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to the owner of the building, and was set open a wide door to fraud, and prove a up and operated by him.

It would seem constant temptation for subterfuge and from the opinion of Butler, P. J., that he false dealing ; at the same time, that it attached some importance to this fact of would relieve certain classes of manufacthe ownership of the building, as well as turers from their fair share of the burden the machinery. He held that two things of taxation. were necessary to convert machinery into The law makes manufactories of all real estate, viz.: ist, that it must be per- descriptions real estate, and subjects them manently attached to a building; and ad, to taxation. The defendants are the that it must be so attached by the owner

owners of the kind of property contemof the building. It seems to us, however, plated, and therefore, in our judgment, that the permanency which the learned they should pay the tax assessed upon judge had in mind, must have meant

their machinery. And, as we understand nothing more than such a duration, or

the case of Patterson v. Delaware county period of time, as would naturally be re

20 P. F. S. 381, this is the interpretation quired to use it up, or wear it out. In

of the law adopted by our Supreme Court. other words, if the intention were to use

It is now ordered that judgment be enthe machinery for a given purpose so long tered in favor of the plaintiffs, and against as it would fairly perform the functions

the defendants, for $2.38 and costs of suit. for which it was designed, then it would be a permanent attachment to the build

Luzurne County. ing

Caffrey v. Carle. In the case before us, there is nothing

On a rule to open a judgment, unliquidated damages to show any purpose or intention to re- arising from a contract not a part of the judgment in con

troversy cannot be introduced to reduce the amount of the move the machinery from the leased

jurigment. premises at any fixed time.

We assume,

Representations, when to be regarded as no more than

the expression of an opinion. therefore, that the defendants will have the right to use it in their manufacturing

Rule to show cause why judgment business, so long as they see proper to do should not opened, and defendant let into so, or until it shall be rendered useless by

a defense. wear.

And in this view of the case, of October 8, 1883, RICE, P. J.-The dewhat moment is it that the machinery was fense to this judgment, in all material parattached to the building by a lessee and ticulars, rests upon the uncorroberated not by the owner of the land ? As many testimony of the defendant. He is congoods will be made and as many work- tradicted by the plaintiff, and his testimony men will be employed, in the one case as

is inconsistent with the terms of the writin the other. The profits of the business ten agreement, which was drawn up to will be substantially the same, as if the express the final views of the parties after owner were also the manufacturer. The a series of conferences and negotiations, protection which the government and the and is also inconsistent with the testimony laws afford to citizens engaged in any of Mr. Downing, who drew up the paper lawful calling, is extended to the person at the request of the parties. It is quite and the property of a lessee as well as of possible that there was an agreement the owner of the soil. And therefore it i between the parties as to the hiring would seem, that the machinery should be of the plaintiff's team, but the weight of taxed without reference to the nature of the parol testimony and the written agree

ment itself show that it was not part of the title by which the premises upon the consideration of the note and judgwhich it is extended, are held. Clearly, ment in controversy, nor of the agreement any other construction of the law would for which the note was given. This

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being the case, the unliquidated damages to the real estate and proceeded to hear for which the plaintiff may be liable upon and determine the case. The defendant a breach of the agreement of hiring can- took no part in the trial after the presennot be off-set here. It is not alleged that tation of the affidavit. the execution of the agreement of sale

The Act of Assembly gives a justice no was procured by fraud, nor that it does discretion in the matter. By its express not contain all that the parties intended provisions, if the affidavit is made, his that it should. In the absence of fraud jurisdiction is ousted, no difference what and mistake, and of an express warranty, the fact may be with regard to the matter. the alleged representations by the plain- He cannot inquire into or determine the tiff that there was ice enough to supply truthfulness of the affidavit, but must the defendant's customers, especially as dismiss the proceeding and remit the means of knowledge as to the quantity plaintiff to the Court of Common Pleas. were equally accessible to both parties, (Williams v. Smith, 3 Clark 22.) and as the defendant did not purchase The only question presented is, whether until he had in fact examined for himself the attorney at law of a defendant can must be regarded as no more than the ex- make the affidavit. The language of the pression of an opinion, and not as the act is that if the defendant shall, before means which produced the bargain. trial of the action, make oath or affirmaHence, under the well recognized author- tion, &c.” We do not regard it as imperaities, they do not constitute an equitable tive that the defendant, and he alone, defense to the judgment.

shall make the affidavit. Circumstances

may exist rendering it impossible for The rule is discharged.

for him to do so, and yet where he should not be prevented from interposing the

provisions of the statute. Where a simiChester County.

lar question has arisen under the affidavit Acker v. Moore.

of defense law, the court have held that Act of 22d March, 1814--Affidavit of at

the defendant should make the affidavit,

unless there is some special reason to the torney sufficient to oust jurisdiction of contrary, satisfactory to the court. This justice of peaceConstruction of Stat- class of cases hold that it is not imperautes.

tive that the affidavit should be so made The affidavit that the title to lands will come in question by the defendant personally, but that it in an action before a justice of the peace, under the Act should be so niade unless cause is shown of March 22, 1814, may be made by the attorney for the defendant, and the jurisdiction of the justices thereby to the court why it should be made by

another. (Sleeper v. Dougherty, 2 Whar. The decisions under the affidavit of defense law hold that it is not imperative that the affidavit should be made

ton 177; Hunter v. Peilly, 12 Cassey 509; by the defendant personally, but that it should be so Burkhardt v. Parker, 5 W.&S.480; Gross made unless cause is shown to the court why it should be made by another.

v. Painter, 1 W. N. C. 154; Cline v. WalOctober 20, 1883. FUTHEY, P. J.-The lace, Ib. 293; City v. Devine, Ib. 358.)

) —

In the case before us, it satisfactorily record of the justice shows that this was appears that the question whether the an action of "trespass for damage done title to land is involved is one purely of real estate of plaintiff.” The defendant's law, and, being so, we see no reason why attorney, C. H. Pennypacker, Esq., before the affidavit should not be properly made the trial, presented his affidavit, made on

by the attorney. If made by the defend

ant personally, it would be done upon the behalf of the defendant, that the title to opinion given him by his counsel. lands would come in question in the act- We must reserve the proceedings and ion, and asked that the justice dismiss the allow the parties to determine their rights same under he provision of the Act of in the Court of Common Pleas, which 220 March, 1814 (Purdon, 867, pl. 120). think the amount in controversy will war

has unquestioned jurisdiction, if they The justice determined that the defendant rant it. could not dispute the title of the plaintiff, Proceedings reversed.

ousted.

VOL. IV.

YORK LEGAL RECORD. "I have nothing against either one of

them as between my brother Jacob and THURSDAY, JANUARY 31, 1884.

NO 48.

Josiah. It would make no difference to

me which of these would administer." ORPHANS' COURT.

He testifies further : "I signed the paper for brother Josiah of my own free will at

the time I signed it." When asked Groves' Estate,

whether he was not in favor of Josiah Right to administerDiscretion of Reg- continuing to be the administrator he

ister. said: I know I signed two papers.

I While the expressed wish of the decedent that A. should administer on her estate, would be strong ground to sus

would rather withdraw my name and adtain his appointment if made by the Register or to secure

minister myself since it has gone so far. his appointment pending a question of discretion before the Register, it is not a sufficient reason to reverse the I have answered. There has been so grant of letters given to a fit person.

Appeal of Jacob Grove, from the decree much said that I would rather withdraw of the Register of Wills, granting letters my name and administer myself.” But of administration on the estate of Margaret this wish of his and the paper filed in his Grove deceased, to Josiah Grove.

behalf at the argument, did not indicate W. C. Chapman, for appellant.

on his part any objection to Josiah acting

as administrator. They only show that S. H. Forry, for appellee.

he desired it to be understood, in case of January 12, 1884. GIBSON, A. L.J.- the reversal of the grant of letters to JosThe appellant and appellee are both sons iah, he had not waived any right to of the decedent. This grant of letters to administer himself. This is, it is presumone of a proper class is an exercise of the

ed, in anology the case of a widow who discretion of the Register, and he has no has renounced in favor of a certain person power to revoke letters thus granted ex

and the person named by her does not cept for sufficient cause ; Shomos Appeal, secure the appointment, then her right 8 P. F. S. 356. If properly exercised his remains; McClellan's Appeal, 4 Harris, discretion is not the subject of review in 116; Shomos Appeal, supra. But there is the Orphans' Court; Brubaker's Appeal, no dissatisfaction expressed by him with 2 Ont. 24. The only ground for reversing Josiah, and the other children and grandhis action would be that of personal disa- children appear to be indifferent, or about bility of the appointee.

equally divided in their preferences. The expressed wish of the decedent in The decisions invoked hold that letters her last illness that the appellant should ought not to be granted to an heir who settle up her estate, would be strong has the principal part of the estate in his ground to sustain his own appointment hand, or who is a litigant of the estate, as had it been made and a contest raised, explained in Shomo's Appeal, supra, Ell

, or to secure it pending a question of dis- maker's Estate, 4 Watts 34; Beeber's Apcretion before the Register ; but I do not peal, 2 Jones 157 ; Kellberg's Appeals, think it is of any weight to reverse the 5 Norris 129. But admitting that there grant of letters if already given to a fit is a question of a loan or gift of money person of the right class. The question by the decedent to Josiah or his wife, a of disability as a ground of reversal still

suit is not all necessary, in as much as the remains. Nor is the conduct of Josiah in

Orphans' Court by means of exceptions to securing the waiver of John's supposed

the account of the administrator can pass rights of seniority, even if he had used language of intimidation in case of John's

upon the question of surcharging him or signing in favor of Jacob, a sufficient not. An executor in the settlement of ground for reversal. John testifies : his account is chargable with a debt due

а

by himself to the estate : Bull's Appeal ; The testator, by a decree of the court, 12 H. 24. If these letters should be re- had been declared to be a habitual drunkvoked and granted to another the same ard. His will was contested by the heirs question will arise as to a loan, gift, or on the ground of incompetency.

The advancement in the ascertainment of jury found in favor of the will and thereJosiah's share in the distribution. This

upon

this rule was taken. cannot constitute a litigation or antagon

December 3, 1883, CLAYTON, P. J.ism to the estate in the sense of the de- The case was carefully tried upon its cisions cited, else estates would very fre- merits. The verdict was in favor of the quently have to go to strangers, as all the will. While the evidence would have suschildren may have had money, and the tained a verdict the other way, yet, if question of gift or a loan is not avoided

there was no error in the law, the decision by a change of administration. In set

of the jury should stand. tlements of that character the Orphans'

The first error alleged was in charging Court alone has authority : Bull's Appeal, supra; Dundas' Appeal, 23 P. F. S.

the jury that the commission in lunacy,

finding the testator a habitual drunkard, 74.

was not conclusive evidence of his incomThere being no such antagonism or petency to make a will. The jury were unfitness as will disqualify Josiah as ad- charged that the proceeding in lunacy ministrator, the contention between him

was prima facia evidence of incompeand Jacob can only be a question as to tency, but not so absolutely conclusive as who is entitled to the commissions, to preclude the jury from finding from its which is not a matter of sufficient in- evidence a lucid interval at the time the terest for the law to consider. The Re

will or codicil was made. We can see no gister has the right to name any of a good reason for changing our views upon class, if a fit person, and he has certainly this part of the law. The decisions of the been in no default in naming one of the Supreme Court are direct upon this point, sons in whose favor the eldest son with

and in accordance with the charge to the drew, and this court cannot reverse his

jury. action except for cause shown, which does not appear here. The appeal is

The second error assigned is to the dismissed.

jurisdiction of the court. It is alleged that the the domicil of the testator was in

Chester county. If this is so, it is fatal to COMMON PLEAS.

the whole case. The point was not raised upon the trial. Although an objection to

the jurisdiction of the court may be made C. P. of

at any time, the evidence to support it Hannum vs. Worrall.

ought to be very clear, especially where WillCompetency of testator-Habitual

the plea is not filed until after a trial on drunkardChange of domicilLegal tator's domicil to be made one of the

the merits. Neither party asked the tesholiday.

issues to be tried by the jury. We have It is not conclusive evidence of incompetency to make carefully examined the evidence bearing a will that the testator has been found, by a commission

upon the subject and do not think it suffiin luvacy, to be a habitual drunkard. The Act of Assembly making Good Friday a legal holi

cient, at this late day, to sustain the plea. day does not forbid the court to sit on that day.

The evidence shows the testator to Issue devisavit vel non.

have been a resident of Delaware county

at the time his will and codicil were Rule for a new trial.

made. The commission of lunacy issued

Delaware Co.

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tax.

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while his domicil was undoubtedly in this

Lancaster Co. county. After his committee were ap- Hurst's Executor v. Caernarvon Cemetery pointed he removed to Chester county

Association et al. and, undoubtedly, died there. His codicil directs his body to be buried at Media,

Decedant's Estate-Will-Legacy-Colin Delaware county. As a change of

lateral inheritance tax-When liable domicil is always a question of intention, for-Out of what fund payable. the direction as to his burial has some

The will of testator provided that the sum of $500 should bearing on the subject. Prima facia, he

remain charged upon his farm forever, the interest un $100 thereof to be paid anpually to the Caernarvon Ceme

tery Association for dressing and caring for his cemetery was incapable of forming a deliberate in

lot and grave; the interest on $200 thereof to be paid antention to change his domicil, and the

nually to the same association for fencing and keeping

said cemetery in good order and repair, and the interest burden is upon those who allege a change 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. to prove the intention of the testator to

HELD. That the portion of the legacy which was to be abandon his domicil in Delaware county used for dressing and caring for the cemetery lot and

grave of testator was not subject to collateral idheritance and adopt Chester county as his permanent home. Williams on Ex., 9, § 1522,

HELD ALSO, that the other portions of the legacy were liable for collateral inheritance tax, and that as the testa

tor had made no provision for its payment out of any note P. “A domicil cannot be acquired other fund or out of the residue of his estate, the same

should be deducted from the money so directed to be by a party's own act during pupilage nor charged on said real estate. until a party is sui juris." School Di

Case stated. rectors vs. James, 2 W. & S., 558. See

This suit was an amicable action agreed also Estate of John Thompson, 37 Leg. upon and stated for the opinion of the Int., 290.

Court. The next alleged error is, that the court

The facts agreed upon were as follows: sat upon Good Friday, and, as this is a

John S. Hurst, late of Caernarvon legal holiday, the proceedings are void. Township, Lancaster County, died NoThe verdict was not rendered upon Good

vember 21, 1881, having made his last Friday. We do not construe the Act of will dated November 12, 1878, duly proved Assembly as forbidding the court to sit February 7, 1882, and remaining on file in upon that day. The matter is discretion- the Register's Office at Lancaster, in and ary with the court.

As the verdict, how- by which among other things he beever, was not rendered on Good Friday

queathed, as follows, viz : but the day after, and no objection was

"Tenth. Also I order and direct that made at the time, the error, if one, cannot affect the proceedings.

the sum of Five hundred dollars ($500)

of the value of the farm or plantation on The court permitted the will to be read which I now reside remain in said propto the jury on proof of the due execution erty forever, and be applied in the manof the codicil. This was in conformity

ner and form following, to wit : with the well-settled rule, that a properly executed codicil will revive and republish lars ($100) at five per cent., to be paid

A. The interest of One hundred dolthe will to which it relates. Neff's Appeal, 12 Wr., 501. There was, therefore,

each and every year to said Caernavon no error in this. Upon the whole case

Cemetery Association, and to be used to we are satisfied there was no error in defray the expenses for dressing and carlaw. If the jury erred the court cannot ing for my said burial lot and grave.

“B. review its mistakes. The verdict must,

The interest on Two hundred doltherefore, stand.

lars ($200) at five per cent., to be paid Rule discharged.

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.

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