

estate is properly litigated at the A lease with warrant to attorney to

audit, at which time the court is confess judgment in a lease in case

fully authorized to determine every of default by the lessee need not

question upon which the distribubear a revenue stamp as required

tion depends

145 by the United States Revenue Act

The Absentee Act of 1895 does not of 1918, Title VIII, Schedule 4, Par.

provide an exclusive method for es12. Such a warrant is not within

tablishing the presumption

of the meaning ot the Act. When an

death, so that an audit in the Orattorney appears in court he ap

phans Court should not be suspears as an attorney-at-law, and not as an attorney-in-fact, and his

pended pending proceedings under the Act

301 authority SO to appear is


Decedent's estate was held not liable sumed


for the fee of counsel employed by The district attorney in his address

one of the heirs in resisting the to the jury did not exceed the pro

payment of a note purporting to prieties when he referred to exist

have been given by decedent where ing prosecutions and the time in

the executors had their own counwhich yet other prosecutions might

sel, and it could not be said that be brought in a manner which was

the services rendered were necesharmful to the defendant, when it

sary to the estate.....

472 had been testified to that an information had been made for for AUTOMOBILES. gery


See also Damages; Licenses; Motor A rule to compel an attorney to file a

Cars; Negligence; Replevin. warrant of attorney authorizing A license to operate a motor vehicle him to enter suit was discharged

on the highways of Pennsylvania where suit was entered


may be issued to a person who has names of co-payees on a promissory

lost his arm or any part thereof. note in that the attorney repre

provided such person has satisfied sented one of the payees who was

the State Highway Commissioner of not obliged to obtain the consent

the propriety of

giving him of his co-payee to enter suit to en

license force his rights. The law gave him

Plaintift, а passenger in one of dethat right, even against the wishes

fendant's taxicabs, was injured by of the other

204 a collision with a rapidly moving Where the rules of Court require that

truck, and recovered а verdict all agreements of attorneys touch

where the evidence showed that the ing the business of the Court shall

collision could have been avoided be in writing, otherwise they shall

had defendant's chauffeur had his be considered of no validity and

car under control and looked and during vacation period judgment

watched for approaching vehicles.. 131

... 563



Page. Subject.

Page. The Act of June 30, 1919, P. L. 702,

of May 3, 1909, P. L. 423, that sodaregulating motor vehicles, is an ex

water apparatus is not the property ercise of police power of the State.

of the occupant of the premises... 551 Its regulations are reasonable and apply uniformly to all

persons, BANKRUPTCY. whether natural or artificial, so that a corporation organized under

When a party consents to the juristhe General Incorporation Law of

diction of the bankruptcy court and 1874 to "buy, sell, handle, lease,

the matters in dispute are adjudicated there

the repair, build and deal in all kinds

common pleas of automobiles' must take out

court has no jurisdiction in a later

action license to buy and sell used

involving the cars

same parties Its charter does not exempt it from

and subject matter..

53 the requirements of the Act... 190 Where defendant was declared

а Section 29 of the Motor Vehicle Act

bankrupt, a judgment still remains of June 30, 1919, P. L. 678, pro

a moral obligation though not viding that no person shall be con

lcgal one, and rule


have it victed of exceeding the speed limit

marked satisfied of record

modiof one mile in two minutes except

fied SO as to read discharged by on the evidence of two witnesses,

reason of

bankruptcy absolute. applies only to where the speed is

Such a judgment may be revived taken over a measured stretch of

by a new promise to pay..

277 road


A creditor in a bankrupt's estate, who The Automobile Division of the State

with the consent

the trustee Highway Departinent may assign a

prosecuted a claim under the name maker's number or an engine num

of the trustee, and with the consent ber only in case application is made

of the other creditors, was entitled for the registration of the car under

to deduct the

necessary Section 3

expenses, of the Act of June 30,

costs and counsel fees from the 1919, P. L. 702. After numbers

fund recovered prior to have been once

filing his obliterated, this is

account with the referee, The law the only method that can be pur

does not require him to sued so

pay over as to buy or sell such a

the entire amount and then come car


knocking at the door of the estate By sections 26 and 33 of the Act of

for a repayment of his just share.. 794 June 30, 1919, P. L. 678, refusing to stop a motor car is defined and

BANKS AND BANKING. made punishable by fine to be collected by process of summary con

See also Bills and Notes. viction, subject to the right of the

As between a defendant in an attachaccused, at his option, to be tried

ment execution and a bank served by a judge of the court of quarter

as garnishee, the latter could effect sessions, rather than by the magis

payment of overdrafts by setting trate, upon entering security; but

them off

against or applying to this gives no general jurisdiction

them the deposits as nade subseto the quarter sessions to be exer

quent to the service of the writ, cised by indictment

300 but it could not ignore the writ ex

cept at its peril, and when it perAUCTIONEERS.

mitted defendant to overdraw his The Act of June 26, 1873, P. L. 332,

account for varying advances, the repealed the Act of April 9, 1859,

bank waived its rights and was P. L. 435, in so far as the Act of

liable to the execution plaintiff. 22 1859 authorized

Governor to

The cashier of State bank, incorissue commissions to auctioneers... 14 porated under the Act of May 13,

1876, can, at the same time, hold AWARD.

the office of secretary of a buildSee Arbitration, Viewers, Workmen's

ing and loan association..

239 Compensation.

Where a bank discounted a draft and

credited the proceeds to the draw

er's account, it acquired a title that B.

would enable it to recover the proBAIL.

ceeds of the draft after payment See also Principal and Surety.

by a foreign attachment, and the The cash deposited under the Act of

fact that the proceeds had been May 1, 1919, P. L. 102, is "in lieu''

immediately attached by the payee of other bail and means in place or

in the hands of the collecting bank stead of the bail theretofore re

on another foreign attachment quired by law, which was a recog

naming the original drawer as denizance to appear and answer the

fendant would not defeat the bank's charge preferred, and nothing more.


433 Defendant was entitled to have the

It cannot be accepted as a fixed rule cash deposited with the clerk of

that crediting the account of a cuscourts returned on the imposition

tomer with checks, drafts, etc., deof sentence in a case of fornication

posited in the ordinary course of and bastardy

330 business does not vest title thereto

in the bank. Each case is dependBAILMENT.

ent upon its facts.

436 See also Interpleader, Replevin,

The Commonwealth has no right to A judgment creditor can attach goods

tax National and State banks enbelonging to the judgment debtor

gaged in fiduciary business under in his own hands, and can success

authority of the Federal Reserve fully defend in an action in replevin

Act and the Act of July 17, 1919, brought on a bailment lease issued

P. L. 1032, as trust companies against the bailee and prior to his

under the Act of June 15.

1907, execution for the same goods but

P. L. 640, and impose upon the vawhich replevin writ had been

lue of their capital stock a tax of stayed This was not an adjudica

five mills

763 tion as to the title of the goods. On

feigned issue the judgment BASEBALL. creditor, who was in possession, was entitled to

See Injunction, Sunday. verdict for his claim as against the bailor..

228 One who leases from another and

BASTARDS. sublets becomes a landlord, and

See Criiminal Law, Illegitimate Chilshould have notice, under the Act




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