The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-06-01

SO Judge Archibald Opines in Revers-
ing FoV ner Orderin the Bortree-
Butterman Case--Judge Edwards
on the Distinction Between Fixtures
and Chattels.-I Insurance Compa-
nies Cannot Have Contradictory
Clauses in Their Policies.
In an opinion in the case of Bortree
against Butterman yudge Archibald
yesterday gave an official interpreta-
tion of the relations between the sheriff
and the court, something that had new
err been ruled upon before locally and
possibly never before;jn this state.
The case came before. court in the
shape of a rule on the sheriff TO COM
pei him to execute writ of possession
issued by Alderman Wright to F. Bor-
tree for a property in the Tenth ward,
which has belonged to Albert Butter
man and which Bortree bought at sher-
IFS sale. The rule was granted, but
yesterday Judge Archibald recalled the
order and discharged the rule, making
the following comment:
THE proceedings by the sheriff
vendue are not before us, but before
the alderman, where they were of ne
ccssity instituted. The writ of possess
sion therefore is not our writ, nor the
sheriff our officer, so gas to charge us
with the control and oversight of his
execution of it, The law gives us no
general control over the sheriff. but
only incidentally where the process of
the court is put sin his hands. AS to
other matters he acts upon his own
judgment being responsible for his acts
and omissions, according to his legal
duty in the premises. 1T was a mistake
to ask for the present rule and had
the exact nature of the application
been disclosed to us, we should have
refused it. Being inadvertently grant
ed 1t is now discharged, without at
tempting to decide the duty of the
sheriff with regard to the matters set
forth in the petition on which the rule
was obtained. Rule discharged without
prejudice"
LINDSAY-ROBINSON CASE.
Judge Edwards in a lengthy and in
teresting opinion in the Lindsay Rob-
inson case ruled that the mere element
OF the annexation of appurtenances to
realty has but little weight in fixing the
character of the appurtenances, that
is 1t is no criterion in ndeciding whether
1t Is realty or chattel The old mail
and screw" distinction, in other words,
cut a very small figure.
William Kinback owned a planning
mill in Carbondale, on which w. B.
Lindsay had a $4,000 mortgage T. c.
Robinson, who had Judgment against
the place, sold it out and proceeded to
remove the machinerysw which he himself
bid in. Lindsay felt that the mill with
out the machinery would not commence
to satisfy his mortgage and applied
to court for an injunction to restrain
Robinson from removing any more of
the machinery and to compel him to
replace what he had already taken
away. The defendants made answer
that the machinery was not part of the
realty and consequently not affected
by Kinbacks mortgage.
Judge Edwards decides that every
piece of the machinery necessary to
operate the mill is just as much realty
as the building and the ground it
stands on.
By refusing new trial in the case
City Mutual Fire Insurance company,
of Pittsburg, Judge Archibald puts a
quietus, locally, at least, on one of the
hardest fought legal battles over a
small claim that appears on the rec
ord.
AN INSURANCE CASE. ..
Dominica owned a small dwelling
house at the Continental" which he
had insured with the defendant COM
pany for $500. 1t was completely de-
stroyed by fire shortly after the in
surance money was subject to collec-
ton and Dominica made demand FOR
the full amount of the policy. The
company demurred at this demand and
the dispute went into arbitration.
The arbitrators found in favor of the
plaintiff for the full amount with in
terest. The company appealed and at
the trial of the case made the allega-
ton that Dominica forfeited his policy
rights because an unprotected stove
pipe projected through the floor of one
of the upper rooms, which was con-
trary to the provisions of the agree
ment.
The jury said "bosh" to this and gave
a verdict for the plaintiff in the sum
of $7O5.S3 a small increase over the
award of the arbitration. A new trial
was secured on some technically or
another and again on March 27 last,
the jury found for Dominica in the
sum of STILLS. Again the company pc
titioned for a new trial, this time pre-
senting as its grounds therefor a by
law printed on the back of the policy
which estops the assured from recov-
ering more than two-thirds the actual
cash value of the property destroyed.
A BAD PROVISION.
Judge Archibald, in a polite but un-
mistakable kind of a way. tells the
company that he is not at all favorably
impressed with a policy which on the
face of 1t tells the assured he will re-
ceive full value and on the back in an
obscure bylaw stipulates that only
two-thirds of the actual value can be
recovered. The repugnancy between
the two provisions is not the fault of
the plaintiff, he holds, and decides that
the company is the one to suffer from
the confiiction.
In the case of the city of Scranton
against E. b. Sturges and others, court
struck off the municipal liens, on the
ground that they were defective The
liens were filed at the time of the
paving of North Washington avenue
Mr.. Sturges and other property hold
ers alleged that the paving was i'm
properly done, and resisted payment
alleging that the liens were defective
because in each case they covered prop
critics separated by q public thoroue H.