OF CASES REPORTED IN THIS VOLUME. The syllabi are numbered consecutively. The black figures refer to these syllabi. ABATEMENT, 224. ACCOUNT, 1. ACTION, ON THE CASE, 153. ACTS OF ASSEMBLY. ADMINISTRATOR. 1. Petitioner asked for a citation on L., administrator of F., to file his intestate's account as administrator of J., twenty seven years after J.'s death. HELD, that the citation must be dismissed.-Finley's Estate, 201. 2. After such a lapse of time, the presumption has arisen that the estate was settled and the full distributive share of the petitioner paid to her, and it requires satisfactory and convincing evidence to rebut such presumption.-Ib. 3. Neither the surviving co-administrator, -the petitioner or her husband, are competent to testify to any matter occurring in the lifetime of the deceased administrator, the effect 5. The affidavit of defence averred that while not reduced to writing it was yet part whole agreement between the parties that the wells should not be dug unless grounds for a reservoir could be obtained, and that plaintiff was notified a few days after the making of the agreement the affidavit not be proof defence was cared." HELD such grounds insufficient in not setting forth that they had made proper efforts to obtain grounds and failed therein.-Emig & Co. v. Spatz et al., 13. 6. Only facts set forth can be considered not inferences.-Ib. 7. The affidavit was also insufficient in not furnishing a copy of the agreement the defendants say they signed, having denied the correctness of the agreement set forth in the statement. They were required to at least specify where the agreement they admit they signed differed front the copy in the statement.-76. 8. As the affidavit of defence sets forth some facts which would be a sufficient defence to the note as between the original parties, it is suffcient against the purchaser thereof, the note having the words "given for a patent, right" plainly marked on it.-Hoke v. Martin et al. 65. 9. Not only the invalidity of the patent but any want of consideration or failure of consideration, or breach of contract for which the note was given, as between the original parties is available to the defendants against any holder of the note.-Ib. 10. The affidavit of defence averred that defendants had borrowed $400 from M., and gave their bond therefor; that shortly afterward $200 of this amount with interest thereon was paid; that one of the defendants borrowed $500 from the plaintiff Association and gave his bond therefor; that said Association out of said $500, paid to M. the balance on his bond and had the same transferred to it, said payment and transfer being without the knowledge or consent of said defendants; and that about $275 had been paid by one of the defendants to said Association plaintiff, "which will about pay the balance due on said judgment." On a motion for judgment for want of a sufficient affidavit of defence, HELD, that the motion must be overruled.-Standard Building Association v. Fishel et al., 81. 11. The last allegation of payment of 'about' $275 to the Association since April 2, 1890, is not sufficiently specific and certain to prevent judgment.-1b. 12. The payment of the $200 out of the money borrowed from the Association, is sufficiently averred to be a bar to judgment, and while its force is weakened by the averment of such payment and transfer without the knowledge of the defendants, yet in favor of a trial by jury the Court will infer that such allegations were intended to apply only to the transfer of the judgment.-18. 13. The affidavit of defence set forth that the defendant was induced to become second endorser upon the note on which suit was brought by the fact that B. appeared upon the same as first endorser; and that F., the maker of the note, represented to the defendant that B. had endorsed said note, and that he would not have endorsed said note but for said representation, and that said B. after said endorsement and before the note was due informed defendant that he (B.) had not signed said note, and that his alleged signature was a forgery, all of which he expected to be able to prove at the trial of the case in court. HELD, to be sufficient to prevent judgment for want of a sufficient affidavit of defence.-Drovers and Mechanics Bank v. Hilde brand, 154. 14. It being averred that the note was put into circulation by fraud, the plaintiff will be required to prove that he took it before maturity and paid for the same.-Ib. TIME OF MAKING. 15. After plaintiff has entered rule to plead, joined issue, set the case down for trial, obtained a continuance and again set the case down for trial, it is too late to move for judgment for want of a sufficient affidavit of defence.-Hoke v. Martin et al., 65. 16. The filing of a supplemental affidavit of defence, which does not set up a new defence or materially change that already set up, does not give plaintiff a right to move for judgment after the proceedings above set forth.-16. AGENT. DUTY OF. 17. Martin & Co. assigned their accounts to Johns with authority to collect and receive the same, and apply the proceeds to their indebtedness to him without further accounting to them the amount of the indebtedness being fixed. A second judgment was afterward entered for an additional sum. A few days afterward Johns authorized defendant to collect and adjust said accounts. A few days later an agreement in writing was made between Johns and certain creditors of Martin & Co., by which all parties appointed Ehrehart as their agent to collect the accounts, and agreed that after Johns' claim was paid the balance remaining after deducting costs, should be paid to the creditors who signed the agreement. Defendant collected the sums and applied the proceeds to the payment of other claims against Martin & Co. Defendant averred that the judgment confessed to Johns was fraudulently confessed and for more than was due. HELD, not to be a sufficient defence.-Johns v. Ehrehart, 125. 18. The only authority the defendant has in the premises is that given in writing by the plaintiff and other creditors who signed the agreement. His duty is fixed. He was not invested with judicial power in the distribution of the proceeds. He was not to act and execute, and afterwards attempt to negative and destroy the authority which created his functious.—1b. 19. It is not material what representations were made by Johns as to the amount of his judgments or as to the probable amount of perceutage that might be realized by the other parties, which latter would manifestly be a matter of opinion or conjecture. Fraud without the concurrence of injury affords no ground for relief.-Ib. He 20. It was Ehrehart's duty to execute faithfully his subordinate and ministerial part under the agreement, and not to attempt to repudiate or vitiate the authority of his principals. was to serve them in the way plainly pointed out to him and which he has undertaken to do. In no other way did he obtain possession of the property and effects entrusted to him.—Ib. 21. There is no intimation in the affidavits that there was anything done by the debtor or the parties to the agreement, with the intention to hinder, delay or defraud creditors. The preference, if any was made, was one which the debtor had a right to make.—Ib. 22. It does not lie in the mouth of C. E. Ehrehart to deny or dispute the authority under which he has acted.. If he knew that his principals had no right to give it, he is personally responsible.-16. ADMISSION OF. 23. By article XVI., Sec. 8, of the Constitu- ATTORNEY-AT-LAW. tion, and the Act of June 13, 1874, a municipality is given the right of appeal from the award of a jury to assess damages caused by a municipal improvement.-Gardner v. City of Chester 31. ASSAULT AND BATTERY, 47. ASSAULT WITH INTENT, 82. ASSIGNED ESTATES. ཧ SALE OF REALTY. 24. Where there is great discrepancy between the appraised value and the amount bid at the sale and a creditor obligates herself to bid nearly twenty-five per cent advance, the Court will. closely scrutinize the sale, and if any irregularity appears which probably affected the bidding adversely, refuse to confirm.-Kast's Assigned Estate, 93. 25. The real estate having been advertised to be sold in two tracts, of which only one was offered separately, and then the two sold as a whole, there being a person present prepared to bid on the other tract, and the hay, straw and manure were not clearly and distinctly sold with the land, as agreed upon, the sale will be set aside.-Ib. ASSIGNMENT. OF CLAIMS, 17-22. ASSIGNMENT OF ERROR, 46. SERVICE OF. 26. Defendant garnishee a foreign insurance company, had a designated agent in Philadelphia to receive process for the company, under the Act of April 22, 1874, and an agent at York, The attachment in Pa., to effect insurance. this case was served upon the local agent, but subsequent attachments were served on the designated agent at Philadelphia. After service on the agent the company entered a general appearance to the attachments. In an answer filed it admitted an indebtedness on the insurance policy, set forth these various attachments and asked the Court to direct to whom the money should be paid; HELD, that the money will be awarded to the plaintiff in the first attachment. -Sonneman v. Gable, 107. 27. The service of the writ upon the local agent when a desiguated agent under the statute was in existence was irregular and invalid.-Ib. 28. Such defective service is waived by an appearance. 16. 211 31. An admission by counsel for the defendant which was contrary to the facts of the case, and was a slip of the tongue, will not be treated with serious consideration.-Nesbitt v. Turner 18. ATTORNEY, POWER OF, 33. AUDITOR, 71, 72. BAIL, 48. BANK STOCK. TRANSFER of. 32. The owner of stock of a corporation, having placed all the indicia of ownership in another person, will not be permitted to deny without notice of the owner's rights.-Souder's the title of the vendee for value of that person Appeal, 49. 33. A certificate of stock together with an assignment thereof in blank and an irrevocable hands of a third party without notice and for power of attorney to transfer the same is in the value, evidence of ownership that cannot be successfully attacked.—Ib. 34. The fact that the assignment and power of attorney were signed by a married woman does not put said third party on inquiry where her husband's name appears as a witness to her signature.-Ib. 35. The signature of a husband as a witness to an assignment of stock by his wife, is sufficient evidence of his consent to said assignment and parol testimony is superfluous to establish or contradict it.-Ib. 36. The fact that the ownership established by the indicia of title possessed by the holders dated nearly two years previous to the loan can not be said to be either a ground of suspicion or a cause for inquiry, but rather confirms the title of the holders because indicative of unquestioned ownership and an acquiescence in the same during that time.-16. 37. The plaintiff, a married woman, holding in her own name a certificate of 228 shares of bank stock, lent it to D. for sixty days, he giving as a memorandum therefor a note of S. & D. Accompanying said stock loaned was a separate assignment and power of attorney signed by her and partly filled up and witnessed by her husband, who also filled up the note, although he had objected to the transaction. The stock was not returned to the plaintiff, and was pledged two years afterwards by S. & D. to the defendant as collateral security for a loan. The plaintiff received dividends on the stock until S. & D. 29. When a garnishee appears, and in re-made an assignment for the benefit of creditors sponse to Interrogatories acknowledges that he shortly before which she, for the first time beis indebted to the defendant, neither the garni- coming aware of the said pledging of her stock, shee or a judgment defendant can set up defec- notified the bank not to transfer the stock on the books to the defendant and brought suit to tive service of the writ.-Ib. recover it. HELD, that the assent of the husband was sufficiently manifested by his name appearing on the papers, that the papers showed all the indicia of ownership in S. & D., and the defendant bank was not put upon inquiry and was a bona fide holder for value, and the bill should therefore be dismissed.—Ib. 30. If the garnishee and defendant in the judgment cannot set up a defective service other subsequent attaching creditors must be concluded, after judgment.—Ib. OF SHARE, 74-7. BARBAROUS TREATMENT, 86. BOARD, 262. BOND, 251. ALTERATION OF. 38. Where it is apparent, upon the face of a bond, that an alteration in the date has been made, and no note of such alteration appears before exccution, the question as to the time when the change was made, must be found by the jury from the evidence in the case.-Nesbitt v. Turner, 18 39. Where the defendant is sued as surety, alterations in the bond made without his knowledge and assent, relieve him of liability.—Ib.. OF MARRIED WOMEN, 178. BOROUGHS. 40. Where the width of the roadway and of the adjacent sidewalks of a street have been regularly established, an ordinance changing the same must be published as prescribed in clause IV., section 3 of the act of April 3, 1851, before the same can take effect.-Reich v. Borough of Ashley, 76. CERTIORARI. FROM JUSTICE, 145, 148-55. ORDINANCES of. 41. Plaintiff was elected City Assessor in February 1890, under the provisions of the Act of 24 May, 1887, and ordinance of March 30, 1888, which ordinance fixed his pay at three dollars per day. On October 14, 1890, the City Councils passed an ordinance fixing the compensation of Assessors at $2.50 per day, not to exceed $225 in any year of the triennial assessment nor $150 in any other year. HELD, (affirming the Court below) that plaintiff was entitled to recover according to the compensation fixed by the ordinance in force at time of his election.-City of York's Appeal, 33. 42. The provision in the 13th clause of Section 3, Article V. of the Act of 23 May, 1889 refers to officers elected, as well as appointed under ordinances, and presumably is of general application.-Ib. CITY ASSESSORS, 41. CONSTABLE, 154. CONVERSION, 74–7, 253, 274. 43. The Act of May 19, 1887, P. L. 138 makes the county liable for costs upon acquittals only where the verdict of acquittal has been followed by a sentence of the court.-Commonwealth v. Bishoff, 45. 44. Where the jury found the defendant not guilty of a misdemeanor, and divided the costs between the prosecutor and defendant, and so much of the verdict as relates to costs was set aside by the court, the county is not liable for the costs.-16. COUNTY, 43-4. COURT. COMMON PLEAS, 87-90. QUARTER SESSIONS, 48-9, 156–62. 45. Doubted, whether the court of quarter sessions has power to determine the effect of a writ of certiorari taken from the judgment of that court to the Supreme Court.-Summa's License, 43. SUPREME COURT, 158. 46. An assignment of error to the admission of evidence which fails to set forth the evidence admitted under the exception, is improper.Neely v. Bair's Executor, 101. CRIMINAL LAW. སྒྱུན ASSAULT AND BATTERY. 47. The jury were properly instructed that if they should find that Mrs. Linn was struck, by defendant, while he was striking with the pole, in a violent and reckless manner, and that the defendant was on the premises of the prosecutor unlawfully, they might find the defendant guilty.-Com. v. Wright, 62. BAIL. 48. Where in a criminal case a defendant has given bail before a magistrate for his appearance at the next term of the Court of Quarter Sessions of the county, is only bound thereby to appear at that term. He can not therefore be called at a subsequent term and his bail be then forfeited.-Com. v. Somers, `114. 49. If for any reason the case is not disposed of at the first term so that the case is to be continued, the defendant should be called and required to give new bail; or the bail already in be forfeited to be respited upon the defendant's appearance at the next term.-16.. CRUELTY TO ANIMALS, 62. EVIDENCE. 50. Defendant, at the time of negotiating the alleged forged note, represented that J. B. Miller the drawer of the note, lived at or near Cross Roads, and that the note would be paid at maturity. HELD, that it was proper for the Commonwealth to prove that no such person lived at or near that place.-Com. v. Norris, 25. 51. Defendant offered to prove that subsequent to the discounting of the note a letter was addressed to one J. B. Miller at Red Lion, and received at said postoffice, distant three miles from Cross Roads. It was not stated in the offer that the alleged letter was ever taken from the office by J. B. Miller or that he was ever seen in the neighborhood by a single witness. HELD, that the offer must be rejected.-16. 52. The defendant having testified in his own behalf it was orderly and proper to cross examine him upon all questions affecting his interest and credibility.-Com. v. Wright, 62. 53. Having, in substance, answered that he believed in a God, who would punish him for false swearing, it was competent to further ask the witness if he had not, previous to the trial. made statements to persons, naming them, in regard to said asserted religious belief, incon sistent with his evidence on the witness stand; and when he denied having done so, it was proper to call the persons to whom it was claim ed he so expressed himself, to establish the fact. -Ib. 54. This was not to affect the competency of the witness, that having been recognized but for the purpose of affecting his credibility, and discrediting him before the jury.—Ib. INDICTMENT. 55. On the trial the District Attorney asked leave to amend the indictments, the defendant alleged surprise, and the case was continued. A new information was made and new indictment found. A motion to quash this indictment because the first was still undisposed of, was overruled. HELD, not to be ground for a new trial.-Com. v. Norris, 25. BREACH OF CONTRACT. 66. Plaintiff entered into an agreement with 67. The plaintiff is only entitled to recover damages for breach of contract, not the full consideration for its performance, the contract never having been performed.-Ib. NEGLIGENCE. 68. A person whose property has been destroyed by fire caused by the negligent act of 56. A man can be held on two or more in- another, may recover damages from the wronginsurance company the full amount of his loss. dictments at the same time, for the same of-doer, notwithstanding he has received from an fence, and a pendency of one will not bar pro---Lindsay v. Bridgewater Gas Co., 157. ceedings on the other.-Ib. 57. If the defendant regarded the second arrest illegal, during the pendency of the first prosecution, he should have sought his release in a habeas corpus or a motion to quash the information.-16. 58. The accused had a right to have the bill first found disposed of before pleading to the second bill or going to trial, but contended himself with a motion to quash the second bill. The should not now complait because that was not done which he did not ask.—7b. JURY. 59. An array of the grand jury will be set aside and an indictment quashed where it appears that the jury wheel was not scaled by the sheriff and the jury commissioners each with their separate seals as required by the Act of April 10, 1867.—Com. v. Delamater, 9. 60. If the wheel is sealed by the sheriff, but in such a way that it may be opened without breaking the seal, the array will be set aside.— Ib. RAPE. 61. The object of the legislature being to protect the innocence of youth it is evidence of real character, as distinguished from supposed qualities or reputation, which should be admitted to determine whether a woman child was or was not of good repute.-Com. v. Davis, 165. SENTENCE. 62. Upon a summary conviction for cruelty to animals, the defendant cannot be sentenced in his absence.-Davis v. Com., 61. 63. A sentence to pay a fine must state to whom it is payable.-Ib. DECEDENTS' ESTATES: CLAIM AGAINST, 165. 69. Where the evidence shows that there was an express contract for certain services at a certain rate per year, without any limitation as to rendered three years immediately preceding the the number of years, the services having been death of the decedent, the mere fact that the claimant demanded more and that more was offered in an attempted settlement between the administrator and the, claimant, does not estab lish the fact that the contract did not exist during the year preceding the death of the decedent.-Grove's Appeal, 21. 70. The contract between claimant and decedent being clearly established, no additional allowance can be made on the ground that the rendered.-b. compensation was iusufficient for the services 71. Claimants brought suit before a Justice of the Peace against decedent's executors and obtained judgment. Defendants appeared before the Justice, after judgment, and declared that they had not sufficient assets to satisfy the same. the Prothonotary's office, who refused to enter Transcripts of these judgments were taken to HELD, that all of this did not prejudice the same because his fees were not paid in adthe rights of the plaintiffs in these judgments to participate in the distribution by the Auditor.-Kennedy's Estate, 38. vance. 72. A claim was made by a widow against her deceased husband's estate for money due her before marriage, and for part of which she |