Vol. I.]

DIGEST OF CASES.

[No. 3.

substantial conformance to the laws and ordinances relating to such matters, the court will not use the writ of mandamus, which is a discretionary writ, to compel the acceptance of the next bidder. People v. Green, Daily Reg., March 7, 1874.

CORPORATIONS.

See BANKRUPTCY.

COURT-HOUSE.

See EXECUTION SALES, 1.

DAMAGES.

See ATTORNEYS, 2.

DICTA.

See SUPREME COURT.

DOMICIL.

1. WILL.The decedent, Dr. Gibson, executed a will in Rhode Island, in 1865, being at the time domiciled in that State. In 1867, being in Philadelphia, he published another will, which, after his death, was admitted to probate in Philadelphia. Upon an appeal from the register granting probate of said will, upon the ground that, at the time of the execution of the will in Philadelphia, Dr. Gibson's domicil was in Rhode Island, and that the will, not being executed according to the laws of that State, was void; and further, that the register in Philadelphia had no jurisdiction of the matter; the register's court sustained the Philadelphia will, holding that the testimony showed that his domicil at the time was Philadelphia. Upon appeal, this decision was reversed, the supreme court holding, that from the testimony it appeared that his domicil was in Rhode Island, and not in Philadelphia, at the time of execution of the Philadelphia will. Carey's Appeal, Leg. Gazette, March 6, 1874.

2. Residence, and the intention of making the place a home of the party, constitute a domicil. The residence of the testator in Philadelphia, not being of the character required, his domicil was not in that city. Ib.

EJECTMENT.

QUARANTINE.

PRACTICE UPON DEATH OF DEFENDANT. - DOWER. Where in an action of ejectment against a party whose title has been vested in the plaintiff by an execution sale, such party dies during the pendency of the action, and his widow, who is entitled to dower and quarantine, is made a party defendant, the suit may proceed to judgment for plaintiff, and the rights of the widow will be secured by ordering_a stay of execution until dower is assigned. Kane v. McCown, Cent. L. J., March 5, 1874.

ESTOPPEL.

See PRACTICE.

Vol. I.]

DIGEST OF CASES.

[No. 3.

EXECUTION SALES.

1. COURT-HOUSE. Where the regular court-house cannot be used, and another building at the county seat is procured, in which the circuit court holds its session, execution sales made at such building are valid, and would be invalid if made at the deserted court-house. Kane v. McCown, Cent. L. J., March 5, 1874.

2. BY SHERIFF AFTER EXPIRATION OF TERM OF OFFICE. Where a sheriff who has made a levy of an execution goes out of office, by reason of the expiration of his term, he has the power to retain the execution and proceed to advertise, sell, and make a deed to the property levied upon, or he may turn the same over to his successor; and a sale made by either officer is valid. lb.

3. IF COURT NOT HELD AT RETURN TERM. Where a sale is not made at the return term of an execution which has been duly levied, by reason of no term of court being held, the execution does not become functus officio, and the sale may be made at any subsequent term of court without any writ of venditioni exponas. lb.

EXECUTORS AND ADMINISTRATORS.

1. CONFEDERATE BONDS. An investment by an executor in Confederate bonds, made during the war, by authority of a probate court in Alabama, was illegal, and he can be compelled to account to the legatees for the money so invested. Horn v. Lockhart, Leg. Gazette, March 6, 1874.

2. FOREIGN EXECUTORS. Since the act of April 8, 1871, a foreign executor can transfer stock, and the company is not obliged to see that the will gives the executor the power to assign or dispose of the stocks; it is to be presumed that it does. Williams v. The Pennsylvania R. R. Co., Leg. Int., March 6, 1874.

3. ACCOUNTS. Administrators being jointly liable for the estate committed to them, and their account being their settlement with those interested in the estate, disputes between themselves about their respective services and compensation, or about their several receipts and expenditures, are no proper part of such an account, and cannot be allowed to embarrass the settlement thereof. Estate of Dickson, Pittsb. L. J., March 4, 1874.

4. When administrators pay a claim according to a settlement made by the intestate, and the auditor finds that he was mentally incompetent to make the settlement, and disallows the payment, his decision will be reversed where the evidence shows only feebleness of mind and body and no symptom of insanity, and there is no evidence of fraud or undue influence. Ib.

5. But in cases of serious importance the court will seek to avoid injustice by correcting errors, even when they are defectively assigned. Ib.

6. The exception in such a case ought to be to the auditor's finding of fact, and not to the inference from it, that the payment is disallowed. 16.

Vol. I.]

DIGEST OF CASES.

[No. 3.

FIRE COMPANY.

1. CONTRIBUTING members of a fire company declared to be entitled to a distributive share of the property of the company. Neptune Hose Co.'s Appeal, Leg. Gazette, March 6, 1874.

2. An agreement between two fire companies to merge the two corporations into one, declared not binding upon the members not consenting. Appeal of Fame and Western Hose Companies, Leg. Gazette, March

6, 1874.

FISHING

The right of fishing in a river is subordinate to that of navigation; but this does not excuse the master of a vessel from running into and damaging a net of a fisherman, where he could change the course of the vessel without prejudice to the reasonable prosecution of his voyage, and thus avoid the net. Cobb v. Bennett, Leg. Gazette, March 6, 1874.

FOREIGN EXECUTORS.

See EXECUTORS, AND ADMINISTRATORS, 2.

FOREIGN JUDGMENTS.

When a judgment from another state is sought to be enforced in the courts of this State, it is competent to our tribunals, upon the plea of nul tiel record, to determine whether the court rendering the judgment sought to be enforced had jurisdiction of the person against whom the judgment is rendered, and of the subject matter of the suit. Barnett v. Oppenheimer, Am. Law Rec., March, 1874.

GUARANTY.

INDORSEMENT BY STRANGER.-A note was made by W. to T., and before delivery to T. was indorsed in blank by P. and R., who were partners of W. Held, P. and R. were guarantors, and not successive indorsers. Phalman v. Taylor, Chicago L. N., March 7, 1874.

HUSBAND AND WIFE.

LIABILITY OF WIFE'S PROPERTY TO HUSBAND'S DEBTS. Where the wife's personal property is left for a time under the husband's control, and she afterwards resumes the sole control of the same before it is seized for the husband's debts, it is discharged from liability for the husband's debts, without filing the notice specified in section 2502 of the Revision, and without reference to the fact of its being under the husband's control when the debt was contracted, or of the knowledge of the creditor as to her rights when he extended credit. Miller v. Steele, West. Jur., March, 1874.

INDORSEMENT.
See GUARANTY.

INSOLVENCY.

See SALES, 2.

Vol. I.]

DIGEST OF CASES.

[No. 3.

JUDGMENTS.

1. PAID JUDGMENT. issued upon a judgment which had ers, Pac. Law Rep., March 3, 1874. 2. ASSIGNEE OF SAID JUDGMENT. - W. had a judgment against C., which was the first lien on his property. T., also, had a judgment, which was the second lien on the property. C. paid W.'s judgment in full, but took an assignment of it in the name of his hired man, who paid nothing for it. Afterwards, to avoid an attachment, C. confessed a judgment in favor of L., for a debt previously due him, which became a lien upon the property, and, in order to give L. a preference over T., C. procured an assignment to him of W.'s judgment, for which no additional consideration was paid; but L. was not aware that it had been paid. C. afterwards confessed a judgment in favor of F., which also became a lien on the property. L. afterwards sold the lands on W.'s judgment and became the purchaser. Afterwards F. became purchaser of the same lands under his own judgment. Held, 1. That as to F., L. was not a bona fide assignee of W.'s judgment for a valuable consideration; and that his sale was void. 2. That by his purchase F. acquired the title to the land. Ib. 3. POWER OF ATTORNEY. INCIDENTAL POWERS. L. executed a power of attorney to H. authorizing him to collect his said judgments against C., by sales under execution, &c., to receive the money thereon, "arbitrate or compound" the same, and for that purpose to employ counsel. After the aforesaid sales, F. brought an action against L., to annul the said sales and conveyances to L., as clouds on his, F.'s, title. H. consulted counsel who advised him that the said sales under W.'s judgment after payment were void, and L.'s title invalid. Held, that as incident to the powers expressly given to collect said judgment, arbitrate and compound the same in connection with subsequent instructions from L., by letter, H. had power to authorize counsel to appear in said action and consent to a judgment annulling said sales upon terms that enabled him to realize the amount due to L. on his judgment. Ib.

SALE. A sale of lands under an execution been fully paid is void. Lee v. Rog

See ATTACHMENTS, 3; FOREIGN JUDGMENTS.

1. COHABITATION.

JURISDICTION,

See CONTRACTS.

JURY.

See NEGLIGENCE, 3.

LIEN.

See CONTRACTS, 2.

MARRIAGE.

Neither cohabitation, nor reputation of marriage, nor both, is marriage: when conjoined they are evidence from which a

Vol. I.]

DIGEST OF CASES.

[No. 3.

presumption of marriage arises. Yardley's Appeal, Pittsb. L. J., March 11, 1874.

2. The facts of the case showing only an inconstant cohabitation and a divided reputation of marriage, the claimant was held not to be the wife of decedent. lb.

NEGLIGENCE.

1. KILLING A CHILD. In an action against a railroad company for killing a child two years and two months old, the question as to the position of the child, whether the engineer could see it, and the rate of speed of the train, were properly left to the jury. Phila. & Read. R. R. Co. v. Long, Leg. Int., March 6, 1874.

2. The court below charged that the fact that the child was found in the street affords strong presumption of negligence; but the jury were to consider whether the mother took reasonable care of the child; if she did, it was negligence. Held, correct. Ib.

3. JURY.As a general rule, a question of negligence must be submitted to a jury. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. There is no absolute rule as to what constitutes negligence. Crissey v. Hestonville, &c. Co. Leg. Int., March 6, 1874.

4. MEASURE OF DUTY. Where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, where both the duty and extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult. lb.

5. STOPPING CARS. It is the duty of a railway company to cause its cars to come to a full stop to permit a passenger to get off. Ib.

NONSUIT.

A PEREMPTORY NONSUIT under the act of April 14th, 1846, is such a determination of an issue under the sheriff's interpleader act as will operate to forfeit the bond if the goods be not forthcoming. O'Neill v. Wilt, Leg. Gazette, March 6, 1874.

NUL TIEL RECORD.

See FOREIGN JUDGMENTS.

OBITER DICTA.

See SUPREME COURT.

PARTNERS.

1. AUTHORITY TO BIND OTHERS. - As between the firm and third persons dealing with it in good faith, it is immaterial whether one of the partners is acting fairly with his copartners in the particular transaction or not. If the partner act within the apparent scope of his authority and professedly for the firm, his acts and representations are binding on the