NUISANCE.

1. A frame building two stories high, 59 feet wide by 50 feet deep, having been erected to store lumber in, its further extension was enjoined as violating city ordinance April 11, 1863. Horstman vs. Young, 19.

2. The fact that the existence of such building adjoining complainants' premises increases greatly the danger from fire, and increases the rate of insurance, shows such special damage as will warrant private intervention." Id.

3. As to building already erected, action is reserved by the court till final hear ing on bill and answer. Id.

ORPHANS' COURT.

See PLEADING, 6. REVIEW, 1, 5. DECEDENTS' ESTATES, 9, 19. EXECUTORS
AND ADMINISTRATORS, 11. CONTEMPT, 1.

1. There is no doubt of the jurisdiction of the Orphans' Court, in the settlement of partnership accounts where the decedent was one of the partners, and the sur viving partner is executor or administrator. Est. of John Unruh, 337.

2. The jurisdiction of the Orphans' Court in partition is contined to cases in which the decedent died seized of the estate in respect of which it is asked. If, therefore, his ownership is denied, if a holding adverse to him is set up, it necessarily follows that his title must first be established at law, before further proceedings can be had here. Est. of Eliza T. Davis, 407.

3. But a very different case is presented, where his seizin is admitted, and all that is questioned is whether the person asking for partition is or is not an heir. There is no reason to deny the jurisdiction of the court upon this point. Id.

PARK COMMISSION. See AGENT, 1.

PARTITION. See DOWER, 1, 2, 3. LEGACY, 19. ORPHANS' COURT, 2, 3.

1. Decedent died leaving widow and two children: the children died in infancy. Proceedings in partition were instituted by the collateral heir of the decedent, which proceedings the widow petitioned to have vacated and set aside. Est. of William Lee, 291.

2. Held, That, the widow being originally entitled to a life-interest in one-third the real estate, this was increased by the death of the children to a life-interest in the entire estate, and therefore no partition can be made during her life, and the entire proceedings were void, ab initio. Id.

PARTNERSHIP. See ORPHANS' COURT, 1.

1. Evidence sufficient to authorize the granting of an issue to determine the existence of a partnership. Huston vs. Huston, 183.

2. Claimant and decedent were both members of same firm, and personally liable to firm creditors. Est. of Thos. R. Bennett, 331.

3. Held, that the rights of joint creditors preclude one partner from ranking as a separate creditor of his copartner until the joint creditors are paid in full. Id. 4. The same principle is applied as between a surety and creditor claiming against the estate of the principal debtor. Il

5. Where there is a joint estate and a solvent partner, it is quite clear that the partnership creditors cannot come in pari pass with the separate creditors of the decedent. Id.

6. Whether in Pennsylvania the rule which gives separate creditors priority over joint creditors with respect to separate assets is subject to the qualification established in England is doubtful. Id.

7. Where the share of each partner is not determined by agreement, the law will presume that an equal division of profits is intended. And in such case the.. division of the stock between the partners will be ratably in proportion to their respective advances. Est. of John Unruh, 337.

8. Individual creditors of decedent are entitled to a preference in the distribution of his individual estate over firm creditors where the latter have not shown the non-existence of firm assets at the time of decedent's death. Est. of C. D'Invilliers, 362.

PARTY-WALLS AND FENCES. See INJUNCTION, 2, 3, 4.

PATENTS.

1. Where the commissioner of patents has granted a reissue with an expanded claim, a preliminary injunction will be awarded. Lorillard vs. McDowell, 461. 2. The extensive use of a device, however simple, is evidence of its utility, and consequently of its patentable merit. Id.

PAUPERS.

1. The Quarter Sessions has exclusive jurisdiction of all controversies arising under the poor laws. Moore vs. City, 425.

2. The city of Philadelphia is liable under said laws for the costs and charges for the removal of a pauper. Id.

PILOTS.

1. The board of port wardens has authority to revoke the license of a pilot who deserts his vessel and to order him to refund the compensation which he has received. Virden's Appeal, 151.

2. It is immaterial that the offence was committed at a place where the board has no territorial jurisdiction. Id.

3. Under the act of February 4, 1846, a person may be indicted for acting as a pilot without a State license, and by the laws of New Jersey and Pennsylvania jurisdiction of such acts is given to the State wherein the offender shall first be arrested. Com. vs. Sherif, 446.

4. It is for the jury to determine whether the contract in this case was one of pilotage or towage, and if the latter, if it was a colorable contract only. Id. PLEADING. See PRACTICE, 2. EVIDENCE, 1. AMENDMENT, 1.

1. A plea of set-off, although special in form, should set out the defendant's claim with sufficient clearness as to detail; otherwise a bill of particulars may be required. Reed vs. Church, 58.

2. In an action against a married woman for necessaries, a plea of non assumpsit by the husband and of coverture by the wife will not be received. Darlington vs. Ervin, 127.

3. In a declaration by an executor or administrator it is incumbent upon him to make profert of his letters. The neglect to do so makes the declaration bad on special demurrer. Stewart vs. Dearing, 175.

4. Any unnecessary allegation bearing cruelly upon the moral character of an individual, or which is calculated to bring reproach and contempt upon a person's character, is both impertinent and scandalous. Roulston vs. Ralston, 175.

5. The best test to ascertain whether matter be impertinent is to inquire whether the subject of the allegations could be put in issue. Id.

6. Where the plaintiff sets down a cause for hearing on bill, answer, and replication, without affording the defendant an opportunity to substantiate his answer by proof, the effect is the same as if heard on bill and answer alone, and the answer will be taken as true in every point. Est. of Thos. S. Sterr, 212.

PORT WARDENS. See PILOTS, 1, 2.

1. The city of Philadelphia is not such a riparian owner as to warrant the granting of a license to the municipality by the board of port wardens to build or extend a wharf at the foot of a street, where the fee in the land within the lines of such street at that point is not owned by the city, but by the owners and occupiers of the land fronting on either side of such street. Crump's Appeal, 16. 2. Whether a right could be successfully set up to use the names of the riparian owners to the use of the city, not decided. Id.

3. Act of April 8, 1868, P. L. 755, as to the powers and duties of port wardens, examined. Id.

4. In a proceeding under the act of April 6, 1850 (P. L. 371), to establish wharf lines on the river Schuylkill, after the plans have been made by the board of surveyors and approved by the board of port wardens, objections thereto before Parties using the river for comthe court can only be made by riparian owners. mercial purposes have no status. In re Port Wardens' Line, 453.

POWERS.

1. Distinction between a grant for life with power of appointment by will and a general grant with like power. In the latter case the gift is construed as conferring the absolute property, and the power is regarded as nothing more than an anxious expression of the donor that the donee may have an uncontrolled power of disposing of the property. Est. of Jucob Shallcross, 374.

2. And even where the limitation is for life, if the power of appointment is unlimited and not subject to any discretion on the part of the trustee, the donee is regarded as the absolute owner, though there be a limitation over in default of appointment. Id.

PRACTICE.

See REPLEVIN, 2. EXECUTION, 2, 3, 7. CAPIAS, 1. MANDAMUS, 1. EQUITY,

PRACTICE-(Continued).

2, 3, 4, 5, 6. ATTACHMENT, 2. DECEDENTS' ESTATES, 9.
GUARDIAN AND WARD, 7. WITNESS, 2.

AUDITORS, 1.

WAGES, 3.

REVIEW, 2, 3.
AUDITORS, 3.

1. A judgment non obstante veredicto will not be entered except a question has been reserved. City vs. Donath, 4.

2. On a motion to amend plea, the court will not consider, as upon a demurrer, the plea proposed for substitution. Miller vs. McDonald, 27.

3. After testimony has been taken before an examiner, and closed, the defendant will not be allowed to reopen his case and present further testimony before the master. Freeman vs. Stine, 28.

4. After plea pleaded, the attorneys of the parties maintaining the issue cannot be required to file warrants of attorney. Sheets vs. Whitaker, 29.

5. Approval of surety. Whitesides vs. Vickers, 32.

6. Production of papers at trial-Answer to affidavit. Bickford vs. Ice Co., 67. 7. The prothonotary may assign to a suit about to be brought a number in the court which then has the current business, although the proceedings are not actually begun till after the thousand cases allotted to that court are exhausted. Freach vs. Railroad Co., 187.

8. The court will not disturb a referee's findings of fact where they are based upon testimony actually in the case, though it may be conflicting, any more than it would the verdict of a jury because of a conflict in the testimony submitted. Adleman vs. Steel, 529.

PRIVILEGE.

1. The constitutional privileges from arrest granted by Section 15, Article II., of the constitution of Pennsylvania, can only be claimed in cases of civil restraint. Com. vs. Keeper, 573.

2. Members of the general assembly, when charged with crime, have no privileges above other citizens. Id.

PROBATE. See REGISTER OF WILLS, 1.

PUBLIC OFFICERS. See NEGLIGENCE, 2, 3.

RAILWAYS. See NEGLIGENCE, 1. CONSTITUTIONAL LAW, 1.

1. The Pennsylvania Railroad Company has the same power to construct branch roads from the main line purchased in 1857 as from her original line under the act of 1846. MITCHELL, J., dissents. Duncan vs. Railroad Co., 68.

2. With the consent of the city, under the act of 1874, she may longitudinally appropriate any street to the construction of a branch road. Id.

3. The request of the railroad company for the assent of the city is in law an acceptance of the present constitution of the State. Id.

4. By virtue of the acceptance, a citizen can recover compensation for any injury to his property sustained by the construction of a branch road in a public street. Id.

5. A law imposing upon railroad companies a liability for consequential damages caused by the construction of their works applies to corporations which received their charters before the passage of the law, such legislation having relation to remedies only, and not being within the constitutional prohibition as to laws impairing the obligation of contracts. Id.

6. It is settled in Pennsylvania that a private citizen may prevent the construction of a street railway, provided he can show first, special damage to himself, and secondly, that the railway company has no authority to construct the proposed road. Shipley vs. Railroad Co., 128.

7. Under the act of April 13, 1846, sect. 17 (P. L. 312), and the act of April 12, 1864 (P. L. 396), extending the provisions of the said 17th section of the act of 1846 to the defendants, the Philadelphia and Reading Railroad Company have the power to make lateral or branch roads leading from the main line to points in either of the counties into or through which said main line may pass, and to appropriate so much of the land to be crossed by such branch as may be necessary to the full enjoyment and exercise of the power so granted to them by the legislature. If, in the exercise of this grant, they cause damage to the owners of the land, the law provides them with a remedy for the recovery of that damage. French vs. Railroad Co., 187.

RECEIVERS.

Where trust property consisting of coupon bonds or other property not ear

RECEIVERS (Continued).

marked with the trust is in the hands of a de facto trustee, or custodian by the mere agreement of the cestuis que trustent, and the latter become dissatisfied, and file a bill for account and distribution, the court will appoint a receiver, although no fraud or misconduct of the de facto custodian is established. Trust Co. vs. Huber, 52.

RECOGNIZANCE.

1. A recognizance in a criminal case need not be in writing. It may be a mere verbal acknowledgment before an officer authorized to take it or the court. Com, vs. McHenry, 451.

2. In a suit on a recognizance, where defendant alleges in his affidavit of defence that he only signed the bond for $1,000, and that it has since been altered to $2,000, the commonwealth may take judgment for $1,000. Id.

BEFEREES.

The local referee act of March 23, 1870, and its supplement of June 23, 1871, applicable to Luzerne county, were not repealed by the general referee act of May 14, 1874. Adleman vs. Steel, 529.

REGISTER OF WILLS.

The register of wills is a judicial officer. His decision is not questionable collaterally, and after five years probate is conclusive. Frey vs. Klebe, 99. REMAINDER.

See LIFE-TENANT, 1. CONVERSION, 5. DECEDENTS' ESTATES, 13. DEVISE, 4, 5. LEGACY, 11, 12.

1. The testator devised certain real estate in trust for his wife during life or widowhood, and at her death or remarriage he directed that the same should be sold by his executor, and that "the net proceeds thereof be equally divided among my children then living, and the child or children of such as may be deceased, in such manner that the child or children of such as may be deceased will receive the share that their parent or parents would have received if living." The widow elected to take against the will, and by petition to the Orphans' Court, which was concurred in by the children, all of whom are sui juris, asked that a sale of the property might be decreed for the purposes of immediate distribution. The court held that the interests of the children were contingent and must await the happening of the event contemplated by the testator, and refused the petition, Est. of Timothy Callahan, 230.

2. Where there is a gift to certain persons, to take effect upon a contingency which inevitably must occur, the interest is vested, and the payment is postponed until the contingency takes place, and is deferred only to let in the prior life. estate. Est. of John Pechin, 323.

3. The acknowledged rule by which to determine if an interest given be vested or contingent is, to ascertain, from a proper construction of the will, whether the testator meant to annex the time fixed by him to the payment of the legacy or to the gift itself. Id.

REMOVAL OF CAUSES.

A corporation chartered by the United States is neither an alien nor a citizen, and hence a suit in which it is a party may be removed from a State court to a Federal court at any time before trial or final hearing. Eby vs. Railroad Co.,

161.

REPLEVIN.

1. Whether the statute of 17 Charles II., c. 7, whereby, in replevin for goods levied on as a distress for rent, the rent in arrear and the value of goods can be found and a fi. fa. issued, is or is not in force in Pennsylvania, still its provisions seem to be recognized as part of the common law of Pennsylvania. Rosenthal vs. Lehman, 1.

2. In an action of replevin, security for costs will be required from a plaintiff residing in another State, in addition to the bond ordinarily filed in such suits. Howard vs. Herbert, 32.

3. A failure of the constable to set apart property under a claim of the exemption law is not a defence in replevin for goods distrained for the rent. Lloyd vs. Underkofler, 160.

4. In replevin, where the plaintiff's pleas deny the tenancy, the avowant must prove either a demise to plaintiff, or to one under whom plaintiff holds posses

REPLEVIN-(Continued).

sion, or show title, superior to plaintiff's possessory title, either by tracing title from the commonwealth or from a source common to both parties. Myers vs. Gowen, 162.

t

REVIEW. See LEGACY, 10.

1. Under the act of October 13, 1840, relating to bills of review in the Orphans' Court, actual distribution by the executor is no bar to the proceedings when the object is to effect a surcharge. Est. of Patrick Duffy, 216.

2. A petition for a review, unless presented promptly, must show error on the record, or matter arising since the decree. Est. of M. Cremers, 253.

3. If the answer to a petition for a review is responsive, it will be taken as verity until overcome by evidence. Id.

4. A petition for a review which alleges that the petitioner was not present at the audit and had no knowledge of it, and shows errors apparent on the record, is directly within the act of October 13, 1840. Est. of Bridget D. Costigan, 264.

5. The power of the court to correct its decree in case of fraud, accident or mistake, is not restricted or taken away by the act of October 30, 1840. Est. of Elizabeth H. Hattrick, 275.

6. After the absolute confirmation of an adjudication, errors either of law or fact can be corrected only upon a bill of review. Est. of Wm. Wainwright, 371. 7. Amendment of adjudication-Petition in the nature of a bill of reviewInterest on award during the pendency of exceptions to the adjudication refused. Id. 8. An amendment of an error apparent on the face of the record will not be permitted after seven years from final decree. Est. of John A. Bauers, 391. RIPARIAN OWNERS. See PORT WARDENS, 1, 2, 3.

SET-OFF. See PLEADING, 1.

1. A bank may retain money in its hands on deposit as set-off against notes of the depositor held by it not matured at the date of the assignment. Greene vs. Bank, 146.

2. The act of March 3, 1797, does not contemplate the adjudication of any sum against the United States. A defendant who is sued by the United States is not entitled to a finding in any form of a sum due him by the United States in excess of the claim for which he was sued. Schaumburg vs. United States, 466.

SHERIFF'S SALE.

1. Where properties are advertised by the sheriff to be sold separately they cannot be sold as one property. Norris vs. Adams, 111.

2. The general rule is, that interest on all incumbrances which are divested by a sheriff's sale, ceases on the day of sale, and on the day of the confirmation of the sale in the Orphans' Court. But where interest is paid by the purchaser pending litigation, the interest so paid is allowed on all liens reached by the fund, up to the time when the interest on the purchase-money actually ceases. Est. of Mary P. Snider, 560.

SHERIFF'S VENDEE. See EXECUTION, 1.

STATUTE OF FRAUDS.

A promise by decedent to be answerable for certain articles loaned to decedent's son (the accountant), which, although demanded, were never returned, is within the statute of frauds. Est. of Jas. Hollowbush, 217.

SUBROGATION.

The principle which governs in all cases of substitution is one of equity merely, and is to be carried out in the exercise of an equitable discretion, with a due regard to the legal and equitable rights of others. As subrogation is purely an equitable right, we ought to deny it in all cases where its exercise would produce injustice. Cassidy vs. Keely, 112.

SUPERSEDEAS. See ERRORS AND APPEALS, 1, 2, 3.

SURETY.

1. A bail bond having been forfeited, the surety employed counsel to procure a remission of the forfeiture. Held, that he could recover from the principal the fees paid by him for these services. Abeles vs. Mitchell, 81.