there will be replacing of tires, and the plans in evidence show a stand for washing cars. Unpleasant conditions to persons in the neighborhood will be established, which will interfere with the peaceful enjoyment of complainants' houses and reduce the values of their properties.

This

the defendant's residence.
raises a presumption that defendant was a

copy at
resident within the jurisdiction of the court
at the time suit was instituted and the pro-

cess served.

Act of April 14, 1851, P. L. 612, considered.

Statutory demurrer.

W. Louis Schlesinger, for plaintiff.
L. E. Torry, for defendant.

It was stated that Ninth Street would be the end of the garage that would be in general use, but the plan in evidence Hirt, J., December 20, 1923.-Since shows two large doors on Hutchinson the order of November 28, 1922, overStreet and only one door on Ninth ruling the statutory demurrer to plainStreet, which is neither opened, graded tiff's statement, a motion for a rearguor paved. The proposed location of the ment was granted. Before reargument, garage is within an exclusively residen- plaintiff amended his statement of claim tial section of the city, built up with sub-by attaching a full and complete transtantial modern houses and defendants, script of the proceedings had in the Disin common with their neighbors, are sub-trict Court for Oklahoma County, in the ject to a building restriction which pro-State of Oklahoma, in which court judghibits an establishment for any offensivement was entered against the defendant in favor of the plaintiff. The judgment there entered is the foundation of the

busines.

The allegations of the bill of com- action here. To the amended statement plaint are sustained by the evidence as to the residential character of the neigh-defendant filed a statutory demurrer, alborhood, that the maintenance and oper-leging that the statement is insufficient ation of a public garage in this location in law, in that it does not aver that dewill be a nuisance and in conflict with fendant was a resident of the State of

the restriction in defendants' deed.

The rule for an injunction should be made absolute: Hohl et al. v. Modell, 264 Pa. 516.

Oklahoma at the time the suit was

brought, nor that the summons
served upon him within that state.

was

The transcript of the summons, filed And now, to wit, July 7, 1924, it is as part of the Oklahoma record, contains ordered and decreed that the rule a return of the sheriff to the effect that granted to show cause why a prelimin- on April 3, 1916, he executed the sumary injunction should not issue be made mons by delivering a true copy thereof, absolute, and that defendants be re-at the usual place of residence of F. O. strained from erecting and maintaining Reed, with B. M. Dilley, he being a a public service garage on the premises member of defendant's family over sixdescribed in the bill. Security to be en- teen years of age. tered in the sum of $1,000.

C. P. of

Quinn v. Reed

Erie Co.

The Act of April 14, 1851, P. L. 612, in section 10, provides: "If the record of a judgment of another state does not show that personal service of the notice Dr process by which suit was commenced, upon which said judgment was obtained, was made in such foreign Pleadings—Foreign judgments-Pre-state, it shall be sufficient to maintain a sumption of residence-Service of pro- plea to the jurisdiction of the court in

cess-Act of April 14, 1851.

which said judgment was rendered."

In the case of Reber v. Wright, 68 Pa. In an action upon the judgment of a court 471, followed in Shilling v. Seigle, 207 of a sister state, it is not necessary to aver Pa. 381, objection was made that the in fact reside within the jurisdiction of the record on its face showed that there was court in which the judgment was rendered, no personal service on defendants, but where the transcript of the sheriff's return |

in the statement of claim that defendant did

of the summons shows service by leaving a it was held that, as it appeared that there

the broader construction here contended

had been service by a copy of the writ Story on Conf., ch. 14, par. 539. Το left at the place of residence of the de- the same effect is Rogers v. Burns, 27 fendants, the service was sufficient to Pa. 525. But to give the Act of 1851 sustain the jurisdiction of the Ohio for would be in violation of the Consticourt, in the absence of any evidence tution of the United States and the Act that defendants were not at the time res-of Congress passed in pursuance thereidents within the jurisdiction of the of."

court. In other words, without more

Oklahoma arises from the return of the

that effect.

And now, to wit, December 20, 1923, the statutory demurrer filed April 18, 1923. is overruled, with leave to file his affidavit of defense within fifteen days.

Lackawanna Co.

Commonwealth v. Williams

than appeared from the face of the rec- It, therefore, appears that, since the ord, the presumption was that defend-record of the foreign judgment shows ants were residents of the State of Ohio that service was made by leaving a copy at the time the suit was instituted and of the summons at the residnce of the the process served. In support of that defendant, a plea to the jurisdiction canconclusion, Mr. Justice Sharswood, in not be maintained until it be shown that part quoting the ruling of the lower defendant in fact was not resident withcourt, said: "The whole object of the in the jurisdiction of the Oklahoma court at the time of service. The presump9th and 10th sections of that act of assembly (Act of April 15, 1851, P. L. tion that defendant's residence was in 614) was to provide for the case of an attempt to make a resident of this state sheriff, and, therefore, the statement of party to a suit in another state by the claim need not contain an averment to service of notice or process upon him in this state. The 9th section provides that 'it shall be competent and lawful for a defendant in any action of debt upon a judgment of a court of another state, for maintaining a plea in bar to said action, to prove the service of the notice Q. S. of or process by which the original action was made on him in that state.' The 10th section was intended merely to provide that if the record on its face, where there was personal service, did not show that it was made in such foreign state, it should be sufficient to maintain a plea to the jurisdiction. It surely did not mean to say that where a service was made by leaving a copy at the residence In general, the matters to be considered in of the defendant, or where there was a fixing the amount of bail in cases of this voluntary appearance, either in person fence; (2) the sum embezzled; (3) the pencharacter are: (1) The gravity of the ofor by attorney, the plea to the jurisdic-alty in case of conviction; (4) the age and tion should be thereby maintained. Percondition of health of the defendant; and haps there was no occasion for the act. It seems to have been passed ex majori cautela. Such personal service out of the jurisdiction of the court in which the judgment was rendered, clearly would. not give jurisdiction. All the authori-monwealth. ties concur in this. 'No sovereignty,' says Mr. Justice Story, 'can extend its process beyond its own territorial lim- Edwards, P. J., July 29, 1924.-The its to subject other persons or property bail already given by defendant is in the to its judicial decisions. Every exertion sum of fifty thousand dollars. The bail of authority beyond these limits is a mere is for appearance only. A few weeks nullity and incapable of binding such ago the district attorney made an applipersons or property in other tribunals:' 'cation before one of the judges for an

Embezzlement-Bail for appearance

--Constitutional law.

In fixing bail for appearance the Constitution provides that excessive bail shall not be required.

(5) the prior standing and reputation of the defendant.

Application for increase of bail. Refused.

H. A. Scragg, Dist. Atty., for Com

R. W. Rymer, for defendant.

order increasing the amount of bail. The judge held the matter under advisement and stated that the application would be submitted to the court en banc. The consideration of the matter was held over until after the grand jury had made their report. The three judges have now passed upon the application; and they are unanimously of the opinion that the bail already given is sufficient.

Samuel Meisenhelder, Esq., for excep

Exceptions to the appraisement of real In fixing the amount of bail for ap-of Albert D. Leathery, late of the City estate elected to be taken by the widow pearance in a criminal case, several mat- of York, deceased, in the Orphans' Court ters are to be considered. First of all it of York Co., Pa. Exceptions dismissed. is a constitutional guaranty that excessive bail shall not be required. This provision is found in the Constitution of tions. the United States and in that of Pennsylvania. If the charge against the de- Spencer D. Wareheim, Esq., contra. fendant is that of embezzlement, the court should have regard to the amount Ross, J., July 7th, 1924.-Albert D. of the defalcation, but this does not al-Leathery died intestate, leaving to surtogether control the action of the court, vive him no lineal heirs, but a spouse, because the bail is for appearance and Lottie Leathery. Under her claim of exnot for security; and where it appears emption under the Acts of June 7th, that security, in a greater or lesser 1917, P. L. 429, Sec. 2 (a), P. L. 431-2, amount, has been given to the party or and amendatory Act of June 11, 1917, body defrauded, the amount involved is P. L. 755. appraisers were duly apof less importance. In general, the mat-pointed by this court and sworn. ters to be considered in fixing the gether with personal property of the deamount of bail are: (1) The gravity of cedent's estate, the said appraisers rethe offense; (2) the sum embezzled; turned that they appraised "the fol(3) the penalty in case of conviction; lowing described house anyd lot, situate (4) the age and condition of health of in the 11th ward of the City of York, the defendant; and (5) the prior stand- Pa., on the north side of West Philadeling and reputation of the defendant. phia Street, containing in front on said Now, July 29, 1924, the application to West Philadelphia Street a width of 20 increase the bail of defendant for ap-feet, more or less, and extending northpearance is denied.

O. C. of

Leathery's Estate

To

wardly of uniform width a distance of 175 feet, more or less, to an alley, and York Co. known as No. 725 West Philadelphia Street, $4,000.00.'

The exceptions to the confirmation of this appraisement are by John M. Leathery, a brother of the decedent, and are stated as follows:

Decedent's estate-Appraisement under Section 2 (a), of Act of June 7, "1. The valuation laced upon said 1917, P. L. 431-432-Exception to ap-real estate, situate in the Eleventh Ward

praisement.

There is no provision for an appeal from an appraisement made under Section 2 (a), of the Act of June 7, 1917, P. L. 431-432, as amended by the Act of June 11, 1917, P. L.

755; but the courts have sanctioned a review of such appraisements upon exceptions.

The act does not restrict the spouse in the selection of any class or kind of real estate,

nor does it allow any relative or other heir. or creditor to restrict the choice.

of the City of York, Pennsylvania, on the north side of West Philadelphia Street, containing in front on said West Philadelphia Street twenty (20) feet, more or less, and extending in depth of an uniform width throughout a distance of one hundred and seventy-five (175) feet, more or less, to an alley and known as No. 725 West Philadelphia Street, and

appraised by said appraisers at $4,000.00, 0. C. of
is not the true market value of said real
estate, but that the correct valuation of
said real estate is $4,500.00 and up-
wards.

"2. Your exceptant stands ready and willing to pay for said property or bid at . a public sale of said property and purchase the same at the sum of $4,500.00, and is willing to deposit with your honorable court a forfeit of $450.00 for the faithful compliance of his said offer.

"3. The valuation placed upon said United States Treasury notes by the appraisers valued at $1,000.00 is too low, as there is due on said Treasury notes some interest, the amount of which your exceptant caannot state."

Lackawanna Co.

Cummings' Estate

Decedent's estate-Additional inventory-Duty of executor-Act of June 7, 1917, P. L. 447.

filed by the executrix.

After death of testator an inventory was Subsequently, personal property consisting of household goods and cash in bank was discovered which was

not included in the inventory, and a petition A citation was awarded and the executrix in her answer claimed the property referred to, under the provisions of decedent's will,

was filed asking for an additional inventory.

belonged to her.

The duty of every executor and administrator, under the Act of June 7, 1917, P. L.

147, section 12 (a), is to make a true inven

tory of the personal estate of the decedent

and file the same in the register's office within thirty days from the time of administration granted, and where personal prop

quently discovered comes to the possession an inventory thereof, and file the same with

or knowledge of the executor, he shall make

in thirty days from the time of the discovery thereof.

It will be noticed that the law under which this exemption was claimed and appraised does not give a right of repeal, but the courts have sanctioned a reviewerty not contained in the inventory subseupon exceptions, and if fraud or evident partiality is apparent, have referred the appraisement back to the appraisers; but nowhere in the act can we find that any restriction is placed upon the spouse to select any class or kind of real estate, nor does it allow any relative or other heir or creditor to restrict her choice. The value of the real estate chosen is expressly within the judgment of the disinterested, sworn appraisers appointed by the court.

The valuation placed by the sworn appraisers must be respected, unless there is clearly shown fraud or collusion, or such evident undervaluation of the property as may suggest fraud or collusion: Vandervort's Appeal, 43 Pa. 462, and authorities cited by Judge. Barnett in Troutman's Estate, 30 D. R. 708.

Mere inadequacy of price is not sufficient to set aside the appraisement: Dotson's Estate, 28 R. 9.

We are not convinced by any evidence produced that the appraisers exercised and partial or unfair disposition of the duties they were sworn to perform, or that any fraud, collusion or undervaluation of the property appraised can be imputed to them.

And now, July 7th, 1924, the exceptions are dismissed and the appraisement as presented to us is confirmed.

Irrespective of the respondent's claim under the provisions of the will, the proper tlement of her account. ministrator should not be the arbiter of the his responsibility to creditors

time and place to assert claims is on the setAn executor or ad

measure of
or distributees.

Citation to executrix to file additional inventory.

T. P. Duffy, for petitioner.

M. J. Martin, for respondent.

Sando, P. J., June 21, 1924.-The decedent, Rose Cummings, died on the 14th day of December, 1920, testate, and letters testamentary were granted on December 31, 1920, to Mary L. Cummings, who filed an inventory on December 21, 1921, containing the following, viz.:

kind except some old clothing of deced"We find no personal property of any

ent which we deem of no value," to

which the record shows no exceptions

were filed thereto.

The petition in this proceeding to file an additional inventory was filed on May 1st, 1922, upon which a citation was awarded and to which an answer was filed.

While the inventory is prima facie binding upon the executor: Billheimer's Estate, 2 Lanc. Law Rev. 198, yet, he may overcome it with proof: Semple's Estate, 189 Pa. 385.

It appears from the testimony at the] hearing that at the time of the death of Mrs. Cummings at her home at the corner of Madison avenue and Gibson street in the city of Scranton, there was personal property consisting of household As it appears from the testimony that goods and furnishings, etc., which is there was some personal property beclaimed by the respondent, Mary L. longing to the decedent, and it is the duty Cummings, amounting to twenty-three of the respondent under the provisions dollars. of the statute to file an inventory; and the proper time and place for making her claim under the provisions of the will is on the settlement of her account.

In the will of Rose Cummings, dated the 9th day of December, 1918, and entered for probate in the office of the register of wills on December 31, 1920, it is provided as follows, viz.:

"Item. I give and bequeath to my daughter Mary L. Cummings, all my household goods in the home occupied by me at 747 Madison avenue, Scranton, Pa.

Now, March 7, 1923, it is ordered and directed that Mary L. Cummings, executrix, file an inventory within twenty days after notice of this order.

Lancaster Co.

Croyle v. Groff & Wolf Co.

Item. I give, devise and bequeath to C. P. of my daughter, Mary L. Cummings, her heirs and assigns forever, the single house and lot situate at the corner of Gibson street and Madison avenue, in the Ninth ward, city of Scranton, Pa., Practice Defective statement on aptogether with all improvements and per-peal from magistrate - Amendment —

sonal property on premises.

"All the rest and residue of my estate Rule to arbitrate-Acts of June 16, I give and bequeath to Mary L. Cum-1836, P. L. 719, May 14, 1815, P. L.

mings.'

A statement filed on appeal from the judg

ment of an alderman, which does not have on it the endorsement required by Section 10 of the Practice Act of 1915, is defective and the Act of 1915 applies, although after the ling of the statement the plaintiff took out 1826, which is still pending. The court, howbe amended.

a rule to arbitrate under the Act of June 16,

The duty of every executor and ad-483, and April 10, 1921, P. L. 144. ministrator, as expressly declared by the Act of June 7, 1917, P. L. 447, section 12 (a), is to make a true and perfect inventory of the personal estate of the decedent and file the same in the register's office within thirty days from the time of administration granted. Neither evasion or noncompliance with this positive enactment is contemplated. And by the same seection, clause (h) where personal. property not contained in the inventory subsequently discovered comes to the possession or knowledge of the executor, he shall make an inventory thereof, and file the same within thirty days from the time of the discoveery thereof.

ever, in such case will allow the statement to

Irrespective of the respondent's claim under the provisions of the will, the proper time and place to assert claims is on the settlement of her account. An executor or administrator should not be the arbiter of the measure of his responsibility to creditors or distributees.

Motion to strike off plaintiff's statement. Amendment allowed.

F. Lyman Windolph, for motion. Daniel B. Strickler and John A. Coyle, contra.

Landis, P. J., June 21, 1924.—This suit comes into this court on appeal from the judgment of an alderman. In accordance with the provision of the Act of April 10, 1921, P. L. 144, which amends the Practice Act of 1915, the procedure is the same as is provided for in that act for cases commenced in the court of common pleas.