money on the security aud applying it to C. P. of the principal debt." Gettysburg Bank, 8 Mon'gomery Co. Alleva v. Gravinese et al. See also Miller v. Attorney's Compensation Garnishee petitioned the Court to open judgment entered against him and to let him in for a defense, alleging ignorance of his rights and liabilities. Petition to open judgment. The facts show that the garnishee was personThe Court in its general charge instructed ally served with interrogatories, that he had emthe jury that the plaintiff was not neces-ployed counsel, who notified the Justice that he sarily bound to foreclose the mortgages im- represented the garnishee, and if garnishee failed to recompense counsel for services to be rendered, mediately upon receiving notice to do so. he cannot now complain of the position in which That failure to do so might be owing to he has voluntarily placed himself. The garnconditions beyond the control of the Bank, ishee's rights would have been protected by apwhich could not be imputed to it as care-months having elapsed from the time of the entry peal or certiorari, but a period of more than eight lessness. That the circumstances might be of the judgment and the transcript being filed in such that the Bank would lose by doing so, the Court of Common Pleas, the application to and that there might be good reason to be- open judgment must be refused. lieve that the money might be made by delaying action. Also that depreciation in value of the property might be sudden, or from causes which no one could foresee. For these reasons the Bank could not be held liable under any and all circumstances for failure to foreclose these mortgages, but would be held only to the exercise of such care of the collateral as a man of ordinary prudence would give to important affairs of his own. We are of the opinion that these instructions were as favorable to the plaintiff as the established rules of law would permit the Court to give. The general assignment that the Court erred in its rulings on the admission and rejection of evidence at the trial of the case, was abandoned at the argument and no specific rulings were excepted to at all. Only the Court's answers to the plaintiff's third and fourth points refusing, binding instructions, were excepted to before the jury retired, but we have also reviewed the answers to the plaintiff's 1st and 2nd points, because they involve the same questions as to plaintiff's liability for negligence, as does the portion of the charge which was excepted to. The exception to the form of the verdict was not pressed in court or argued by plaintiff's counsel, probably because no exception had been taken to the form of the verdict at the time of its rendition and recording, The plaintiff's motions for a new trial, and for judgment non obstante veredicto are overruled and refused. J. Ambler Williams for plaintiff. Maxwell Strawbridge for defendant. November 23, 1917. SWARTz, P. J.— Judgment was obtained against the defendant, Guiseppe or Joseph Gravinese, before the magistrate, Casper Puche, for the sum of $223.09. Execution was issued on November 28, 1916, and the constable returned "no goods." On December 1, 1916, an attachmentexecution was issued against Antonio Di Nanno, as Garnishee. Interrogatories were filed and personal service was made on the defendant and the garnishee, fendant and the garnishee failed to appear On the day fixed for a hearing the de and no answers were filed to the said interrogatories. On August 8th, 1916, the Justice gave judgment against the Garnishee, in default for not answering the interrogatories and also did not appear." The judgment was entered for the same amount theretofore given against the defendant. On August 14, 1917, more than eight months after the judgment was entered, a transcript was filed in the Court of Common Pleas for the purpose of obtaining liens against the real estate of the defendant and the Garnishee. During all this intervening time no appeal or certiorari was taken to the proceedings before the justice. In the application to open the judgment, no exception or objection is made to the regularity of the proceedings had before the justice. The reasons given, in support of the application to open the judgment, are stated as follows: "Your petitioner believes, that since he had no dealings with Guiseppe Gravinese, and being ignorant of his rights and liabilities, in the premises, and relying upon the statement of the constable, feels that the judgment of record is an injustice, as against him, and, therefore, prays your Honorable Court to open said judgment and let your petitioner, as Garnishee aforesaid, into a defense." Common Pleas, upon a transcript of the justice, for the purpose of obtaining a lien, can i not be opened by an application to that Court. This ruling is well established by numerous decisions of our Supreme Court; Lacock v. White, 19 Pa. 495; Boyd v. Miller, 52 Pa. 431; Littser v. Littser, 151 Pa. 474. The same ruling is found in Doerr v. Graybill, 24 Pa. Superior Ct. 321. That the same rule of law applies to a judgment entered by a justice against a garnishee is shown in Boland v. Spitz, 153 Pa. 590. In that case judgment was entered against the garnishee by the alderman, The Court said: appeal, certiorari or When the attachment and a copy of the interrogatories were served on the Garnishee, the Justice who speaks the Italian language, accompanied the constable. The justice explained the proceedings and the interrogatories to the Garnishee in Italian. When the latter stated he had no business dealin's with the defendant, Joseph Gravinese, the justice answered, that is all right but you should employ a lawyer to protect your in the Common Pleas, to open the judgment Even if we could entertain jurisdiction, interests. The Garnishee accordingly did employ an attorney in the matter, before the return day of the writ and b fore the time for the filing of answers to the interrogatories had expired. On the day before the hearing said at torney wrote a very unusual letter to the justice. It reads: ** His only remedy was by appeal or certiorari." the garnishee was ignorant of his rights, we could not sustain the contention, that when the evidence shows he retained counsel in ample time, to protect these rights. The other contention of the garnishee, that he had no money in his hands due and payable to the defendant, is also contradicted by the evidence. We are of opinion, that the weight of the evidence clearly shows "I represent Mr. Antonio Mannocchio, that there was a fraudulent combination to Guiseppe Mannocchio and Antonio Di Nanno, upon whom you served certain interrogatories which you desire answered. These people are perpectly willing to do this, providing you pay their attorney for the filing of said interrogatories." Afterwards a fee of ten dollars was demanded. After this correspondence, it is useless to talk about the ignorance of the garnishee's rights and liabilities. He employed counsel to protect him in his rights. If he failed to pay the attorney for the services he was to render, he has no one to blame but himself for his default in not answering the interrogatories. Why should the justice be called upon to pay counsel fees? misrepresent the true facts as to the relations between the defendant and the garnishee. The disinterested witnesses show that Joseph Gravinese was the contractor to build the houses for Di Nanno, and that Philip Gravinese was substituted as the contractor to defeat the payment of the plaintiff's claim. The only disinterested evidence apparently in conflict with this concluson, is that of Mr. Moll who kept the accounts of the Norristown Brick Company, but when his testimony is examined, he fails to give any warrant for charging the bricks to Philip Gravinese. All his dealings beginning with the quotation of the price for the bricks, were with Joseph Gravinese. It is, however, not necessary to base our If the Garnishee had a good defense be- action upon the merits of this branch of the cause he was not in any way indebted to the garnishee's contentention. For the reasons defendant then it was his duty to make that already given, we can not disturb the judgdefense before the justice. After the judgment, under the application now before us. ment was entered against him his only remedy The rule to show cause is discharged, was an appeal or a certiorari of the proceed- and the application to open the judgment is ings. A judgment entered in the Court of refused. Work Legal Record single mule, were were sold as the property Vol. XXXI THURSDAY, APRIL 18, 1918.', Tyson v. Tyson. of F. L. Tyson, the husband of the plaintiff, and the defendant received the proceeds No 49of the sale after deducting the costs and expenses of the judgment and execution against F. L. Tyson. Married Woman-Sale of Property Under 4 Before the seizure and sale of said mules the said defendant was told by the plaintiff or her husband, F. L. Tyson, that the two pairs of black mules and one single mule were the property of the plaintiff, Ida L. Tyson, and that they were not the property of the said F. L. Tyson, &c. 5. The defendant is the brother of the husband of the plaintiff. Plaintiff sued to recover damages for the sale of her property, under an execution against her husband. At the trial the evidence showing the purchase of the property by the plaintiff, due notice of such ownership given to the defendant and ample opportunity for defendant to ascertain the truth of such claim before the day of sale, the Although the above facts were practically jury found for the plaintiff the amount for which admitted by the pleadings, the plaintiff called the mules were sold at the sale, interest and fifty o Awitnesses to establish them at the trial. dollars damages On a motion for new trial, on the ground that there was no evidence to supportThe main contest at the trial was the enthe verdict for punitive damages, HELD, that the deavor of the plaintiff to establish independent ownership of the property in question. by evidence in detail as to how she acquired each animal in question to convince the jury of her claim.. motion must be refused. There was admitted in evidence the note given by plaintiff at the time she bought the mules receipt for the payment of the same and state ments of the party from whom she bought the mules. HELD, not to be grounds for a new trial. These papers and statements were not offered as complete and conclusive evidence of ownership, but as corroborative of plaintiff's direct testimony on the subject. In order to decide with accuracy upon the char acter of any phenomenon or transaction we must know all the facts of which it consists, and all the circumstances that are truly connected with, and influence it. No. 46, April Term, 1917. A. W. Hermann for motion. The evidence for the defense did not directly contradict any of the material evidence adduced for the plaintiff but its trend was to establish the theory that the mules had been acquired and paid for out of the joint accumulation of the husband and his wife, while they were living together on farms rented by the husband and that consequently the property so accumulated was in the law the property of the husband. The evidence was all left for the consideration of the jury and both parties signified their agreement with the Court's expressed views by declining to except to any part of the charge. The jury returned a verdict April 8, 1918. Ross, J.-By the plead for the plaintiff. As will be seen by referings the plaintiff avers and the defend-ence to the stenographer's transcript of the ant admits that, 1-the plaintiff was, on trial, the verdict was for the sum for which December 2nd, 1915, a married woman, the the mules were sold by the constable, with wife of F. L. Tyson. 2. On or about De-interest from the day of the sale, and fifty cember 2nd, 1915, the defendant caused an dollars damage. execution to be issued upon a judgment which he had obtained before a Justice of the Peace in the Borough of Red Lion, York county, against F. L. Tyson, and on December 6th, 1915, he directed W. E Straley, a constable, to levy upon and take under said execution, on December 13th, 1915, two pairs of black mules and one single mule, and executed and delivered to said constable, a bond in the sum of $800.00 to indemnify the said constable, &c., &c. 3. On December 18th, 1915, under said execution, two pairs of black mules and one The plaintiff's statement demanded punitive damages, and some of the evidence, if believed, indicated wantonness on the part of the defendant; both counsel for defendant and counsel for plaintiff discussed the question of such damages in their arguments to the jury, so that it was incumbent on the Court to instruct the jury on the disputed question of punitive damages which was done in the following language: "In cases of this kind, sometimes the law will permit a jury to impose punitive damages where they find for the plaintiff. Now, punitive damages means damages as punishment. by plaintiff, as requested by defendant on Sometimes it is called exemplary damages, page 41." which means damages for example, to set "II. The Court erred in not sustaining an example for other persons. Only in defendant's objection to the offers of the cases where there is wanton carelessness, plaintiff on papers marked exhibit 20, 21, where there is vindictiveness, or spite, or 22, 23, 234, and 24. The said papers being where the defendant acts through malicious offered by the plaintiff for the purpose of impulse, and thus injured or attempted to corroborating the witness (Mrs. Tyson) in injure the plaintiff, is it usual to impose her answers to the questions propounded such damages. There is hardly any measure on cross examination by counsel for the for me to present to you by which you could defendant." calculate that kind of damages. It the The uncontradicted evidence was that plaintiff was humiliated by the defendant's the defendant was not only told before the actions, or if the defendant acted in such a levy and sale by the plaintiff and her husband malicious manner that in your verdict you that the property which was sold by the should say to defendant, you must pay so constable by the persistent requirement of much as punishment, or we will set the ex- the defendant, belonged to the plaintiff, but ample to others who are liable to do the the constable informed him of such a claim same thing upon impulse, you can calculate by the plaintiff, which was given in writing what such punitive damages should be, if before the sale under execution. The evidence you render a verdict for the plaintiff." All to that effect produced by the plaintiff was the points submitted and not withdrawn were affirmed by the trial judge and no request was made for any additional instructions. Now the defendant asks for a new trial, because, he alleges through his counsel, that "I. There was no evidence to support the verdict for punitive damages. such as the jury evidently believed, and was such that the facts could easily have been ascertained by the defendant, if he would have been inclined to have made proper inquiry before he ordered the levy and sale of the property. It was for the jury to say from the evidence if the defendant acted with such undue wantonness or maliciousness as to warrant the punishment which it inflicted upon him by the verdict. The "2. The Court erred in admitting in evidence plaintiff's exhibit 'No. 2, G.M.D.,' being note of Ida M. Tyson and Henry defendant's evidence divulges no act of care Tyson to Levi Kaltreider, for four hundred and fifty-two dollars ($452.00) dated March 22nd, 1911, under objections of defendant." "3. The Court erred in admitting in evidence receipt, being plaintiff's exhibit 'No. 3, G.M.D.,' under objections of defendant." "4. The Court erred in admitting as evidence plaintiff's exhibit 'No. 4, G.M.D.,' being receipt." "5. The Court erred in admitting in evidence plaintiff's exhibit 'No. 5, G.M.D.,' being receipt from D. F. Frey." "6. The Court erred in admitting in evidence plaintiff's exhibit 'Nos. 7 and 8 G.M.D." "7. The Court erred in admitting in evidence note, under plaintiff's exhibit No. 9, G.M.D." "8. The Court erred in not sustaining defendant's objection to testimony of J. B. Heilman on page 24." "9. The Court erred in not striking out the testimony of O. R. Arnold on page 33, as requested by defendant." "10. The Court erred in not striking out the cross-examination of W. E. Craley, for the rights of the plaintiff and no excuse for levying and selling her property for the debt of another, than his own general statement that he asked the boys of F. L. Tyson, who are the step-sons of the plaintiff, and they said the mules belonged to their father. The jury evidently did not think that he was warranted in so recklessly and negligently inflicting the humiliation and trouble. of a constables' sale upon the plaintiff after she had informed him of her exclusive ownership of the property which he persistently caused to be sold. (See Whelan v. Miller, 49 Pa. Super. Ct. 99). In our opinion, the evidence justified the verdict. The first reason for new trial is, therefore, dismissed. The 2nd, 3rd, 4th, 5th, 6th, and 7th reasons assigned as errors and for which defendant asks for a new trial, are all admissions of collateral evidence by the Court: they were not offered as complete or conclusive evidence but only as incidental and tending to corroborate the plaintiff's direct testimony on the same subject. They were offered in connection with the prior testi mony of the witness. They were private writings and their execution was proven by competent witnesses. "When a private writing is not directly in issue, but comes incidentally in question, its execution may be proved by any competent testimony"; Kitchen et al. v. Smith, 101 Pa. 452, 35 L. R. A. 350 (note XIV) which cites Pennsylvania cases. The 8th, 9th, and 10th reasons are alleged errors of the Court in not striking out certain testimony. testimony and of the testimony of other of her witessess. The reasons advanced do not convince the Court that a new trial should be granted in this case. And now, April 8th, 1918: The rule granted is discharged and a new trial is refused with an exception to defendant. C. P. of Lancaster Co. Minnich v. Hagen. Assignment-Right to Collect Balance After assigned estate of the defendant who was a farmer. As to farmers the Insolvency Act of June 4, 1901, is not suspended by the Federal Bankrupt Act of July 1, 1898, but is in force. A falsehood or deceit can only be taken cognizance of by the courts where it has induced some one to do some act to his own injury. Rule to open judgment and let defendant into a defense. The 8th was an exception to certain testimony of J. B. Heilman, who, the plaintiff's evidence tended to show, sold certain of the mules which had been levied upon and sold by the constable as the property of F. L. for a pre-existing debt, falsely stated to the plainTyson, after, (as the trend of the evidence tiff that he had given no prior judgments, this was) plaintiff had notified the defendant, does not constitute such fraud or deceit in conthat said mules belonged to her. The bur- templation of Section 33 of the Act of June 4, den of proof was upon the plaintiff to prove issue execution on his judgment after having re1901, P. L. 404, as will permit the plaintiff to property, and the evidence complained of,ceived and duly released for, a dividend from the was, of course, not conclusive, but taken with all the proceeding evidence on record was res gestae, and tends to establish with the other evidence the theory upon which the plaintiff was trying to prove her case. It was not, (as defendant's counsel objected) a self-serving declaration, because it was made not by any party in this suit, but by another person, to an entire stranger whose ostensible object was to make a sale to a responsible person; it pertains directly to the very claim of exclusive property in the plaintiff which she was endeavoring to establish. As was said by Lowrie, J., in Hollinshead v. Allen, 17 Pa. March 23rd, 1918. LANDIS, P. J.—By 275. "It is a principle of law, of logic, of the Insolvent Act of June 4, 1901, P. L. philosophy and of common sense, that in 404, Section 23, it is provided that "no order to decide with accuracy upon the claim against the insolvent's estate shall be character of any phenomenon or transaction allowed unless the claimant, or some one for we must know all the facts of which it con-him if he cannot do so, shall furnish to the sists, and all the circumstances that are truly assignee or receiver a statement of his claim, connnected with, and influence it." This is also true when we view, with the whole testimony, the evidence of O. R. Arnold and W. E Craley, complained of by defendant in his 9th and 10th reasons for a new trial. (See Rees v. Livingston, 41 Pa. 113). H. Edgar Sherts for rule. Chas. E. Workman and Coyle Keller, contra. together with a copy of any book entries appertaining thereto, or any note or other writing evidencing the same, verified by an affidavit," and, "if such claim and affidavit be in proper form, and the balance claimed agrees with the amount stated by the insolvThe 10th reason given for a new trial, is ent, or upon consultation between the crediviewed by the Court as being without merit, tor and the insolvent the amount is agreed the exhibits complained of as being admitted upon, the claim shall be allowed if presented were, as the evidence tended to show, notes before the filing or audit of the account, unupon which the plaintiff had raised the less objected to in the manner hereinafter money and credit by which she obtained the set forth." Section 26 provides that, "if, at alleged ownership of the mules which were the time of filing the account and list of the essential subject of the suit, and having proved claims, there are claims which remain been paid by her and produced by her, were unadjusted, or if objections be filed, the pertinent illustrations of the truth of her court shall hear and decide the disputed |