have been sentenced to the payment of a justice. There was no authority to forfine, he shall not be entitled to make feit the bail at that late day. The recognsuch application until he shall have been izance entered into was for the appearin actual confinement, pursuant to such ance of the defendant at the next or Ocsentence, for a period of not less than tober term. So far as the bail is concernthree months; and in the decision of the ed, this obligation certainly could not Supreme Court in Kishbaugh's petition, without express consent be enlarged so as supra, construing said section of the in- to make him responsible for a default at a solvent laws. It is the sentence by the subsequent term; (Keefhaven vs. ComCourt to the payment of a fine which monwealth, 2 P. & W. 240; Mishler vs. determines the status of the prisoner, re- Commonwealth, 62 Pa. 55), and we do garding his right to discharge under the insolvent laws.

It appears therefore clear that this petitioner is not entitled to be discharged in this proceeding and his application must be refused. And it is accordingly refused.

Q. S. of

QUARTER SESSIONS.

Com. v. Somers.

Recognizance of bail-Forfeiture.
Where in a criminal case a defendant has
given bail before a magistrate for his appear
ance at the next term of the Court of Quarter
Sessions of the county, he is only bound there
by to appear at that term. He can not there-
fore be called at a subsequent term and his

bail be then forfeited.

not see why this is not true of the defendant also. His undertaking was in terms the same as that of the bail. He was simply to appear at the next term of the Quarter Sessions to answer such charges as might be there preferred against him, and not depart the court without leave. The obligation was not a continuing one so as to bind him to apLackawanna Co. pear indefinitely at any subsequent term, at which the Commonwealth might choose to follow up the charge. It was the duty of the magistrate to return the case to the term of the court to which the defendant was held to appear. If for any sufficient reason the district attorney was not prepared to go on with it at that time a continuance of it could then have been obtained, and the defendant either put under new bail, or the bail already in be forfeited to be respited upon the defendant's appearance at the next term. This course not having been pursued, the proceedings fell with the term to which they were returnable. Thereafter the defendant was out of court, and under no obligation to appear. It follows that when he was called and his bail forfeited, the court had no hold upon him and the proceedings were corum non judice and void. This defense could no doubt be made upon the scire facias to enforce the forfeiture but the defendant has a right to have the record as it should be here.

If for any reason the case is not disposed of at the first term so that the case is to be con

tinued, the defendant should be called and re

quired to give new bail, or the bail already in be forfeited to be respited upon the defendant's appearance at the next term.

Rule to remit forfeiture of bail. The facts sufficiently appear in the opinion.

E. C. Newcomb, for rule.

John P. Kelly, Dist. Attorney, contra. December 4, 1893. ARCHBALD, P. J. -On October 8, 1887, a charge of false pretence was preferred against the defendant before Alderman Post of Scranton, and the defendant having been arrested thereon gave bail before Alderman Roesler for his appearance at the next term of this court. That term began on Monday, October 17, and continued three weeks, and was followed by a term in January, another in April and a third in June. The transcript of the case was not filed however until March 14, 1888, and no indictment was found until the meeting of the grand jury for the June. term. At the April term the defendant was called, and on failing to respond his bail was forfeited. Against this complaint is now made, and as we think with

The rule is made absolute, the forfeiture stricken off, and the defendant dis charged from his recognizance.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Supreme Court cases.)

Attachment under the act of 1860-Return-Affidavit - Bond Fraud.-The Sheriff returned that he produced the writ to the defendant, and made the con

tents thereof known, that he levied and "That the said one acre of land shall attached certain goods, describing them, never be used as a place of sepulture, then in his hand, by virtue of a previous and that no other buildings be put on the levy under fi. fa.; that as soon as possi- same except the church and Sundayble he caused a copy of the writ and in- school building, with the needful shedventory to be made, and endeavored to ding for the same, the shedding to be serve the same upon defendant, but could placed on the side of the said acre of land not find him in the county; that he fur- next to the Villa Nova College land.” ther tried to leave said copies at the de- HELD, (1) That these words do not imfendant's residence, but found the same ply that the lot should be used for church unoccupied and no person with whom purposes forever, nor do they amount to they could be left; that the goods were a condition the breach of which will work subsequently sold under the fi. fa. and a forfeiture of the estate. (2) That, in delivered to the purchasers. HELD, that any event, no one but the grantor, his this was a substantial compliance with heirs or assigns, can enforce the observthe law. Where the writ is made re-ance of the condition.-Cushman v. The turnable, according to law, the fact that Church of the Good Shepherd, (Delaware the return day is not mentioned in the C. P.) 5 Delaware County Reports 370. praecipe is immaterial. Where, from the Constable-Suits against-Altering refacts alleged in the affidavit, it follows, as turn day.-No action can be brought a necessary legal result, that the defend- against the constable for altering the reant is justly indebted to the plaintiff, the turn day in a summons before serving it omission of the word "justly" is not upon defendant. Such an alteration is fatal. Where the plaintiff's affidavit is entirely a matter between the justice of made on information and belief, he must the peace and the constable, and the forstate the sources of his information, or mer recognizes and adopts the alteration the facts on which his belief rests, or, at when he proceeds to hearing and judgleast, that he expects to be able to prove, ment on the date as altered. It is the if required, that which he believes to duty of a defendant taking out a certioexist. The affidavit may be made by the rari after execution has been issued plaintiff's attorney, or by one who signs against him on an alderman's judgment the accompanying bond as attorney in to appear before the alderman, satisfy fact for the plaintiff, and whose power of him that he is entitled to a stay of execuattorney is filed in the case. An affidavit tion, and demand that the writ be recallwhich avers that the debt is a certain ed.-Ream's Appeal, 11 Lancaster Law sum or "thereabouts," is fatally defec- Review 25.

tive, unless it is averred that the amount Deed Reservation-Construction.--cannot be stated with greater certainty. When the language making an exception -Simon et al. v. Johnson, (Luzerne C. or reservation in a deed is doubtful, it P.) 7 Kulp 166. should be construed more favorably to A deed for a building lot Boroughs-Division of into wards. the grantee. The confirmation absolutely of the report contained a restriction that "all buildings of commissioners dividing a borough into upon said lots shall be erected not less wards, establishes of itself, without fur- than fifteen feet back from the fence line." HELD, that the question as to ther action of the court, each ward as a separate election district. The act of whether a porch built in front of a house Assembly providing for the registration and beyond the fifteen-foot limit would of voters does not disqualify an elector be against the spirit and meaning of the from voting because his name is not on reservation, would depend upon the manthe registry list, nor does it render illegalner of construction. A porch does not all votes because there is no registry list. necessarily convey the meaning of a -In re Division of Columbia Borough, "building."-Ogonts Land Company v. (Lancaster Q. S.) II Lancaster Law Johnson, (Montgomery Q. S.) 9 Montgomery Co. Law Rep. 209. Election-Naturalization, how proved Church-Trust-Restriction in deed.--Duty of election officers.-The regisThe deed conveying land to an incorpor- tration of a naturalized citizen, in the ated church contained the following: manner prescribed by the law, with the

Review 9.

letter "N" marked opposite his name, is tain individual taxpayers petitioned the prima facie evidence of the citizen's right court, under the Act of March 23, 1877. to vote. Unless the vote of one so regis- P. L. 20, for leave to intervene, alleging tered is challenged it is the duty of the merely the want of funds in the city election officers to receive and count it; treasury. HELD, I. That under the Act but if challenged, it cannot be received of 1889 the City Councils have power without the production of the naturaliza- to increase the police force from time tion papers unless the citizen has been a to time, at their discretion. 2. That this voter in the district for the time specified proceeding is in the nature of a petition by the law. When a vote is challenged by a party interested to open a judgment upon the ground that the proposed voter and be let into a defence, and is governed is not a citizen, proof of citizenship must by the same rules and principles. 3. That be made either by affidavit of the placc even if the court has the power to of birth or by actual production of natu- open the judgment the facts are not suffiralization papers. When it appears that cient to warrant it in directing an issue to illegal votes have been received and try the allegations set forth in the peticounted by the election officers the court tion.-Driscoll et al. v. The City of Cheswill open the ballot box and throw out ter, (Delaware C. P.) 5 Delaware Co. the illegal ballots. When it appears that Rep. 387. a ballot was illegally accepted and counted it must be thrown out upon contest, notwithstanding that, subsequent to the election, the legal qualifications of the voter had been proved. Proof of qualification must be made when the vote is offered. Sharon Hill Contested Election, (Delaware Q. S.) 5 Delaware County Reports 381.

Railroads Discrimination.—A common carrier may be compelled, in an action for money had and received, to repay an excess over the freight which lawfully may be charged, whether the overcharge was in violation of a statute fixing the rate, or grew out of an undue and unreasonable discrimination, under a secret agreement of which the shipper was ig Municipal corporation Petition of norant at the time of payment. To entitle taxpayers-Authority of Court of Com- one to recover for discrimination in rates mon Pleas. After the regular appropria- for the carriage of goods, it must appear tions for the year 1893 had been made, that the discrimination was made for like the Councils of the City of Chester pass- service, and under like conditions in all ed an ordinance authorizing an increase material respects, and the burden of of the police force and an ordinance mak-proof is on the plaintiffs.-Paine & Co. v. ing an additional appropriation to the po- The Pennsylvania Railroad Co. (Luzerne lice department to pay the salaries of po- C. P.) 7 Kulp 187. licemen. The additional policemen were Street railway on turnpike-On counappointed by the Mayor and Select Coun- try road-Turnpike grade.-A street railcil and warrants were drawn for the pay-way company, occupying by condemnament of their salaries. The City Coun- tion proceedings a turnpike, is not au troller refused to sign the warrants, al- thorized to make any change in the grade leging that the extra appropriation was thereof, except so far as a reasonable contrary to the provisions of the Act of necessity may require in laying a surface 1889 for the government of cities of the railway thereon. It is not bound to lay third class, that the regular appropriation down a flat rail upon so much of the made at the beginning of the year was turnpike as may properly be called a only sufficient to pay the salaries of the country road in distinction from a street. old policemen and could not afterwards It must lay down the rail it has adopted be increased, and that there was there- in such a manner as to do as little injury fore, no money in the police department to the turnpike, and to offer as little hinappropriation available for the purpose. drance to the public travel thereon, as is Actions were brought against the city, by reasonably possible. Its line of rails the additional policemen, for the recovery must conform to the grade of the turnof their salaries, and judgment was given pike as closely as is reasonably possible. by the alderman against the city. Upon-Berks & Dauphin Turnpike Road v. the filing of transcripts in the Court of Lebanon & Myerstown Street Railway Common Pleas, the Controller and cer- Co., 50 Legal Int. 468.

the burden of proof on himself. claims an estate in land, not only without a deed, but in opposition to the written title. Records and deeds are not easily overthrown, as is manifest enough from the stringent rules this court has often laid down in cases of parol sales. The whole doctrine of resulting trusts is

Equity-Competency of Witnesses-Par- a violation of the sound principles on

tition-Resulting trust.

which the statute of frauds is based, and In a controversy over the title to real estate ought not to be favored, except when the wherein brothers claiming by descent from a trust originated in the bad faith of the deceased father are plaintiffs, and their sister nominal purchaser. The extension of it claiming by deed from the father, is defend- to cases in which the cestuis que trust ant,-Held, that the brothers were competent has voluntarily placed his rights in such a condition that he can only establish them by parol, is of doubtful policy, and like other departures from the statute of frauds, has probably done more mischief than it has ever corrected."

witnesses in their own behalf.

To establish a resulting trust by parol the evidence must be clear, explicit and unequivo

cal.

Exceptions to Master's Report.
O. Serfass and F. Reeder for plaintiffs.

H. W. Scott for defendant.

Now, the case made by the plaintiff's evidence may be summed up briefly as Dec. 4, 1893. SCHUYLER, F. J.-This follows. Immediately after the sheriff's is a bill in equity for the partition of a lot deed was acknowledged the decedent enof ground in the City of Easton. The tered into possession of the lot; he made parties to the bill are respectively the improvements upon it; it was assessed widow and four sons of Aaron Serfass, in his name and he paid the taxes upon deceased, plaintiffs, and a daughter of it for ten years; he leased the lots, colsaid decedent, defendant. The lot in lected the rents, served quit notices and question was purchased by the decedent the like, all in his own name. Moreover, at a sheriff's sale in the year 1878. He he caused other deeds to be made to the did not, however, take the title in his own defendant for mere convenience of subname, but by his direction the deed was made to the defendant. Had the deed been made to a stranger a resulting trust in favor of the decedent would have followed by implication of law, but having been made to a child the presumption is that it was intended as an advancement: Edwards v. Edwards, 37 Pa. 377. But this presumption may be rebutted: Ib. In other words it was competent for the plaintiffs to show, notwithstanding the relationship of the parties, that the intention was to create a resulting trust. Have they done so?

sequent transfer of the title, because his wife refused to join with him in making deeds unless she received a portion of the sale money. It may be conceded that if these facts stood alone they would not only justify, but perhaps command a finding that a resulting trust had been established. But they do not stand alone.

The defendant is a maiden lady and a school teacher by profession, whose duties called her away from Easton much of her time. This rendered it necessary for her to have some one to look after the lot, and the undisputed evidence is that To establish a resulting trust the evi- she employed the decedent for that purdence must be "clear, explicit and un- pose. She so testifies; her competency as equivocal”: McGinty v. McGinty, 63 Fa. a witness was not questioned; she is cor42. In ordinary cases questions of fact roborated by other facts in the cause; are determined by the weight of the evi- her testimony is consistent with the apdence, but in cases like the present a parent acts of ownership attributed to the higher order of proof is required. The decedent; she is uncontradicted and her reason for this will appear from the fol- testimony was evidently credited by the lowing citation: "The party who under- master. As to the other deeds above retakes to establish a resulting trust by ferred to, she frankly admitted, and it parol evidence," says Black, C. J., in may have been for the purpose of getting Strimpfler v. Roberts, 18 Pa. 298, "takes this admission that her competency was

not objected to; that the deeds were giv-having been filed to the Auditor's report been with the object mentioned, but the cause of the disallowance of this claim. HELD, sting of her admission was cured by her that the exceptions must be dismissed. The decisions are based upon the conclusion statement that the deed in controversy that the right of the widow to the real or perwas not so given. Nor is this all. There is sonal estate appraised to her is vested upon its abundant evidence of declarations by the selection and appraisement and the setting decedent that the lot was not his, but be- apart of the same to her in pursuance of the longed to the defendant. It is also in evi-, election made 'by her. dence that in later years the decedent had the assessment of the lot changed the reason that she died on the night of the day from his name to that of the defendant, and that the defendant with the knowledge of the decedent built a house on the lot which cost over $2,000.

praisement in the life time of the widow, for

Where there was no demand, election, or ap

upon which letters testamentary were granted. There was, and could be no action by her to vest in her any title to any of the estate of her deceased husband, as exempt goods, moneys, or property.

The acts under which the claim is made require an election by the widow, to retain her exemption, and the property chosen by her is required to be appraised to her and her children, by the appraisers of the other personal

estate.

Exceptions to auditor's report.

The report of the auditor, Geo. S. Schmidt, Esq., after setting forth the facts (found in the Court's opinion pro

ceeds as follows:

On the whole evidence the learned master has found that there was no resulting trust and we entirely agree with him. In reaching this conclusion the master refused to consider any testimony as to declarations by the decedent in his own favor, made either before or after the passing of the sheriff's deed. There was no error in this: Edwards v. Edwards, supra. We think he was also right in holding that the plaintiffs were competent witnesses in their own behalf, notwith- The Act of Assembly granting the exstanding the decision in King v. Hum- emption of property to the value of $300 phreys, 138 Pa. 310. We are unable to was approved April 14, 1851, and is in reconcile that decision with either the act words following: "The widow or chilof assembly, or the earlier case of Van dren of any decedent dying within this Horne v. Clark, 126 Pa. 411, or the com- Commonwealth, testate or intestate, may paratively recent case of Brose's Estate, retain either real or personal property 155 Pa. 619. With the hardship of the belonging to said estate to the value of case at bar we can have no concern. If three hundred dollars, and the same shall it were otherwise the result might be dif- not be sold, but suffered to remain for ferent. At it is we hold that the plain- the use of the widow and family; and it tiffs have failed to establish a resulting shall be the duty of the executor or adtrust and that they have consequently no ministrator of such decedent to have the standing in the court. It follows in ac- said property appraised in the same mancordance with the recommendation of the ner as is provided in the act passed the learned master that their bill must be dis- 9th day of April in the year 1849, entitled missed. 'An Act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent,' &c. 1 Pur. Dig. p. 518.

Bill dismissed at the cost of the plaintiffs.

ORPHANS' COURT.

Notwithstanding the fact that this act and its supplements have received frequent constructions by the Supreme Widow's exemption -How claimed-Court, no case involving the precise point

Election.

Beck's Estate.

Testator died on the 13th of January, 1892, leaving a widow; one week later his will was probated and the same night his widow died, before any appraiser had been selected and without having made any demand for her $300 widow's exemption or designating what property if any, she intended to take. Upon a claim made upon testator's Executor by the widow's Administrator for the $300, before the Auditor, the claim was disallowed. Exceptions

counsel, nor has any such decision been in controversy has been cited by either found by your auditor. N. M. Wanner, Esq., appearing for the personal representative of the testator's widow, while admitting the general rule that the widow must present her claim within a reasonable time, takes the position that inasmuch as the widow died within twelve