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74. Testator by his will directed that his real the separation, without condonation, is a suffi -
estate should be sold, and the proceeds to be cient ground for divorce.-Gee v. Gee, 30.
divided among his children. L., one of the 86. Evidence that a wife slapped her husband
legatees, after the making of the will, became in the face and a few days afterwards, while he
indebted to the testator's estate in an auiount was downı; kicked him on the head and face
largely in excess of his share under the will. three times, but iuflicting no serious injury ;
HELD, that an attaching creditor of L.'s took that she wrote him abusive letters, some of
nothing.-Schue's Estate, 178.

which were anonymous; that she did not occu-
75. It requires no citation of authorities to py the same rooni with him; that she entered
establish the proposition that the testator's posi- up a judgment note against nim for the purpose
tive direction to sell his real estate, worked an of ruining his business; that she made extrava-
equitable conversion of it into personalty.-16. gant purchases on his credit kuowing him to be

76. When a debt is due to a testator, by a in embarrassed circumstances, and that shie
legatee, named in the will, upon principle and alienated the affection of his children from him
authority, it is clear that the legatee must dis. is not sufficient to establish the charge of cruel
charge the debt, before he cau claim the legacy; and barbarous treatment within the meaning of
or in other words, the legacy must first be ap-, the divorce acts. - Sciple v. Sciple, 121.
plied to pay the debt, and the balance belongs
to him.-16.

77. Of course an attaching creditor can rise
to no bigher position than that occupied by the
legatee or distributee.

Where the legatee or
heir is entitled to no share of the estate there is

87. The powers and duties of the Court in
nothing to attach.-16.

the computation of election returns are derived
78. Decedent being sick and having money be enlarged through ihe general powers vested

wholly from statutory enactments, and cannot
in hand which he wished to be in a safe place in courts by the common law.-Carbondale
proposed a deposit in his wife's name which

Election, 70.
was done. He at once demanded a check from
her, so that in case of death lie would have no

88. The Court of Common Pleas sitting for
trouble to get it. On a distribution of his estate der the Act of 30 January, 1874, has no power

the purpose

of computing election returns un-
the widow was surcharged with the amount so
deposited.— Young's Estate, 205.

to open the ballot boxes and recount the bal-
lots for the purpose of correcting an alleged mis-
take of the election officers.-16.

89. The fraud or mistake to which inquiry
79. In a case fairly within the jurisdiction of by the Court is directed in the computation of
the Orphans' Court an quest of partition is a the returns, must be such as can be discovered
matter of right. In such case the court is bound and corrected from an examination of the elec-
to grant partition and has no discretion to refuse tion officers and the papers in their possession,
it. - Dech's Estate, 43.

which does not include the ballots.- 1b.

90. The powers of the Court in computing

election returns reviewed.-16.
80. An order to sell real estate to reimburse POLLING PLACES.
an adniinistrator for the expenses of administra-
tion will not be refused merely because his con 91. No Act of Assembly authorizes the Court
duct in other matters connected with the estate to arbitrarily change the voting place of any
but not in volved in his administration, was not precinct even though the owner of the premises
what it should have been.-Rogers' Estate, II. should refuse to permit their further use for that

81. Where the administrator is hostile to the purpose, and present his petition to the court
heirs, an order to sell real estate to reimburse anuouncing such refusal.-In re City Polls, 77.
him for the expenses of administration will not

92. The action of the Board of School Con-
be directed to him.--16.

trol in prohibiting the holding of elections in

the public school houses, (if they have the pow-

er to take such action) would be most injudici-

ous and detrimental to the public interests, es-

pecially at a period so near to the election as to

afford io sufficient opportunity to make judici-

ous selection of new places.- 1b.

93. The holding of public elections is a most

important public use, involving as it does the
82. A divorce will not be granted under the of the higliest and most important public duty

exercise of the highest right and performance
Act of June 1, 1891, (P. L. 142) upon libellant's

of the citizen.--16.
simply proving that the respondent has been
convicted of an assault withi intent to commit

94. Certainly, School Directors should not
years and six months in the penitentiary:- education not in this matter very seriously
rape and sentenced to an imprisonment for two permit any trivial or unimportant matter to

interfere withi schools, but even the interests of
Wheeler v. Wheeler, 6.
83. An assault with intent to commit rape

affected -may be allowed to suffer a slight
is not an infamous crime.- 1b.

temporary interruption, when necessary to the
84. It is not the nature of the punishment most convenient exercise of the right ofsuffrage.
but of the offense which determines its infam- -- 1b.
ous character.-16.

95. The Court will not fix as the polling
85. When husband and wife have separated place a house where intoxicating liquor is sold
by agreement adultery by either occurring after except in cases of imperious necessity.- 1b.



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ENDORSER, 13, 186.

by the court in (1) allowing defendants, who

were legatees of testator, to testify concerning

the genuineness of his signature to the bond;

(2) in admitiiig certain test papers in evidence;

13) in refusing to say that the burden of proof
INJUNCTION, 225-9, 259.

was upon the defendant; (4) in affirming de-

fendant's point calling attention to the fact that
96. On the hearing of a motion to dissolve a the subscribing witness to the bond had no
special injunction ex parte affidavits filed after knowledge or recollection of witnessing testa-
answer filed, and in contradiction of it, are ad- tor's signature and to the best of his knowledge
missible.- Baltimore and Harrisburg Rail- and belief did not sign the paper as a subscrib-
way Co. v. Hanover and McSherrystoum S. R. iing witness. HEID, that the motion for a new
Co., I.

trial must be overruled.-York Trust, Real Es-
97. On the admitted facts in this case the tate and Deposit Co. v. k'indig's Erecutor's,
jurisdiction is plain, and the plaintiff is clearly 149.
entitled to a decree ailording at least a measure 105. In sucli a suit the heirs and legatees of
of relief and protection, of the full benefit of the testator are competent witnesses to testify
which it will be deprived, unless the status quo concerning the genuineness of his signature to
is preserved until nnal bearing. In such case the bond upon whic'i suit was brouglit.-16.
the proper practice has always been to continue

106. The testimony that the signature of Eli
the injunction in force.-16.

Kindig on the bond was not, in their opinion.
98. The otfice of a preliminary injunction is his genuine signature was an expression of
to prevent injury rather than to remedy an present opinion based on a paper presently
injury already done. It will not be awarded shown to inc witnesses and compared with the
where the equity of the complainant is ques- mental exemplar, formed from previous oppor-
tioned on every ground upon which he puts it. iunities of observation. Thus it was not in the
-Norristown Junction Railroad Company v. nature of matters occurring in the life time of
Citizens Passenger Railway, 29.

their father, but of a fact existing after his
99. Plaintiff in liis bill alleged that the wall death.-16.
into which defendants were cutting, was his

107. It cannot be showni and it is not claimed
(plaintiff's) exclusive property, standingen-
tirely on his own ground and that any previous now that the death of E. prevented the Kindig
use of said wall by defendants was wrongful, to the thing or contract in action.

executors from testifying. He was not a party

Tlic bond
The affidavits filed showing a use of said wall
by defendaits for a long period of time, the administration of his estate.-16.

was given after his deatlı, in the course of the
preliminary injunction against the defendants,
restraining them from using said wall, must be

108. If the test paper had becii questioned
dissolved.-Hay v. Immell et al., 110.

by any competent witness, or the signature of
100. Where the conflicting rights between the subscribing witness impeached, ihe paper
the parties 10 a litigation are involved in much could not have been admitted. The paper was
doubt, a preliminary injunction will be dis- proven in the usual way by the full measure of
solved, without prejudice.- 1b.

proof required when a piper is offered in cvi-

denice, attested by a subscribing witness who is

deceased, or out of the jurisdiction of the

BORDEN OF PROOF, 181, 206, 281.

109. The two test papers were only cumula-
COMPETENCY, 50-4. 190–3, 277.

tive in their character, and this itself riduces

the objection to their admission to a minimum.
101. A wife executed a testamentary paper -16.
in which she declared that certain deposits in 110. In an issue of this character, to ascer-
banks in her name belonged to her husband : tain the genuineness of a signature, the plain-
after her death the paper was found with her tiff's case cannot be made out by merely pro-
signature torn off. HELD, llic paper being " ducing the paper or document in issue wlien it
her hardwriting, that it was competent ce is over thirty vears old, and having it admitted
dence to prove lier declarations.---Gracie's Es- in evidence as an ancient document" ouder
late, 36.
102. In a controversy over the title to real such papers 1b.

the well establislıcd rule relating to the proof of
cstate wherein brothers claiming by descent
from a deceased father are plaintiffs, and their

111. In a case of this nature, an issue forma
sister claiming by deed from the father, is de cd by the court o! petition of a parts in inter-
fendant,-Hein, that the brothers were com- est. to ascertain the simple question contained

in tlic issue, we do not believe thic principle
petent witnesses in their own behalf.---Serfass
2'. Serfass, 117.

applies; and especially where, in a case like
103. To establish a resulting trust los parol its face and the subscribing witness is in court

this, the paper bears evidence of suspicion on
tlie evidence must be clear, explicit and wie-

at Ilie time.--1h.
quivocal. ----1h.

104. Plaintiff, as administrator of E, brought 112. It is 110 ground for a 11cw trial. tat a
suit against defendants, on a boud signed by K. point. calling attention to this fact that the sub-
as administrator of E., and defendants' tesiator scribing witness to the bond upon which suit
as surety, both of ligors being dead at the bring- was brouglit denied his signature, was affirmed
ing of the suit. Defendants denied the genuine by the court.-16..
ness of their testator's signature to the bond, 113. It is no ground for a new trial that some
and the issue was solely to determine this fact. of the test papers bear date long after the date
The verdict having been for the defendants, a of the boud upon whic! suit was brought; nor
motion was made for a new trial, alleging error that many of the witnesses testifving to their


oath or affirmatio lowed by the certificate of we can see 110 good reason for the particularity

opinion of the genuineness of the signature in as a clerk in said business, it 11eets the require-
issue only became acquainted with the testa- . ments of the well uudeistood and iecognized
tor's signature at a comparatively recent date, decisions.-16.
the court having instructed the jury as to the 120.; A notice setting forth that the claim
value of the testimony.-16.

was for labor performed in the steam laundry of

defendant, but not directly or sufficiently aver-

ring that the laundry, its appliances and ma-
114. Depositions taken before'a Notary Pub- chinery, are embraced in the levy, is defective,
lic, in pursuance of a rule and notice, will be re- and the claim cannot be allowed, -16.
ceived in evidence, though unaccompanied by 121. The notice must be, in itself, sufficient
the formal certificate, where the caption shows and cannot be helped out by the levy endorsed
that they were taken by the person at the time on the writ, or by evidence. It is very true the
and place named in the rule, where: each page is acts neither prescribe the form or substance of
stamped with the seal, whicre the testimony of the claimant's notice to the sheriif; and while
each witness

the signature and seal required in this fourth requirement, especially
of the Notary Plüblic, and where witnesses were in cases of levy of the personal erlects of the
cross-examined by counsel who afterward hled debtor, the rule seems to be unbending and in-
exceptions to the depositions.-Croxall's Es-, exorable, and we are compelled to regard it in
tate, 35.

our decisions so long as it remains unchanged

by legislative enactment or judicial decision by

our court of last resort.-16.
115. In tire Oxaniinätion of a witness as to a

conversation betweeù plaiytiff and defendant,
the proper way'is to ask the witness wllat oc-
curred in the conversation and not to direct his
attention specifically to any particular matter. 122. Áin executor sold certain property of his
-Neely v. Barr's Executor, 101.

dccedent, and agreed that the purchaser should
EXCEPTION, 46..!!!

pay for it by giving ciedit upon an account

which he claimed agzinst decedent's estate.

Before the auditor appointed 10,, distribute the

estate, the price of the property was fully ac-
116. Where the claimant is a resident of a counted for and distributed among the creditors
city distant from the place where the audit was? of decedent, and the purchaser's personal ac-
held, and its counsel'ileglected to offer any evi-! count was excluded from participation in that
dence in support of its claim, the report will be distribution. HEID, that the contract was valid
recommitted to the Auditor

, fop:the purpose of and that the executor could not subsequently
hearing further evidence the money of the estate recover the price of the property from the pur-
being still undistributed, Croxall's Estate 35. cháser.- Neely v. Bair's Erecutor, 101.
EXCEPTION; 46..; .;!! 1:

ATTACHMENT, 26, 260.

123. A. and wife maple, an assignment for
costs. 251.

benefit of creditors, reserving in the deed the

usual $300 exemption. Before the wife would

sign the deed she was promised by the husband
117. The notice to the sheriff of a claim that she should receive the $300. There was no
against the defendant for wages should be suf- personal property and the exemption was taken

out of the real estate; the fuud remained in the
ficiently full and clear to show the officer and hands of the assignee. Before the auditor the
others interested, that the labor was rerformed fund was claimed by both husband and wife.
within the time limited by the act in a business Heid, that the auditor had jurisdiction, to
defined therein, the sum dug and that the prop- adjudicate the proper distribution of this fund.
erty subject to the preferred lien is embraced in HELD, FURTHER, that the wife was the cquit-
the levy. These four ingredients are necessary able owner of thiefund, and the same was award-
to bring the claim within the protection of the ed to her.-Conard's assigned Estate, 23.
statute, and hence they must appear in some
form in the notice.-Wilson Laundry Machine widow's,
Co. v. Stacks, 137.

'118. While the legislation giving such claims 124. Testator died on the Iził of Janua
priority, may properly be called class legisla- 1892, leaving a widow ; one week laief his will
tion, it must not be forgotten that it is founded was probated and the same night his widow
on the strongest ground of public policy, for died, before any appraiser had been selectedand

the protection of the great multitude of wage without having made any demand for her to
? carners of this commo: wealth and their depend- widow's.exemption or designating what prop-

ent families—the great producers of wealth and erty is any, she intended to take. Upon a claim
prosperity ; and therefore, the decisions of the made upon testator's Excoutor by the widow's
courts should not be sufficiently sharp and re- Administrator for the $200, before the Auditor.
fined in points, to defeat, iw any respect the be- the claim was disallowed. Exceptions having
nign intentions of the law-making power.-10. been filed to the Auditor's report because of the

119. Where the notice states that the services disallowance of this claim. HELD, that the ex-
performed were manual labor or services in the ceptions must be dismissed. Beck's Estate, US.
steam laundry of the defendant, or for services 125. The decisions are based upon the con-

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clusion that the right of the widow to the real 132. Petitioner was convicted of assault and
or personal estate appraised to her is vested battery, and sentenced to pay a fine of ten dol-
upon its selection and appraisement and the lars and costs. He immediately paid the fine,
setting apart of the same to her in pursuance ot and presented liis petition for discharge under
the election made by her.-16.

the insolvent law, giving bond for his appear-
126. Where there was no demand, election, ance, and was temporarily discharged. On the
or appraiseinent in the life time of the widuw, final hearing, HELD), that his petition must be
for the reason that she died on tlie night of the refused.---Smith's Case, 112.
day upon which letters testamentary were 133. Had this applicant remained in jail
granted, there was, and could be no action by thirty days from the date of his sentence, he
lier to vest in her any title to any of the estate would, under the insolvent laws and in accord-
of her deceased husband, as exempt goods, ance with the well established usage under the
moneys or property.-16.

same, have been entitled to his discharge by
127. The acts under which the claim is made the Sheriff of the county of York, without fur-
require an election by the widow, to retain her thier proceeding, at the end of the thirty days.
exemption, and the property closen by her is -16.
required to be appraised to her and her children 134. The case of Kislibaugh's petition, 125
by the appraisers of the other personal estate. ' Pa. 468, will be limited to the cases clearly cov-
-- 16.

cred by it, to wit: to persous sentenced to the

payment of costs only.-16.
FEES, 71.

135. The distinction is clearly made in that
FINE, 63, 132-5.

case, between persons sentenced to payment of

a fine and costs and those sentenced simply to
FIRE, 68.

pay or secure the payment of costs. Where a

person has been sentenced to the payment of a
FORGERY, 13, 50.

fine he is not entitled to make applicatiori for

his discharge until he shall have been in actual
FRAUD, 14, 17-22, 89, 138, 150, 213.

confinement, pursuant to such sentence, for a

period of not less than three months.--16.

INSURANCE, 26-30, 68.
GIFT, 181.


INFANT, 128.


INDICTMENT, 55-8, 65.

136. Defendant petitioned the Court to open

the judgment granted against him on the

ground that he is an illiterate personi, unable to

read or write, which fact was well known to the

plaintiff, and that his signature to the note on

which judgment was entered was procured by
128. On a scire facias to revive a judgment representations that it was only a common
defendant filed his affidavit of defence, setting note, no judgment exemption note and that he
forth that the judgment sought to be revived (plaintiff) would not bother the defendant about
was obtained before a Justice of the Peace on a it, not if it went ten years." HELD), that the
promissory note signed by the defendant while judgment will be opened and defendant let into
à minor. "HELD, on a motion for judgment for a defence.-Olewiler v. Rupp, 134.
want of a sufficient affidavit of defence, to be a 137. It is not sufficient, to obtain equitable
sufficient defence.-Smith v. Ruth and W'elsh relief that a party executing a paper such as this

should be illiterate and unable to read and write
129. The Justice had no jurisdiction of the and did not know the character or contents of
person of the defendant. Of this he may take the same. If he does not read it or have it read
advantage now, and it is a legal defence to the it is his own fault and he cannot avoid his obli-
scire facias.--16.

gation on it because it is other than he thought

it to be.--16.

138. But where such illiterate personi cxe-

cutes a writing which has been falsely read to
130. By the words 'actual force' in the sev. trick or fraud practiced upon him, by the party

him, or which he has been induced to sign by a
enteenth section of the insolvent act is nicant
such force as to put one standing in the defence obtaining the writing, for himself, the party so

defrauded is not bound.-16.
of possession in fear of personal injury.--Dim.

139. It is established that the false and fraud-
mnick's Case, 97.
131. Said seventeenth section presents no

ulent representations were made by the plaintiff
obstacle to a discharge under the act in any

i to the defendant, at the same time and in the
case where the damages found do not exceed manner testified to by said witnesses and that the
one hundred dollars. - 16.

defendant, an illiterate man, unable to read and
write, was induced to abstain from demanding
that the note be read before he signed it or made




his mark to it, and that by reason of said talse ent judgment, except under the circumstances
representations of the plaintitf, the defendant and in the watter provided by the statute ;
was induced to sign the note and warrant. It hence he cannot issue a new summons and enter
is, therefore, not his note, “for fraud vitiates an additional judgment against the defendant
everything,'' and notwithstanding the fact that for the same cause of action.— Beynon v. Peter-
there existed an indebtedness to the plaiutint on son, 157.
the part of the defendant, at the tinic he made 149. In such a case it is competent, on cer-
his mark to the note in question, to the amount tiorari to the second judgment, to show, by de-
of the same, it is just and equitable that the positions, that the cause of action in both cases
judgment be opened and the defendant let into was the same.-16
a defence.--16.

150. In a suit before a Justice of the Peace,

defendant's agent called upon the Justice and

explained the nature of plaiutiff's claim where-
140. Upon a scire facias to revive a judgment and that upon payment of $2.00 costs by the

upon the Justice said there was "110thing in it"
an affidavit of defence is not sufficient if it fails
to deny the existence of the original judgment paid, but without further notice to defendant or

defendant he would enter a non-suit; this was
or fails to show a subsequent satisfaction in whole her agent, judgment was rendered for the plain-
or in part. -- Reifsnyder v. Missimer et ux., 8. titf and a transcript filed in the Prothonotary's

office. HELD to have been such fraud and

misconduct on the part of the Justice as will
SET.OFF, 248.

lead the Court to sei aside the proceedings.-

Musser's Administrator 1'. Simpson, 179.

151. After the payment of the costs by the

defendant, according to the Justice's proposi-
141. A motion to set aside or strike off a
judgment must be upon the ground of invalidi- in the case.-16.

tion, he had no jurisdiction to proceed further
ty appearing on the face of the record.-Spahr
v. Hess, 73.

152. The Count will not strike off a judgment

entered on a transcript from an Alderman's

docket, on the ground that the record showed

that the plaintiff had not personally appeared

and testified before the Alderman but had mere-

ly sent his affidavit, and the Aldermau had re-

i fused to allow a continuance to enable the de-
QUESTION FOR, 38, 210, 215.

fendant to employ counsel, the defendant 1106

having taken an appeal or certiorari in time,

because he misunderstood his counsel as to the

time within which it must be done.- Johns v.

Humphreville, 192.

142. On an appeal taken from the judgment JURISDICTION, 128.
of a justice of the peace plaintiff filed his state-
ment and defendant failing to file an affidavit of 153. The Act of 8 May, 1876, does not give
defence, judgment was taken by default. On a aldermen and justices of ihe peace jurisdiction
motion to strike off, HELD, that the judgment in “actions on the case.Thatcher v'. Beam,
will be stricken off.- Marshall v. Neiman, 95. 140.

143. There is no provision in the act of 1887
for the taking judgment by default on appeals RECORD, 182, 200.
from justices. —-16.

144. No equitable construction of the act of
1887 can reduce the period of thirty days, in
cases of appeals, provided by the local act of

154. On a certiorari the proceedings cannot

be set aside for non-service of the writ, where
the record shows a valid service. The return of
the constable under oath cannot be contradicted

in such case by parol testimony:-Simpson i'.
145. The petition for a special allocatur Musser, No. 2, 74.
charged bad faith and misconduct of the Alder 155. Under the Act of 20 March, 1810, the
man, the evidence sustains the charge, and service of a summons may be made by leaving
shows, if not fraud, at least such misconduct on a copy at the defendant's dwelling house in the
the part of the Alderman as should invalidate presence of a neighbor, and such a service will
the judgment.-Simpson v. Musser, No. 2, 74. be declared regular upon certiorari, if the en-

146. After the agreement to discontinue and dorsement on the back of the summons is
the receipt of the money, the Alderman was properly made, unless evidence be offered show-
without jurisdiction to proceed further. T!ie ing an irregularity in the service. - Thatcher a'.
want of jurisdictiori may be taken advantage of Beam, 140.
at any stage of the case. -16.

147. It is true that the proper course should LACHES, 36.
have been taken at the proper time but in cases
of hardship such as this appears to be, allow-

ance must be made, in favor of justice for crror
in judgment of parties, and their counsel.-16.

148. After a Justice of the Peace has entere 156. W a retail liquor license was granted
judgment in an action he has no authority to for a full year and the licensce, during his term
open it, or to rehear the case and enter a differ- of lease, absconded, the license may be trans-




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