to the owner of the building, and was set up and operated by him. It would seem from the opinion of Butler, P. J., that he attached some importance to this fact of the ownership of the building, as well as the machinery. He held that two things were necessary to convert machinery into real estate, viz.: 1st, that it must be permanently attached to a building; and 2d, that it must be so attached by the owner of the building. It seems to us, however, that the permanency which the learned judge had in mind, must have meant nothing more than such a duration, or period of time, as would naturally be required to use it up, or wear it out. other words, if the intention were to use the machinery for a given purpose so long as it would fairly perform the functions for which it was designed, then it would be a permanent attachment to the building.

In the case before us, there is nothing to show any purpose or intention to remove the machinery from the leased premises at any fixed time. We assume, therefore, that the defendants will have the right to use it in their manufacturing business, so long as they see proper to do so, or until it shall be rendered useless by wear. And in this view of the case, of what moment is it that the machinery was attached to the building by a lessee and not by the owner of the land? As many goods will be made and as many workmen will be employed, in the one case as in the other. The profits of the business will be substantially the same, as if the owner were also the manufacturer. The protection which the government and the laws afford to citizens engaged in any lawful calling, is extended to the person and the property of a lessee as well as of the owner of the soil. And therefore it would seem, that the machinery should be taxed without reference to the nature of the title by which the premises upon which it is extended, are held. Clearly, any other construction of the law would

open a wide door to fraud, and prove a constant temptation for subterfuge and false dealing; at the same time, that it would relieve certain classes of manufacturers from their fair share of the burden of taxation.

The law makes manufactories of all descriptions real estate, and subjects them

to taxation. The defendants are the owners of the kind of property contemplated, and therefore, in our judgment, they should pay the tax assessed upon their machinery. And, as we understand the case of Patterson v. Delaware county 20 P. F. S. 381, this is the interpretation of the law adopted by our Supreme Court.

It is now ordered that judgment be entered in favor of the plaintiffs, and against the defendants, for $2.38 and costs of suit.

On a rule to open a judgment, unliquidated damages arising from a contract not a part of the judgment in controversy cannot be introduced to reduce the amount of the judgment.

Representations, when to be regarded as no more than the expression of an opinion.

Rule to show cause why judgment should not opened, and defendant let into a defense.

October 8, 1883, RICE, P. J.-The defense to this judgment, in all material particulars, rests upon the uncorroberated testimony of the defendant. He is contradicted by the plaintiff, and his testimony is inconsistent with the terms of the written agreement, which was drawn up to express the final views of the parties after a series of conferences and negotiations, and is also inconsistent with the testimony of Mr. Downing, who drew up the paper at the request of the parties. It is quite possible that there was an agreement between the parties as to the hiring of the plaintiff's team, but the weight of the parol testimony and the written agreement itself show that it was not part of the consideration of the note and judgment in controversy, nor of the agreement for which the note was given.

This

being the case, the unliquidated damages for which the plaintiff may be liable upon a breach of the agreement of hiring cannot be off-set here. It is not alleged that the execution of the agreement of sale was procured by fraud, nor that it does not contain all that the parties intended that it should. In the absence of fraud and mistake, and of an express warranty, the alleged representations by the plaintiff that there was ice enough to supply the defendant's customers, especially as means of knowledge as to the quantity were equally accessible to both parties, and as the defendant did not purchase until he had in fact examined for himself must be regarded as no more than the expression of an opinion, and not as the means which produced the bargain. Hence, under the well recognized authorities, they do not constitute an equitable defense to the judgment.

The rule is discharged.

The affidavit that the title to lands will come in question

in an action before a justice of the peace, under the Act of March 22, 1814, may be made by the attorney for the defendant, and the jurisdiction of the justices thereby ousted.

The decisions under the affidavit of defense law hold that it is not imperative that the affidavit should be made by the defendant personally, but that it should be so made unless cause is shown to the court why it should be made by another.

October 20, 1883. FUTHEY, P. J.-The record of the justice shows that this was an action of "trespass for damage done real estate of plaintiff." The defendant's attorney, C. H. Pennypacker, Esq., before the trial, presented his affidavit, made on behalf of the defendant, that the title to lands would come in question in the action, and asked that the justice dismiss the same under he provision of the Act of 22d March, 1814 (Purdon, 867, pl. 120). The justice determined that the defendant could not dispute the title of the plaintiff,

to the real estate and proceeded to hear and determine the case. The defendant took no part in the trial after the presentation of the affidavit.

The Act of Assembly gives a justice no discretion in the matter. By its express provisions, if the affidavit is made, his jurisdiction is ousted, no difference what the fact may be with regard to the matter. He cannot inquire into or determine the truthfulness of the affidavit, but must dismiss the proceeding and remit the plaintiff to the Court of Common Pleas. (Williams v. Smith, 3 Clark 22.)

The only question presented is, whether the attorney at law of a defendant can make the affidavit. The language of the act is "that if the defendant shall, before trial of the action, make oath or affirmation, &c." We do not regard it as imperative that the defendant, and he alone, shall make the affidavit. Circumstances

may exist rendering it impossible for for him to do so, and yet where he should not be prevented from interposing the provisions of the statute. Where a similar question has arisen under the affidavit of defense law, the court have held that the defendant should make the affidavit, unless there is some special reason to the contrary, satisfactory to the court. This class of cases hold that it is not imperative that the affidavit should be so made by the defendant personally, but that it should be so made unless cause is shown to the court why it should be made by another. (Sleeper v. Dougherty, 2 Whar ton 177; Hunter v. Peilly, 12 Cassey 509; Burkhardt v. Parker, 5 W.& S. 480; Gross v. Painter, I W. N. C. 154; Cline v. Wal

lace, Ib. 293; City v. Devine, Ib. 358.)

In the case before us, it satisfactorily appears that the question whether the title to land is involved is one purely of law, and, being so, we see no reason why the affidavit should not be properly made by the attorney. If made by the defendant personally, it would be done upon the opinion given him by his counsel.

We must reserve the proceedings and allow the parties to determine their rights in the Court of Common Pleas, which think the amount in controversy will warhas unquestioned jurisdiction, if they rant it.

Proceedings reversed.

YORK LEGAL RECORD.

"I have nothing against either one of them as between my brother Jacob and

ORPHANS' COURT.

Groves' Estate.

me which of these would administer." He testifies further: "I signed the paper for brother Josiah of my own free will at the time I signed it." When asked whether he was not in favor of Josiah

ister.

While the expressed wish of the decedent that A. should administer on her estate, would be strong ground to sustain his appointment if made by the Register or to secure his appointment pending a question of discretion before the Register, it is not a sufficient reason to reverse the grant of letters given to a fit person.

Appeal of Jacob Grove, from the decree of the Register of Wills, granting letters of administration on the estate of Margaret Grove deceased, to Josiah Grove.

W. C. Chapman, for appellant.
S. H. Forry, for appellee.

January 12, 1884. GIBSON, A. L. J.The appellant and appellee are both sons of the decedent. This grant of letters to one of a proper class is an exercise of the discretion of the Register, and he has no power to revoke letters thus granted except for sufficient cause; Shomos Appeal, 8 P. F. S. 356. If properly exercised his discretion is not the subject of review in the Orphans' Court; Brubaker's Appeal, 2 Ont. 24. The only ground for reversing his action would be that of personal disability of the appointee.

The expressed wish of the decedent in her last illness that the appellant should settle up her estate, would be strong ground to sustain his own appointment had it been made and a contest raised, or to secure it pending a question of discretion before the Register; but I do not think it is of any weight to reverse the grant of letters if already given to a fit person of the right class. The question of disability as a ground of reversal still remains. Nor is the conduct of Josiah in securing the waiver of John's supposed rights of seniority, even if he had used. language of intimidation in case of John's signing in favor of Jacob, a sufficient ground for reversal. John testifies :

said: I know I signed two papers. I would rather withdraw my name and administer myself since it has gone so far. I have answered. There has been so much said that I would rather withdraw my name and administer myself." But this wish of his and the paper filed in his

behalf at the argument, did not indicate on his part any objection to Josiah acting as administrator. They only show that he desired it to be understood, in case of the reversal of the grant of letters to Josiah, he had not waived any right to administer himself. This is, it is presumed, in anology the case of a widow who has renounced in favor of a certain person and the person named by her does not secure the appointment, then her right remains; McClellan's Appeal, 4 Harris, 116; Shomos Appeal, supra. But there is no dissatisfaction expressed by him with Josiah, and the other children and grandchildren appear to be indifferent, or about equally divided in their preferences.

The decisions invoked hold that letters ought not to be granted to an heir who has the principal part of the estate in his hand, or who is a litigant of the estate, as explained in Shomo's Appeal, supra, Ellmaker's Estate, 4 Watts 34; Beeber's Appeal, 2 Jones 157; Kellberg's Appeals, 5 Norris 129. But admitting that there is a question of a loan or gift of money by the decedent to Josiah or his wife, a suit is not all necessary, in as much as the Orphans' Court by means of exceptions to the account of the administrator can pass upon the question of surcharging him or not. An executor in the settlement of his account is chargable with a debt due

by himself to the estate: Bull's Appeal; 12 H. 24. If these letters should be revoked and granted to another the same question will arise as to a loan, gift, or advancement in the ascertainment of Josiah's share in the distribution. This cannot constitute a litigation or antagonism to the estate in the sense of the decisions cited, else estates would very frequently have to go to strangers, as all the children may have had money, and the question of gift or a loan is not avoided by a change of administration. In settlements of that character the Orphans' Court alone has authority: Bull's Appeal, supra; Dundas' Appeal, 23 P. F. S.

74.

There being no such antagonism or unfitness as will disqualify Josiah as ad

ministrator, the contention between him and Jacob can only be a question as to who is entitled to the commissions, which is not a matter of sufficient interest for the law to consider. The Register has the right to name any of a class, if a fit person, and he has certainly been in no default in naming one of the sons in whose favor the eldest son withdrew, and this court cannot reverse his action except for cause shown, which does not appear here. The appeal is dismissed.

December 3, 1883, CLAYTON, P. J.The case was carefully tried upon its merits. The verdict was in favor of the will. While the evidence would have sustained a verdict the other way, yet, if there was no error in the law, the decision of the jury should stand.

The first error alleged was in charging the jury that the commission in lunacy, finding the testator a habitual drunkard, was not conclusive evidence of his incom

petency to make a will. The jury were charged that the proceeding in lunacy was prima facia evidence of incompetency, but not so absolutely conclusive as to preclude the jury from finding from its evidence a lucid interval at the time the will or codicil was made. We can see no good reason for changing our views upon this part of the law. The decisions of the Supreme Court are direct upon this point, and in accordance with the charge to the jury.

The second error assigned is to the It is alleged jurisdiction of the court. that the the domicil of the testator was in Chester county. the whole case. upon the trial.

If this is so, it is fatal to The point was not raised Although an objection to the jurisdiction of the court may be made at any time, the evidence to support it ought to be very clear, especially where the plea is not filed until after a trial on the merits. tator's domicil to be made one of the Neither party asked the tesissues to be tried by the jury. We have

The Act of Assembly making Good Friday a legal holiday does not forbid the court to sit on that day.

Issue devisavit vel non.

Rule for a new trial.

upon the subject and do not think it sufficient, at this late day, to sustain the plea.

The evidence shows the testator to have been a resident of Delaware county at the time his will and codicil were made. The commission of lunacy issued

while his domicil was undoubtedly in this county. After his committee were appointed he removed to Chester county and, undoubtedly, died there. His codicil directs his body to be buried at Media, in Delaware county. As a change of domicil is always a question of intention, the direction as to his burial has some bearing on the subject. Prima facia, he was incapable of forming a deliberate intention to change his domicil, and the burden is upon those who allege a change to prove the intention of the testator to abandon his domicil in Delaware county and adopt Chester county as his permanent home. Williams on Ex., 9, § 1522, note P. "A domicil cannot be acquired by a party's own act during pupilage nor until a party is sui juris.” School Directors vs. James, 2 W. & S., 558. See also Estate of John Thompson, 37 Leg.

Int., 290.

The next alleged error is, that the court sat upon Good Friday, and, as this is a legal holiday, the proceedings are void. The verdict was not rendered upon Good Friday. We do not construe the Act of Assembly as forbidding the court to sit upon that day. The matter is discretionary with the court. As the verdict, however, was not rendered on Good Friday but the day after, and no objection was made at the time, the error, if one, cannot affect the proceedings.

The court permitted the will to be read to the jury on proof of the due execution of the codicil. This was in conformity with the well-settled rule, that a properly executed codicil will revive and republish the will to which it relates. Neff's Appeal, 12 Wr., 501. There was, therefore, no error in this. Upon the whole case we are satisfied there was no error in

law. If the jury erred the court cannot review its mistakes. The verdict must, therefore, stand.

Rule discharged.

Decedant's Estate-Will-Legacy-Collateral inheritance tax-When liable for-Out of what fund payable.

The will of testator provided that the sum of $500 should remain charged upon his farm forever, the interest on $100 thereof to be paid annually to the Caernarvon Ceme

tery Association for dressing and caring for his cemetery lot and grave; the interest on $200 thereof to be paid annually to the same association for fencing and keeping said cemetery in good order and repair, and the interest charge of the Methodist Episcopal Church in Churchtown on the remaining sum of $200 to be paid to the minister in

for preaching the gospel.

The facts agreed upon were as follows: John S. Hurst, late of Caernarvon

Township, Lancaster County, died November 21, 1881, having made his last will dated November 12, 1878, duly proved February 7, 1882, and remaining on file in the Register's Office at Lancaster, in and by which among other things he bequeathed, as follows, viz:

"Tenth. Also I order and direct that the sum of Five hundred dollars ($500) of the value of the farm or plantation on which I now reside remain in said property forever, and be applied in the manner and form following, to wit:

"A. The interest of One hundred dollars ($100) at five per cent., to be paid each and every year to said Caernavon Cemetery Association, and to be used to defray the expenses for dressing and caring for my said burial lot and grave.

"B. The interest on Two hundred dollars ($200) at five per cent., to be paid each and every year to the Caernarvon Cemetery Association and to be used to defray expenses for fences and keeping said cemetery in good order and repair.