Practical Law And Business Pointers, Mines And Mining
( Originally Published 1918 )
Consulting Lawyer.—In minor matters it is better to lose your money than to rush into litigation, but in matters of any importance never act without the advice of good counsel.
An Attorney's Power.—An attorney-at-law has no implied authority to compound or give up any rights of his clients, but an attorney of record may consent to a judgment against his client.
Bank Checks.—The acceptance of a bank check by a creditor is not an absolute but a conditional payment of the drawer's debt.
A drawer of a bank check cannot countermand it so as to affect it in the hands of a holder in good faith.
Waiver of Homestead and Personal Property Exemption.—In some states a clause in a promissory note expressly waiving the benefit of all laws exempting real or personal property from levy and sale, being contrary to public policy, is inoperative, and confers no right to levy upon and sell personal property which is exempt. In Pennsylvania, however, the exemption can be waived and all leases and judgment notes usually contain a waiver.
Distress for Rent. The right of a landlord to issue a warrant authorizing a levy upon property of a tenant for the satisfaction of rent is looked upon in this country with disfavor, and in some of the states the right has been abolished.
When property temporarily in the possession of a tenant, but belonging to another, is taken under a distress against the tenant, the tenant will be liable to the owner for its value, but in Pennsylvania all goods found upon new premises (with but few exceptions) are liable for rent under a distress and levy, no matter to whom they belong.
Wrongful Levy of Execution.—For wrongful levy on property, when an officer, under an execution, seizes the goods of some other person than the defendant in the execution, the owner may maintain an action, and trespass is the usual remedy of the owner; but trover may be maintained in many cases and in some cases replevin will lie.
Stray and Mischievous Animals
Owners of domestic animals, such as cows, horses, sheep, hogs, poultry and dogs, must not permit them to stray upon the premises of others, or they will be liable in trespass for damages.
No Right to Kill or Injure.—But those upon whose premises such animals trespass are not justified in killing or injuring the animals, no mat-ter how aggravating or repeated the acts of trespass may be, unless the animal killed is at the time attacking another animal and is killed to save the life of the latter.
Remedy Provided.-The persons injured by such trespassing have their remedy in an action at law for damages, and there are statutes providing for the taking up of such animals and holding them at the expense of their owner or impounding them as estrays.
Right to Drive Off Cattle. —A person finding cattle wrongfully upon his land, has the right to drive them off by any of the ordinary means to which a prudent man would resort, and may use a dog for that purpose, unless there is some-thing in the size or habits of the dog, or in the mode of setting him on, or pursuing, which would negative the idea of ordinary care and prudence.
The Right to Distrain animals doing damage to one's property is recognized at common law and by statute in most of the states. The person distraining is authorized to detain the animal in pledge for the payment of his damages. The owner of the property injured by the animal is bound to exercise ordinary care to prevent the damage, and the animal must be taken while on the land where the damage is done. For if it escapes or is driven off the land after being dis-covered doing damage, it cannot be distrained. Most of the states provide for a summary appraisal of the damage done by the trespassing animals and their sale for the payment of the assessed damages.
Mischievous Animals.—The owner of a mischievous animal, known to him to be so, is responsible, when he permits him to go at large, for the damages he may do, and any one may justify the killing of a ferocious animal at large. The owner of such an animal may be indicted for a common nuisance.
If a person enters the barn or pasture of another, and is injured by a vicious horse or bull, it must be shown that the owner used all reasonable means in the care of his animals for the safety of his help and neighbors.
If a person enters the land of another, and is injured, he must show good cause for entering upon said land, and also prove ordinary caution, in going where cattle and horses were kept.
Responsibility of Owning a Dog
A person has a right to keep a dog to guard his premises, but not to put him unconfined at the entrance of his house; because a person coming there on a social or business errand may be injured by him. But if the dog is chained, and a visitor incautiously goes so near him that he is bitten, he has no right of action against the owner.
Liable for Damage.—Owners of dogs must keep them from straying upon the public high-way, or they will be responsible for any damage caused by their annoyance of travelers, scaring of children, barking after teams, etc.
If a dog strays upon the premises and kills or injures any other domestic animal, its owner is liable for damages.
Dangerous Dogs running at large may lawfully be killed when their ferocity is known to their owner; or in self-defense. When bitten by a rabid animal a dog may be lawfully killed by any-one.
But a person is not justified in killing a dog without notice to the owner, merely because it barks around his home at night.
The owner of a vicious dog will not be held liable for the dog's biting a person unless it can be shown that the dog had previously exhibited a propensity to violence, and that the owner was acquainted with this propensity. This is the common law, but in many states statutes have been passed making the owner or keeper of a dog liable for any damage done by it whether the owner or keeper knew that it was vicious or not.