Page images
PDF
EPUB

Co., 42 Pa. C. C., 83, wherein it is stated, inter alia: "A lien for repairs vests no property, either general or special, absolute or qualified, in the workman. Such a lien is a mere security of the debt, just as distress is a mere security for the rent. When a landlord gets the security of a replevin bond, he can ask no more. As to the effect of the Act of 1901 on the practice in replevin, we adopt Judge Barrett's language in the case cited: "The meaning of Section 6 is unmistakable. It declares plainly that a lienor is entitled only to equity, and

present, where no fixed value had been agreed on, to use the claim-property bond as a mere instrument of extortion. The principle underlying Section 6 of the Act of April 19, 1901, P. L. 88, has been long established in England, and in proper cases our own courts have not hesitated to grant specific relief in equity. Morris on Replevin, ed. 1878, 241.' Now, June 24, 1915, the rule is made absolute.

equity is satisfied when the debt which Common Pleas--Equity.

is the foundation of his lien is paid and secured. The conditional verdict provided for is a time-honored mode of administering equitable principles in our commonwealth. Its effect, therefore, is to establish that the right of the lienor is analogous to the right of the distrainor of the old law. We incline to the opinion that this is merely declaratory of the old law, but if we should err in this regard, and it should be held that, under the law prior to 1901, the lienor had a right to file his claim-property bond, we are clearly of opinion that the Act of 1901 repeals it, and that under it the lienor has no right to file a claimproperty bond. The filing of it is a mere nullity, and the defendant's duty is to surrender the goods under the writ of replevin to the rightful owner thereof, and he must look to the replevin bond as his legal security for the amount claimed by him. There is nothing in Section 7 which modifies this conclusion. Its initial words show that it refers to a proceeding in which the title of the property itself is in dispute, and it is only in such a case that the returno habendo issues; where, as in the case before us, the plaintiff's exclusive title is admitted, there can be no such issue, and a verdict would be merely useless. In short, our conclusion is that, in the case of a lien for repairs, Section 6 denies to the tradesman the right to file a claim-property bond, and that Section 7 does not cover such a case, but refers only to cases where the title itself is in dispute. To hold otherwise would enable the tradesman in a case like the

[ocr errors]

Sweigart v. Sweigart. Partnership-Accounting-Receivers. See ante, page 227.

Bill in equity to dissolve partnership, etc. Exceptions to opinion of Court. C. P. of Lancaster County. Equity Docket No. 6, page 42.

Chas. W. Eaby, for plaintiff and exceptions.

H. Edgar Sherts, for defendant.

July 3, 1915. Opinion by HASSLER, J.

The third exception questions the correctness of our refusal to find the first fact requested by the plaintiff. We probably should have explained this refusal.

The request is: "1. That on March 20, 1911, Amos F. Sweigart sold to S. F. Sweigart the one-half interest of, in and to the S. G. Manufacturing Company, located at Gordonville, Pa." is the exact language contained in the third paragraph of his bill.

This

His testimony does not prove this fact. He testified that he only sold to the defendant "the one-half interest in the machinery, the material and goods that were inside the building of the S. G. Manufacturing Company for $1,500."

The fact we are asked to find is, that the defendant purchased an interest in the business. The testimony does not

show a sale of any interest in the business, but only of the machinery, material and goods. We, therefore, could not find the fact as requested.

We did not until now observe that we failed to answer the plaintiff's request for finding of law, though our whole opinion is an answer to it. This request is: "The Court is respectfully requested to find as a matter of law that a receiver should be appointed to take charge of the assets of, and to wind up the business of, the S. G. Manufacturing Company." We now refuse it.

We think no error was committed by us as pointed out in the exceptions filed, and we therefore dismiss them. Exceptions dismissed.

[blocks in formation]

Bill in equity. Exceptions to findings of court. C. P. of Lancaster County. Equity Docket No. 5, page 449.

F. Lyman Windolph and J. W. Brown, for plaintiff and exceptions.

case. His testimony is of a conversa

between his mother, Maria Schwebel, and Peter N. Wohlsen, the defendant, who is now deceased. He testified that Anna S. Wohlsen, widow of Peter N. Wohlsen, was present when this conversation took place.

The Act of 11 June, 1891, P. L. 287, Sec. 1, provides that a surviving party shall be a competent witness to any relevant matter, although it may have occurred before the death of the other party "if, and only if, such relevant matter occurred between him and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living or competent person."

In Roth's Estate, 150 Pa., 261, it is decided that a surviving party is a competent witness only if the living witness has been called, and then only as to such matters as he has testified to. To the same effect, see Aclin v. McCalmont Oil Co., 201 Pa., 257; Montelius v. Montelius, 209 Pa., 541; Wright v. Hanna, 210 Pa., 349.

Anna S. Wohlsen was called as a witness in this case. She was not asked

about, nor did she testify of any conversation between his mother and Peter N. Wohlsen. Charles Schwebel was, therefore, not made a competent witness to

do so.

Nor can he for the same reason be S. R. Zimmerman and E. M. Gilbert, permitted to testify in rebuttal as to for defendant.

what was said at the home of Peter N. Wohlsen, as Anna S. Wohlsen said she

October 16, 1915. Opinion by HASS- did not hear what was said on that

LER, J.

We have examined the numerous exceptions filed to our findings of fact and conclusions of law, and are not convinced that we committed any error, and we therefore dismiss them.

On the argument of the exceptions it was strongly urged that we erred in disregarding the testimony of Charles Schwebel, one of the plaintiffs in the

occasion. We ruled out this offer, and we think no error was committed in doing so. Anna S. Wohlsen said she did not hear what was said, and even though she had, she did not testify to

any such conversation.

We direct counsel to prepare a decree in accordance with the Equity Rules.

Legal Miscellany.

Curious Cases.

STATE V. WM. LINKHAW.

Supreme Court of North Carolina, 1873.
(69 N. C., 214.)

Indictment for misdemeanor, tried before RUSSELL, J., at Robeson Superior Court, Spring Term, 1873.

Defendant was indicted for disturbing a religious congregation. The evidence as detailed by several witnesses was substantially this:

Defendant is a member of the Methodist Church; he sings in such a way as to disturb the congregation; at the end of each verse his voice is heard after all the other singers have ceased. One of the witnesses, being asked to describe the defendant's singing, imitated it by singing a verse in the voice and manner of defendant, which "produced a burst of prolonged and irresistible laughter, convulsing alike the spectators, the bar, the jury, and the court."

It was in evidence that the disturbance occasioned by defendant's singing was decided and serious; the effect of it was to make one part of the congregation laugh and the other mad; that the irreligious and frivolous enjoyed it as fun, while the serious and devout were indignant.

It was also in evidence (without objection) that the congregation had been so much disturbed by it that the preacher had declined to sing the hymn, and shut up the book without singing it; that the presiding elder had refused to preach in the church on account of the disturbance occasioned by it; and that on one occasion a leading member of the church, appreciating that there was a feeling of solemnity pervading the congregation in consequence of the sermon just delivered, and fearing that it would be turned into ridicule, went to the defendant and asked him not to sing, and that on that occasion he did not sing.

It also appeared that on many occasions the church members and authorities expostulated with the defendant

about his singing and the disturbance of it. To all of which he replied: "That he would worship his God, and that as a part of his worship it was his duty to sing."

Defendant is a strict member of the church, and a man of exemplary deport

ment.

It was not contended by the state upon the evidence that he had any intention. or purpose to disturb the congregation; but, on the contrary, it was admitted that he was conscientiously taking part in the religious services.

Defendant prayed the court to instruct the jury that if the defendant did not intend to disturb the congregation he was not guilty.

This instruction his honor refused, and, among other things, told the jury that it would not excuse the defendant to say that he did not intend to disturb the congregation.

The question is, Did he intend to commit the act which did disturb the congregation? The jury must be satisfied that there was an actual disturbance occasioned by the defendant's act. It is a general principle that every man is presumed to have intended the necessary consequences of his own act.

There was a verdict of guilty, judgment, and appeal by the defendant. [The attorney's names are omitted.]

SETTLE, J. The defendant is indicted for disturbing a congregation while engaged in divine worship, and the disturbance is alleged to consist of his singing, which is described to be so peculiar as to excite mirth in one portion of the congregation and indignation in the other.

From the evidence reported by his honor who presided at the trial, it appears that at the end of each verse his voice is heard after all the other singers have ceased, and that the disturbance is decided and serious; that the church. members and authorities expostulated with the defendant about his singing and the disturbance growing out of it, to all of which he replied that he would worship his God, and that as a part of his worship it was his duty to sing. It

is further in evidence that the defendant was a strict member of the church, and a man of most exemplary deportment.

"It was not contended by the state upon the evidence that he had any intention or purpose to disturb the congregation; but, on the contrary, it was admitted that he was conscientiously taking part in the religious services." This admission by the state puts an end to the proposition. It is true, as said by his honor, that man is generally presumed to intend the consequences of his acts; but here the presumption is rebutted by an admission by the state.

[ocr errors]

ployees of a rival newspaper came with efforts to release the boys, but failed, the boys being kept until the defendant. issued its extra after 9 o'clock at night. During the time the boys were assembled there, crying and begging to be let out, they were served by the defendant with sandwiches and ice-cream. All of this took place within the knowledge of the manager of the paper. The Court of Appeals of the State of Alabama allowed the plaintiff a recovery. Birmingham Ledger Company v. Buchanan, 65 Southern Reporter, 667.

It would seem that the defendant is =

a proper subject for the discipline of

the church, but not for the discipline of O. C. OPINIONS AND ADJUDICAthe courts. PER CURIAM.

Venire de novo. -West Pub'g Co.'s Docket.

TIONS.

By JUDGE SMITH.

Decree.

False Imprisonment to Delay the News.

This is an action brought by a newsboy, Alfred Buchanan, against the Birmingham Ledger Company for damages for unlawful imprisonment; the facts being, that during the afternoon and evening of a day when the last Republican National Convention was in session, and when news of the nomination of a candidate was expected, the plaintiff, who was a newsboy about ten years old engaged in selling papers on the streets of Birmingham, went to the place of business of the defendant to get papers to sell. He went into a part of a large room which was the quarters of the circulation department of the defendant paper to wait for his papers, the paper not yet being issued. There was quite a crowd of newsboys in the room, fifty or seventy-five, all assembled, waiting for the papers to come out. Several hours passed and the proposed extra did not come out. In the meantime the newsboys, including the plaintiff, tried to leave before the extra was issued, but were not permitted to do so. The door of the room was locked and they could not get out, the object of keeping the boys being to keep them from selling papers other than the defendant's. Em

Thursday, October 7, 1915.

Estate of M. G. Gibble, deceased. Account confirmed as corrected.

Thursday, October 14, 1915.

Adjudications:

Susan C. Woods, Salisbury.
Susanna Shabach, Denver Boro.
Benj. F. Henry, Conestoga.
J. Hoffman Hershey, E. Hempfield.
Opinions:

Estate of Elias Brackbill, deceased. Exceptions dismissed and adjudication. confirmed absolutely.

Estate of Jeff Miller, deceased. Exceptions dismissed and adjudication confirmed absolutely.

Thursday, October 21, 1915.

Estate of John L. Killinger, deceased. Exceptions dismissed and adjudication confirmed absolutely.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
« PreviousContinue »