74. Testator by his will directed that his real estate should be sold, and the proceeds to be divided among his children. L., one of the legatees, after the making of the will, became indebted to the testator's estate in an amount largely in excess of his share under the will. HELD, that an attaching creditor of L.'s took nothing.-Schue's Estate, 178. 75. It requires no citation of authorities to establish the proposition that the testator's positive direction to sell his real estate, worked an equitable conversion of it into personalty.-16. 76. When a debt is due to a testator, by a legatee, named in the will, upon principle and authority, it is clear that the legatee must discharge the debt, before he can claim the legacy; or in other words, the legacy must first be applied to pay the debt, and the balance belongs to him.-lb. 77. Of course an attaching creditor can rise to no higher position than that occupied by the legatee or distributee. Where the legatee or heir is entitled to no share of the estate there is nothing to attach.-1b. 78. Decedent being sick and having money in hand which he wished to be in a safe place proposed a deposit in his wife's name which was done. He at once demanded a check from her, so that in case of death he would have no trouble to get it. On a distribution of his estate the widow was surcharged with the amount so deposited. Young's Estate, 205. 83. An assault with intent to commit rape is not an infamous crime.-Ib. the separation, without condonation, is a sufficient ground for divorce.-Gee v. Gee, 30. 86. Evidence that a wife slapped her husband in the face and a few days afterwards, while he was down, kicked him on the head and face three times, but inflicting no serious injury; that she wrote him abusive letters, some of which were anonymous; that she did not occupy the same room with him; that she entered up a judgment note against nim for the purpose of ruining his business; that she made extravagant purchases on his credit knowing him to be in embarrassed circumstances, and that she alienated the affection of his children from him is not sufficient to establish the charge of cruel and barbarous treatment within the meaning of the divorce acts.-Sciple v. Sciple, 121. ELECTIONS. COMPUTING RETURNS. 87. The powers and duties of the Court in the computation of election returns are derived be enlarged through the general powers vested wholly from statutory enactments, and cannot in courts by the common law-Carbondale Election, 70. the purpose of computing election returns un88. The Court of Common Pleas sitting for der the Act of 30 January, 1874, has no power to open the ballot boxes and recount the ballots for the purpose of correcting an alleged mistake of the election officers.-lb. 89. The fraud or mistake to which inquiry by the Court is directed in the computation of the returns, must be such as can be discovered and corrected from an examination of the election officers and the papers in their possession, which does not include the ballots.-Ib. 90. The powers of the Court in computing election returns reviewed.-Ib. POLLING PLACES. 91. No Act of Assembly authorizes the Court to arbitrarily change the voting place of any precinct even though the owner of the premises should refuse to permit their further use for that purpose, and present his petition to the court announcing such refusal.-In re City Polls, 77 92. The action of the Board of School Control in prohibiting the holding of elections in the public school houses. (if they have the power to take such action) would be most injudicious and detrimental to the public interests, especially at a period so near to the election as to afford no sufficient opportunity to make judicious selection of new places.-lb. 93. The holding of public elections is a most important public use, involving as it does the of the highest and most important public duty exercise of the highest right and performance of the citizen.—Ib. 94. Certainly, School Directors should not permit any trivial or unimportant matter to interfere with schools, but even the interests of education-not in this matter very seriously affected-may be allowed to suffer a slight temporary interruption, when necessary to the most convenient exercise of the right of suffrage. 84. It is not the nature of the punishment but of the offense which determines its infam--b. ous character.-Ib. 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.—Ib. ENDORSER, 13, 186. ESTOPPEL, 254. EQUITY. INJUNCTION, 225-9, 259. by the court in (1) allowing defendants, who 96. On the hearing of a motion to dissolve a special injunction ex parte affidavits filed after answer filed, and in contradiction of it, are admissible.-Baltimore and Harrisburg Railway Co. v. Hanover and McSherrystown S. R.ing witness. Co., I. 97. On the admitted facts in this case the jurisdiction is plain, and the plaintiff is clearly entitled to a decree affording at least a measure of relief and protection, of the full benefit of which it will be deprived, unless the status quo In such case is preserved until final hearing. the proper practice has always been to continue the injunction in force.-Ib. 105. In such a suit the heirs and legatees of the testator are competent witnesses to testify concerning the genuineness of his signature to the bond upon which suit was brought.-16. 106. The testimony that the signature of Eli Kindig on the bond was not, in their opinion, 98. The office of a preliminary injunction is his genuine signature, was an expression of a paper presently to prevent injury rather than to remedy an present opinion based on It will not be awarded shown to the witnesses and compared with the injury already done. where the equity of the complainant is ques- mental exemplar, formed from previous opportioned on every ground upon which he puts it,tunities of observation. Thus it was not in the -Norristown Junction Railroad Company v. nature of matters occurring in the life time of their father, but of a fact existing after his Citizens Passenger Railway, 29. death.-Ib. 99. Plaintiff in his bill alleged that the wall into which defendants were cutting, was his (plaintiff's) exclusive property, standing entirely on his own ground and that any previous use of said wall by defendants was wrongful. The affidavits filed showing a use of said wall by defendants for a long period of time, the preliminary injunction against the defendants, restraining them from using said wall, must be dissolved. Hay v. Immell et al., 110. 100. Where the conflicting rights between BURDEN OF PROOF, 181, 206. 281. 101. A wife executed a testamentary paper in which she declared that certain deposits in banks in her name belonged to her husband; after her death the paper was found with her signature torn off. HELD, the paper being in her handwriting, that it was competent evidence to prove her declarations.-Gracie's Es tate. 36. 102. In a controversy over the title to real estate wherein brothers claiming by descent from a deceased father are plaintiffs, and their sister claiming by deed from the father, is defendant,-HELD, that the brothers were competent witnesses in their own behalf.-Serfass v. Serfass, 117. 103. To establish a resulting trust by parol the evidence must be clear, explicit and unequivocal.—[b. 104. Plaintiff, as administrator of E, brought suit against defendants, on a bond signed by K. as administrator of E., and defendants' testator as surety, both of ligors being dead at the bring ing of the suit. Defendants denied the genuineness of their testator's signature to the bond, and the issue was solely to determine this fact. The verdict having been for the defendants, a motion was made for a new trial, alleging error 107. It cannot be shown and it is not claimed now that the death of E. prevented the Kindig executors from testifying. He was not a party to the thing or contract in action. The bond was given after his death, in the course of the administration of his estate.-16. 108. If the test paper had been questioned by any competent witness, or the signature of the subscribing witness impeached, the paper could not have been admitted. The paper was proven in the usual way by the full measure of proof required when a paper is offered in evidence, attested by a subscribing witness who is deceased, or out of the jurisdiction of the court.-lb. 109. The two test papers were only camulative in their character, and this itself reduces the objection to their admission to a minimum. —1b. 110. In an issue of this character, to ascertain the genuineness of a signature, the plaintiff's case cannot be made out by merely producing the paper or document in issue when it is over thirty years old, and having it admitted in evidence as an ancient document" under the well established rule relating to the proof of such papers -1b. 111. In a case of this nature, an issue formed by the court on petition of a party in interest. to ascertain the simple question contained in the issue, we do not believe the principle applies; and especially where, in a case like this, the paper bears evidence of suspicion on its face and the subscribing witness is in court at the time.--lb. 112. It is no ground for a new trial, that a point, calling attention to the fact that the subscribing witness to the bond upon which suit was brought denied his signature, was affirmed by the court.-[b.` 113. It is no ground for a new trial that some of the test papers bear date long after the date of the bond upon which suit was brought; nor that many of the witnesses testifying to their opinion of the genuineness of the signature in DEPOSITIONS. 114. Depositions taken before'a Notary Public, in pursuance of a rule and notice, will be received in evidence, though unaccompanied by the formal certificate, where the caption shows that they were taken by the person at the time and place named in the rule, where each page is stamped with the seal, where the testimony of each witness is followed by the certificate of oath or affirmation' and the signature and seal of the Notary Public, and where witnesses were cross-examined by counsel who afterward nled exceptions to the depositions.—Croxall's Estate, 35. as a clerk in said business, it meets the requirements of the well understood and recognized decisions.—Ib. 120. A notice setting forth that the claim was for labor performed in the steam laundry of defendant, but not directly or sufficiently averring that the laundry, its appliances and machinery, are embraced in the levy, is defective, and the claim cannot be allowed.-16. 121. The notice must be, in itself, sufficient and cannot be helped out by the levy endorsed on the writ, or by evidence. It is very true the acts neither prescribe the form or substance of the claimant's notice to the sheriff; and while we can see no good reason for the particularity required in this fourth requirement, especially in cases of levy of the personal effects of the debtor, the rule seems to be unbending and inexorable, and we are compelled to regard it in our decisions so long as it remains unchanged by legislative enactment or judicial decision by our court of last resort.-16. EXECUTOR. CONTRACT WITH. 122. An executor sold certain property of his decedent, and agreed that the purchaser should pay for it by giving credit upon an account which he claimed against decedent's estate. Before the auditor appointed to,, distribute the estate, the price of the property was fully accounted for and distributed among the creditors of decedent, and the purchaser's personal account was excluded from participation in that distribution. HELD, that the contract was valid and that the executor could not subsequently recover the price of the property from the purchaser.-Neely v. Bair's Executor, 101. EXEMPTION. t ASSIGNMENT FOR BENEFIT OF CREDITORS. 123. A. and wife made an assignment for benefit of creditors, reserving in the deed the usual $300 exemption. Before the wife would sign the deed she was promised by the husband that she should receive the $300. There was no personal property and the exemption was taken out of the real estate; the fund remained in the fund was claimed by both husband and wife. hands of the assignee. Before the auditor the HELD, that the auditor had jurisdiction, to adjudicate the proper distribution of this fund. HELD, FURTHER, that the wife was the equitable owner of the fund, and the same was awarded to her.-Conard's Assigned Estate, 23. 117. The notice to the sheriff of a claim 118. While the legislation giving such claims 124. 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 Excoutor by the widow's Administrator for the $300, before the Auditor. the claim was disallowed. Exceptions having been filed to the Auditor's report because of the disallowance of this claim. HELD, that the exceptions must be dismissed. Beck's Estate, 118. 125. The decisions are based upon the con clusion that the right of the widow to the real or personal estate appraised to her is vested upon its selection and appraisement and the setting apart of the same to her in pursuance of the election made by her.-16. 126. Where there was no demand, election, or appraisement in the life time of the widow, for the reason that she died on the night of the day 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.—Ib. 127. 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. --Ib. FEES, 71. FINE, 63, 132-5. FIRE, 68. FORGERY, 13, 50. FRAUD, 14, 17-22, 89, 138, 150, 213. GARNISHEE, 26-30. GIFT, 181. GRAND JURY, 59. HUSBAND AND WIFE. HUSBAND'S CLAIM, 167. ILLITERATE, 136-9. JUDGMENT AGAINST. 128. On a scire facias to revive a judgment defendant filed his affidavit of defence, setting forth that the judgment sought to be revived was obtained before a Justice of the Peace on a promissory note signed by the defendant while a minor. HELD, on a motion for judgment for want of a sufficient affidavit of defence, to be a sufficient defence.-Smith v. Ruth and Welsh 189. 129. The Justice had no jurisdiction of the person of the defendant. Of this he may take advantage now, and it is a legal defence to the scire facias.--Ib. INSOLVENCY. ACTION OF TROVER. 130. By the words 'actual force' in the sev enteenth section of the insolvent act is meant such force as to put one standing in the defence of possession in fear of personal injury.-Dimmick's Case, 97. 131. Said seventeenth section presents no obstacle to a discharge under the act in any case where the damages found do not exceed one hundred dollars.-Ib. FINE. 132. Petitioner was convicted of assault and battery, and sentenced to pay a fine of ten dollars and costs. He immediately paid the fine, and presented his petition for discharge under the insolvent law, giving bond for his appearance, and was temporarily discharged. On the final hearing, HELD, that his petition must be refused.-Smith's Case, 112. 133. Had this applicant remained in jail thirty days from the date of his sentence, he would, under the insolvent laws and in accordance with the well established usage under the same, have been entitled to his discharge by the Sheriff of the county of York, without further proceeding, at the end of the thirty days. -Ib. 134. The case of Kishbaugh's petition, 125 Pa. 468, will be limited to the cases clearly covered by it, to wit: to persous sentenced to the payment of costs only.-Ib. 135. The distinction is clearly made in that case, between persons sentenced to payment of a fine and costs and those sentenced simply to pay or secure the payment of costs. Where a person has been sentenced to the payment of a fine he is not entitled to make application for his discharge until he shall have been in actual confinement, pursuant to such sentence, for a period of not less than three months.--Ib. INSURANCE, 26-30, 68. JUDGMENT. INFANT, 128. BY DEFAULT, 142. MARRIED WOMAN, 182-8. OPENING OF. 136. Defendant petitioned the Court to open the judgment granted against him on the ground that he is an illiterate person, 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 representations that it was "only a common note, no judgment exemption note and that he (plaintiff) would not bother the defendant about it, not if it went ten years. HELD, that the judgment will be opened and defendant let into a defence.-Olewiler v. Rupp, 134. 137. It is not sufficient, to obtain equitable relief that a party executing a paper such as this should be illiterate and unable to read and write and did not know the character or contents of the same. If he does not read it or have it read it is his own fault and he cannot avoid his obligation on it because it is other than he thought it to be.-Ib. 138. But where such illiterate person executes a writing which has been falsely read to trick or fraud practiced upon him, by the party him, or which he has been induced to sign by a obtaining the writing, for himself, the party so defrauded is not bound.—Ib. 139. It is established that the false and fraudulent representations were made by the plaintiff to the defendant, at the same time and in the manner testified to by said witnesses and that the 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 false representations of the plaintiff, the defendant was induced to sign the note and warrant. It is, therefore, not his note, "for fraud vitiates everything," and notwithstanding the fact that there existed an indebtedness to the plaintiff on the part of the defendant, at the time he made his mark to the note in question, to the amount of the same, it is just and equitable that the judgment be opened and the defendant let into a defence.-Ib. REVIVAL OF, 128. 140. Upon a scire facias to revive a judgment an affidavit of defence is not sufficient if it fails to deny the existence of the original judgment POWER TO CONFESS, 172-5. SETTING ASIDE. 141. A motion to set aside or strike off a judgment must be upon the ground of invalidity appearing on the face of the record.-Spahr v. Hess, 73. TRANSCRIPT OF, 71. JURY. JURY WHEEL, 59. QUESTION FOR, 38, 210, 215. JURY COMMISSIONERS, 59. JUSTICE OF THE PEACE. APPEAL FROM. 142. On an appeal taken from the judgment of a justice of the peace plaintiff filed his statement and defendant failing to file an affidavit of defence, judgment was taken by default. On a motion to strike off, HELD, that the judgment will be stricken off.-Marshall v. Neiman, 95. 143. There is no provision in the act of 1887 for the taking judgment by default on appeals from justices.-Ib. 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 1872.-Ib. CONDUCT OF. ent judgment, except under the circumstances and in the matter provided by the statute; hence he cannot issue a new summons and enter an additional judgment against the defendant for the same cause of action.-Beynon v. Peterson, 157. 149. In such a case it is competent, on certiorari to the second judgment, to show, by depositions, that the cause of action in both cases was the same.-16 150. In a suit before a Justice of the Peace, defendant's agent called upon the Justice and explained the nature of plaintiff's claim whereupon the Justice said there was "nothing in it” and that upon payment of $2.00 costs by the defendant he would enter a non-suit; this was paid, but without further notice to defendant or tiff and a transcript filed in the Prothonotary's her agent, judgment was rendered for the plain office. HELD to have been such fraud and misconduct on the part of the Justice as will lead the Court to set aside the proceedings.— Musser's Administrator v. Simpson 179. 151. After the payment of the costs by the defendant, according to the Justice's proposition, he had no jurisdiction to proceed further in the case.-16. 152. The Court 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 merely sent his affidavit, and the Alderman had refused to allow a continuance to enable the defendant to employ counsel, the defendant not 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. JURISDICTION, 128. 153. The Act of 8 May, 1876, does not give aldermen and justices of the peace jurisdiction in "actions on the case."-Thatcher v. Beam, 140. RECORD, 182, 200. SUMMONS. 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 v. Musser, No. 2, 74. 155. Under the Act of 20 March, 1810, the service of a summons may be made by leaving a copy at the defendant's dwelling house in the presence of a neighbor, and such a service will be declared regular upon certiorari, if the endorsement on the back of the summons is properly made, unless evidence be offered showing an irregularity in the service. - Thatcher v. 145. The petition for a special allocatur charged bad faith and misconduct of the Alderman, the evidence sustains the charge, and shows, if not fraud, at least such misconduct on the part of the Alderman as should invalidate the judgment.—Simpson v. Musser, No. 2, 74. 146. After the agreement to discontinue and the receipt of the money, the Alderman was without jurisdiction to proceed further. The want of jurisdiction may be taken advantage of Beam, 140. at any stage of the case.-Ib. 147. It is true that the proper course should have been taken at the proper time but in cases of hardship such as this appears to be, allowance must be made, in favor of justice for error in judgment of parties, and their counsel.-Ib. 148. After a Justice of the Peace has entered judgment in an action he has no authority to open it, or to rehear the case and enter a differ LACHES, 36. LICENSE. TRANSFER OF. 156. Where a retail liquor license was granted for a full year and the licensee, during his term of lease, absconded, the license may be trans |