1 Legal Op. 1 (1870-1871)

handle is hein.journals/legop1 and id is 1 raw text is: RE.A..i                          STAT'A                                       D T               S~TANC                                               CTLLETI                              ..
VOL. 1.                                        HARRISBURG, PA., SATURDAY, NOVEMBER 5, 1870.                                                                                   NO. 1.
+           favor of the defendant on the reserved cluded.  In the present case notice on Deceiober, and the lease to expire on the  RECENT LAW     DECISIONS.
po                         ntu it is fair t                 the first of January to leave the premises 25th of March-of course be at an end
pIn e      this statuere- on the first of April was too late.         The  at midnight of the 24th of March, and           CO3DION CARRIERS.
T DEVERY  TURDAY      sume tat the Legislature intended to notice should have been served on the   the laIndlod coulrd pcee dthe net day---  Liabilt s uBa    q ef Passengers.
PUBLISHED EEYg-        RA         adopt it with all of the subtleties and rc- 31st of December. It must be three the2t.Oroion            emnsu-W          reapsngrpnthdfnat'
At No. 34 Nortini Tird Street. finements established in its construction  months prior to the expiration of the changed. There is nothing to prevent railroad, having his valise checked to a par-
SIEG    &  MORGN,              by the English courts, where it had been time.  We do not consider the proceed- this landlord from proceeding under the  ticular station, on the arrival of the cars
in force since the reign of Charles the ing on the 1st was commenced prema- act of 1772 to regain possession.  See at that place, left the vilise in theopen de-
EDITORS    AND   PROPRIETORS.       Second.  The law has in several cases re- turely, as the lease expired at midnight Logan vs. Herron, 8 S. & R. 459.  pot, after seeing it placed where baggage
Srmans if ~ceived the commendation of our Supreme on the 31st of March, but that shows the                         JNO. J. PEARSON.        was usually kept during the day, in the
Court.  But I beg leave to enter my necessity of one day's earlier notice.                                           h     f               f th
One Copiy, oe y.                    00 humble protest against its practical work- toWe have been referred to what is said                                  ithout giving any directions, or making
Six Copies,               ...... 15 00 ing in Pennsylvania.  In not one in- to be a newspaper report of a decision by In the Orphaus' Court of Dauphin Co.anythoutgivintgreny ecire
ADVER'.TISING RATES:         stance, to my knowledge, has its aid been Judge AgneV  on this question.  But I                                        presen  t    r ec o  all f  his vt-
One Square, one insertion........s$ 1 00 invoked except tocover a case of'iani- the case asureported is so contradictory IuSEPTEMBER TERM    18.wet1fu husa
One. Square, one year .............20 00 fest frud whre b t h.prms.ndta       t.sntprbbe h           ugeee             EPiSE T~,169.
One-half Column, one insertion. 7 00   ,ruw~r         oute             n    hti    sntteee                                                              wards: -Held, That he was guilty of ne-
One Column, one inserti1on.........1200 consideiation were so clearly proved as to made it in that form. The paper says IN  THE  MATTER  OF THE    AP- gligence; and that the company was not
Lawyers' Cards, one year, including    leave no room for doubt,.or the slightest the term ended on the 24th of March, and  PRAISMENT  OF DANIEL WIT- liable for the       loss of the valise by
sabscription to the paper.......... 10 00 reason to suspect perjury; and in looking that service on the 25th of December was  MER'S ESTATE TO HIS WIDOW. theft during the interval : Holbridge v.
Liberal Deductions made to yearly advertisers. over the reported  decisions of other in time, but again it says that the Court                            The Utica and Black Riocr- Railroad
States there is strong reason to infer that held it had not fully ended until the 25th. The Widow can retain $300 in real or per- Company, 56 Barb.
it has generally had the same effect there. The usual rule as to excluding one day  sonal estate; but she cannot compel the
*            Our people had transacted their busi- and including the other is there recogi  legal representative to sell property so as  CRIMINAL LAW.
ness for one hundred and fifty years with- nized.  We think it probable that the  to give her $300 in money.         Accomplices.-Although the testimony
DAUPHIN COUNTY COMMOT PLEAS. out its aid, and with the careful guards dates are transposed-the lease expired The only question presented in this of accomplices, uncorroborated, should
thrown round the promise to pay the debt on the 25th of March, and the notice case relates to the power of the widow to be received with great caution, yet if the
JONAS.ALLWINE,                of another by judicial decision, there was served on the 24th of December.-  require the sale of the personal property jury find a verdict of guilty upon much
vs.                   were few cases where unfounded claims The same rule as to computation is found  of the decedent in order to raise for her evidence, the court cannot f6 tAt reason
GEO. GARBERICH, SR.,            were established.  Promises and verbal in our last book of reports-10 P. F. three hundred dollars in money, instead set'it- aside: The Peopip v h-etiton, 56
Executor of Geo., Garberich, Jr., dec'd. contracts were confided in, and many SO2ith, 452.  This point is fatal to the of taking the goods to that amount:  Barb.
important arrangements made on the faith proceeding.  The alderman gives judg-  Under the Act of the 14th of April,   Burglary-Indictment- Evidence.-
155,Nov.Ierm, 1866.           of oral statements, or writings in which ment for fifteen dollars and costs, besides- 18.51, the widow could only retain real or Under an indictment for burglary, the
erdict in favor ofPlff. Points reserved. the.consideration and contract, were not the delivery of possession.  He does not personal property belonging to the dece- prisoner may be convicted of an attcmpt
for Defendant      fullysetforth. No man can safely bargain state that the sum, is for damages su&- dent to the amount of $300.  The Act to commit the crime charged in it: Id.
LA   ERTONforef         .       in Pennsylvania now without having a law- tained  This should appear from the of April 8th, 1859, authorizes the widow  Evidence competent upon the question
KUNKEL for Plailiff.           yer at his elbow to draw up the writings. record.  For aught that appears it might and children to elect to retain the three of guilty, or not guilty, of the burglary
1. Parol evidence not admissible to explain Laws should be adapted to the habits of be for a debt due, or for rent withheld. hundred dollars, or aty part thereof, out charged, is competent to prove the at-
the intent with which a note was endorsed. a people, and those tending to 'destroy  The claim for rent or money cannot be of any bank notes, money, stocks, judg- tempt to commit it: ]d.
2. Liability of- endorser on anomalous note their conedeuce in each other is an un- joined with that for the recovery of pos- ments, or other indebtedness to such per-  EJECTMENT.
cannot be shown by p herol.  b       mitigated evil.  The sooner we return to session, though damages for the deten- son. They are to retain, which implies
The oiability must be sowu by tie wri- the old landmarks of contract the more tion is authorized by the statue. It 'has that the articles were in the hands  Growing Crop.-A plaintiff in eject-
OPINIonlyT.R                H        effectually will we promote moral Ib nesty been held that under this act the land- of the decedent at the time of his death. ment, who has judgment in his favor, is
orNIONOF THE COURT ON .THERE- in the state.                                  lord must recover his rent by a separrte The legal representative cannot be called entitled to be placed in possession of the
SERVED POINTS.                There is -nothing in the objectionto commonlaw action.                   on to sell the goods ip order to raic premises,including the growingoropif
oThe present suit was Toughtn o  the Mr. Swartz as a witness.  He had no0 in-  The proccedhig must be reversed.  money.  It might as well be said that if any, as against the. defendant, and those
endorsement or guarantee of a rom     terest and was fully competent.  See              JNO. J. PEARSON,          she elects to take stock, he would be call. holding under him; provided, he has
issory note of $200 principal,  t one 1J., 467, where the point is decided.                    President Jdge.    ed on to purchase it, or tc obtain judg- not recovered as mesne profits the rent
year, drawn by Jno. Vert payable to the.  On the second and third points re-                                      . ments, or promissory notes, to enable let for that year: Gardner v. Kersy et (d.,
ordbr of Jonas Allwine, and endorsed by served judgment must be rendered in    Since filing our opinion and giving  to select them.  She can take her dona- 39 or 40 Ga.
Ge6. Garverich, Jr., in blank.        favpr of the defendant, who, as -an ex- judgment in this case we have been re- tion out of any of them, if on hand.   A plaintiff in ejectment, who has re-
This endorsement of itself contained ecutor, had a right, and was probably ferred to the opinion of Judge Agnew, She has the right to elect land, at her op- covered rents as sneprofts for the year
no -obligation to pay, not being in mer- bound to set up the statute of frauds by published at length in the Legallantelli- tion, but no one would say that an ad- in which the recovery is had, is not enti-
eantile form, and an anomalous instru- way of defence.                       gencer of the 11th of 14arch, 1870, and ministrator must purchase it for her. tied to the crop of that year. While he
ment, See 4 W, 449; 1 Jones, 466; JNO. J. PEARSON, on the strength of that authority asked The courts have already greatly wrested is entitled to the possession of the pre-
4 Casey, 189-193-447.  Yet it was clear-                 .President Judge.  to reverse our decision and affirm the the law from its true meaning to gratify mises, he is bound to allo the tenant
ly held in these and numerous other      At request of Plaintiff's counsel ex- judgment of the  alderman.  This we widows, but this would be giving it an ingress and egress to gather and carry
cases, priov to the passage of the Act of ception sealed to the decision of the Court would cheerfully do if the case cited additional wrench, never meant or intend- away the crop. If he has recovered rent
April 20th, 1855, that the object of the on the Ieerved points, could be comprehended, as we hold it to ed. She must take her sponey, land, for a part of the year, and the crop is
endorsement might be shown by parol, JNO. J. PEARSON, [SEAL.] be the duty of the inferior courts to fol- stocks or judgments out of those belong- growing, but not gathered4 the tenant is
and that the paper was enidors-d for the                                     low th decisions of the superior, whether ing to the decedent.  We cannot require entitled to his pro rata part of the crop.
purpose of guaranteeing its payment; PARSONS &-INNEY, PLAINTIFFS            believing them to be correct or otherwise. the executor to sell the goods in order to But if no rent is recovered for the year,
and such being the intention thie payee IN ERRon, The responsibility rests on the supreme raise the ioney for the widow, and if it the growing crop goes with the land: 1t:
had the authority to write a contract to                                     tribunal.  The- sylabus of the case re- is not on' hand at the time of her hus.  If the plaintiff, who has recovered the
that effect above it.  Independent of H. J. ROUMFORT, DEFENDANT I            ported says the notice to quit was on the bands death, she must take the goods or rent for the year, takes possession of the
proof there could be no recovery.  Al-               ERROR.                  24th of December, the last day of the do .without. That portion of the selec- premises, and appropriates the crop, or
though the signature of the party propo-  667, April Term, 1870.  Certiorari,  term being the 24th of March following. tion is not approved               refuses to permit the tenant to gather
sed to be charged is had on this instru-       ETTER for Defendant.          The opinion of the judge says the last -'TOHN J. PEARSON,                    it, the tenant has a right at law to recover
ment, and we may clearly infer was placed FLEMING for Plaintiff. day of the lease was the 24th of March President Judge. the- value of the crop: Id.
there for some purpose, and the purpose                                      and the notice to quit was served on the                                             FRAUDS, STATUTE OF
being to guarantee payment cannot be 1. Where a certain number of days' notice 25th of December previous, and the     GVI     THE   PREcIsE    ORDs.-A      Debt of Another.-The plaintiff5 a
miutd  e  h  hoeolgto   ut      ust be given, the one day is-to be included                                Gv.oTEPEIEWRS-                          etJ      nte.Tepanif
doubted, yetand the other exuded.                            .             question is asked, was this three months' witness was examined before a judge, in  physician, attended the defeidant's daugh-
be made out by means of a parol expla- 2. Notice to quit on the first day of April, notice ? The Judge then proceeds to a case who required him to repeat the ter, twenty-two years old. being sent for'
nation, which brings the' case within the  given on the first day of January, not suffi- recognize the rule as settled in Pennsyl- precise words spoken. 'The witness hesi- by her while sick at dqfendant's'house.
statute of frauds. Not only the promise,  thir: It stofl Dhavebeen-served on the vania that whenever by arule of Court tated till he riveted the attention of the and on the occasion ot the first visit, after
buttheconsderationthereforinustbein               ao    eceeror an act of the Legislature a given num- entire court upon him, then fixing his examining her and prescribing for her,
writing. Saunders vs. Wakefield, 4 Barn.  By THE COURT.   There are but two I ber of days are allowed to do, an act, or eyes earnestly on the judge began:  the defendant said to him that he wished
& Ald. 595; 6 Eng. C. L. R. 531. But exceptions of any moment apparent on it is said an act may be done within a     11May it please your honor, youlie and
see- pe contra, 9 Wright, 345. In Mar- the record in this case.  All of the others given number of days, the day in which steal, and, get your living by stealing.  him  t  be   a ndeaonall he chargfo
tin vs. Duffy, 17 Legal Intelligencer, p. as assigned are unsupported under the - the rule is taken or decision made is ex-  The face of the judge reddened, and  he bu  fresu  in  heshougd
Th  fceoftmejugerddne, n       as he could, for he -supposed he should
148, it is decided by the Dist. -Court act of December 14, 1863. It must ap- eluded.  See 3 Penn'a 276 - 3 Casey, he immediately said:                  have to pay the bill, and on a subsequent
of Philadelphia-opinion per Sharswood, pear that the lease of the premises was 444 :5 Casey, 525; 10 P. F. Smith. 457.'  Turn to the Juy, sir          visit repeated the same in substance, and
President-That since the passage. of the for a term certaia, that the term has fully He then shows that proof must be made    _      ---                 on other occasions made other expres-
Act of April 20th, 1855, parol evidence epded, and that three months previous that the term  has fully ended and that  JUSTICE NOT TO BE HAD.-      y   o     w     the account
b    UTC      O   OBEHD-         oyusions wieteacutwsaccruing, r-
should not b.e received to show the inten- notice had been given of the desire of three months revious notice has been think I shall have justice done me ? cognizing his liability and acknowledging
tion of the parties in endorsing a promis- the owner to repossess the same. Unlike given.  Previous to what?  The -answer said a culprit to his counsel, asirewd that he employed the plaintiA  Th
sory note, and that the guarantee thereof the act of 1772 this notice must be given is obvious-to the expiration of the term. Kentucky lawyer of the best class in plaintiff made all his charges to the de-
cannot be made out by parol.  The con- at least three months prior to the termi-  The judge says the lease expired on the that celoquent state.        fendant, and it was understood by both
tract of guarantee must be complete by nation of the demise.  Under that law it last moment of the .24th of March; but  l am afraid that you  o
am fridtht o-, rn't, replied plaintiff and defendant, while the accoun t
the writing, without a resort to parol was sufficient if done three months before if such was the case the notice on the the other,: I see two men on the jury was accruing, that the defendant was to
proof. 'that there is no difference, prac- proceeding. In the present case the 25th of December previous was too late, who are opposed to hanging. pay it. Held, That these facts were suffi-
tically, between establishing a contract lease terminated on the first day of April, provided the day on which it was given                             ifg pient to create a direct original indebted-
entirely by oral testimony, and complete- 1870.  The notice to quit was dated on is to be excluded as clearly settled.  We  A JOB-LKE  G  -The most cx. ness from the defendant to the plaintiff:
ly changing the character of a written  the first day of January of the same year. all understand that when a lease is made  rinAaiads
contract by the same kind of evidence. Although the service of the notice is for a year to commence on the first of traordinary instance of patience on record Eddy v. Davidson, 42 Vt.
The whole contract must b    writing, n   proved, yet                     ; -April it expires a idnight            in modern times is that of an Illinois             GUARANTEE.
add its character and terms cannot be from which we may perhaps infer that it Iof March following, and therefore the judge, who listened silently for two days What constituts.-Where a merchant
added to, or varied by parol. That case was served oni the day of its date. We landlord can commcence proceeding to re- while a couple of wordy attorneys conten- sells goods to another, upon an arrange-
is on all fours with this. The same doe- cannot suppose that it was done before. gain possession on the first day of April; ded about the construction of an act of ment that a third party is to collect the
trine is established in substance by the Is the service on the 1st of January to but that shows that notice on the first day the legislature, and then ended the con- account and pay the same to the mer-
Supreme Court in Jack vs. Morrison, 12 -give up the promiises on the 1st of April of January to leave the premises on the -troversy by quietly remarking,  Gentle- chant, for* which, as collector, he is to re-
Wright, 1113. We arc therefore con- sufficient ?# Although we have had many first day of April is not in time, provided 'men the law is repealed. ceive a commission of ten per cent-, and
strained to say that although the inten- contradictory decisions by the Supreme the day on which it is to be served is ex- *such third party is furnished with du-
tion of the defendant's testator in en- Court as to the computation of time, yet eluded. The notice should be given on Mr. JU STICE PAGE was renownled for plicate hills of account, which1 arc made
dorsing the note was made manifest by it mnay nomd perhaps be considered as set- on the 31st of December at latest, and jhis fergoity on the bench. While going out in the name of the purchaser, and
incontrovertable evidence, and the claims ItIed that w henever an act of Assembly such has been the universal understand- to circuit, a facetious lawyer, named across the face of the bills retained
of the plaintiff, ,most fair and honest. 'requires a thing to be done within a cer- ing. We think from Judge Agnew's ICrowe, was-asked if  the judge was not by the merchant, such third party
Yet according to the provision of the tain number of days, or a number of days Iwhole course of reasoning that there is a just behind. writes the word  accepted, to which
statute of frauds there can be no0 recor- or months' notice to be given, the one mistake of dates-that they are trans-  ' I don't know, said Crowe, but if he affixes -his signature, in an action
cry, and judgment tgust be rendered in day is to be included and the other cx- posed-the notice served on the 24th of Ihe is, I am sure he was never just before. (6continued on Fomurth Page.)

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?