water used, and the cost of this water to the company, with a reasonable allowance for profits." The exact language of the charge upon this point was as follows: "In arriving at a conclusion of the reasonable compensation which the plaintiff should receive, you are not limited simply to the actual cost of the water drawn by the borough from the hydrants. The reasonable compensation would be the value of the water and the service in furnishing it to the hydrant ready for use for the purposes for which it was required." The able argument of defendant's counsel has failed to convince us that this statement of the measure of damages was either vague or incorrect. The error, as it seems to us, which inhered in the point submitted and in the argument, is in assuming that the right of the plaintiff to recover rested on an implied assumpsit arising from the use of the water by drawing it from the hydrants simply. This is a mistake. We expressly charged the jury that "in the case of a borough the law would not imply an agreement to pay from the fact alone that she has used the water." And in another portion of the charge the jury were specially instructed that in order for the plaintiff to recover at all, "it must be established that the water was furnished by the company to the hydrants of the borough at the instance and request of the latter." It must be conceded then that this fact is found by the verdict, and thus as we conceive, furnishes the true standard by which the compensation should be measured. With this fact found, it would be clearly inconsistent and illogical to limit the plaintiff's recovery to the value of the water actually drawn from the hydrants. If there was any legal obligation resting on the borough to pay, it arose from the fact that they caused the company to furnish to their hydrants an adequate and constant supply of water for the purposes required, and for this they were bound to pay a reasonable compensation, or were not bound to pay at all. As a further reason for a new trial it is urged that the court rejected testimony of the effect of the water upon the steamer. The stenographer's notes upon this point read as follows: "I call your attention to the water that comes from some of these plugs. What is its character and what effect has it upon the steamer?' Objected to. Defendant's counsel: 'It is for the purpose of showing that this water was mixed with sand and other material destructive to the steamer, which should be permitted to be set off in this suit.' The court: 'I hardly think that would be evidence."" The foregoing is all that the record, as it now stands, contains in relation to the subject. While it might be argued that the record does not show a positive and definite rejection of the offer, yet the language of the court might fairly be given that construction, if there were nothing further than what appears upon the record in explanation. At the time we understood, and so entered the fact on our brief notes, that the offer was withdrawn, and our recollection upon the subject, although not positive, is that the withdrawal of the offer was accompanied by the statement of counsel that it might be renewed at some subsequent stage of the trial. On the other hand, the affidavit of defendant's counsel asserts that the offer was disallowed, that he subsequently renewed it in a slightly changed form, and requested a bill to be sealed at the time. As to the renewal of the offer we have no recollection whatever, neither do our own notes, nor the notes of the stenographer, show anything upon the subject. To the judge trying the case this presents a question of extreme delicacy, but after a full consideration of the matter, and of the effect of our ruling as a precedent, we conclude it to be the duty of the court in such a conflict, and the only safe rule to follow, except where there is the clearest proof of mistake, to treat the notes of the stenographer as containing the full statement of what occurred at the time. We assume from the affidavit of the defendant's counsel, and his undoubted integrity, that he must certainly have understood the court as definitely rejecting his offer, and as we have said, the remark of the court as it stands upon the record without explanation, might fairly be given that construction. We do not think, as is argued, that it was competent to offset against the plaintiff's demand the alleged consequential damage to the steamer, for the reason that under the evidence such damages, if any, did not arise ex contractu, neither did it appear that the ownership of the steamer was in the borough so as to give the latter a right of action, of recoupment, or of set-off, for damages thereto. But, on careful consideration it will be seen, although the purpose of the offer was hastily worded, that the evidence tended to show, steamer. not merely damages to the steamer as an offset, but a failure of the plaintiff company to furnish water suitable for the purposes for which it was required, as evidenced by the injury to the For this purpose we think the question was competent, inasmuch as it affected the compensation which, in equity and good conscience, the company was entititled to claim. Heck v. Shener, 4 S. & R. 249; Wright v. Cumpsty, 5 Wr. 102. The rule for new trial is made absolute. A. H. McClintock and A. T. McClintock, Esqs., for plaintiffs. S. J. Strauss and Geo. B. Kulp Esqs., for defendant. Court of Common Pleas of Luzerne County. HARRISON 7. TILLINGHAST et. al. Pleading-Abatement. A plea in abatement will not ordinarily be received after a plea in bar, but where a plea in bar has been entered inadvertently and by mistake, and the defendant has not been in default, and ap. plies at once, it is in the discretionary power of the court to permit him to withdraw it and to plead in abatement. Rule to show cause why the defendant should not be permitted to withdraw plea of not guilty and plead in abatement. The opinion of the court was delivered March 30, 1885, by RICE, P. J.-The authorities cited by the plaintiff's counsel, as well as many more which may be cited, show that a plea in bar is a waiver of a former plea in abatemeut, that after a plea in bar it is too late to plead in abatement, and that a defendant is not entitled as a matter of right, under our statutes relating to amendments, to withdraw a plea in bar and substitute a dilatory plea. Riddle v. Stevens, 2 S. & R. 543; Stoever v. Gloninger, 6 S. & R. 69; Tams v. Hitner, 9 Barr, 447: Hartz v. Com. 1 Gr. 359; Beitler v. Story, 10 Barr, 418; Good Intent Co. v. Hartzell, 10 H. 277. Further, because dilatory pleas are held in such great disfavor, it is held that a party may forfeit his right to plead in abatement by laches. For example, he is not entitled, as matter of right, to file such plea after the time allowed for pleading has expired; Hinckley v. Smith, 4 W. 433; Daniels v. Sanderson, 10 H. 443; Ralph v. Brown, 3 W. & S. 398; Witmer v. Schlatter, 15 S. & R. 150; Chamberlain v. Hite, 5 W. 374; and it is positive error to permit him to do so on the trial of the case. Green 7. N. Buf. Twp. 6 Sm. 110; Murphy v. The Times, 7 Out. 260. It also seems to be the rule, that if a defendant under terms of pleading issuably puts in a plea in abatement, the plaintiff may treat it as a nullity and sign judgment. But, if we correctly understand the state of the record, it does not appear that any of these conditions, by which a party may lose the right to plead in abatement, existed in this case at the time the present plea was filed. The declaration appears not to have been filed until several terms after the return day, and the defendants were not under rule to plead. (See sccs. 4 and 5, rule XXV.) Hence the only question is whether, under such circumstances, this is a proper case for the exercise of the discretionary power of the court to permit a withdrawal of the plea of not guilty, and the substitution of a plea in abatement. Notwithstanding the disfavor in which pleas in abatement are held, the principle is recognized in several of the cases above cited that this may be done “under special circumstances, of which the court will judge." The fact is asserted by affidavit of counsel (and we do not understand it to be seriously denied), that the plea of the general issue was entered "inadvertently and by mistake," that the counsel discovered his mistake on the same day, but that, court not being in session, he could not apply for leave to rectify it on that day, but did apply at the first session thereafter (within two days) and obtained the present rule. While we are not entirely clear upon the question, yet inasmuch as it does not appear that there was any previous laches or default, and as the motion to amend was made at the very first opportunity, we are inclined to the opinion that, under all the circumstances, it is a proper case for the allowance of the order asked for. On the other hand, the defendants ought to interpose no obstacles in the way of the earliest possible disposition of the plea. The rule is made absolute. Court of Common Pleas of Luzerne County. TERRY V. KNOLL. Attachment under act of 1869. 1. Where the defendant's affidavit is positive in its denial of the allegations of fraud contained in the plaintiff's affidavit, the burden of proof is cast on the plaintiff. 2 Silence is in itself an important fact when a defendant has the opportunity and declines to speak in explanation of other relevant facts peculiarly within his knowledge. 3. A fraudulent concealment of money is within the provisions of the act of 1869. 4. An assignment and disposition of property intended to be effected for the purpose of defeating creditors by means of a sheriff's sale upon a fraudulent and collusive judgment, are within the meaning of the act. Rule to show cause why attachment issued under act of March 17, 1869, shall not be dissolved. The opinion of the court was delivered June 19, 1882, by RICE, P. J.-We take up this case first in order that the defendant may have the benefit of the testimony taken on his behalf. But, as many of the questions of fact involved here may possibly arise again on distribution, we do not purpose at this time to discuss them at length. Manifestly, it would serve no good purpose to do so, and indeed, to do so might embarrass the issue which may hereafter arise between the different claimants of the fund. We have, nevertheless, carefully examined and considered the testimony submitted upon both sides of the present issue, and have endeavored, so far as possible, in such consideration to free our mind of impressions received and convictions formed on a former hearing, and we are satisfied that this attachment, as well as those issued by other creditors, must be sustained. The plaintiff's affidavit alleges a fraudulent concealment of money and property, and also a contemplated fraudulent assignment and disposition of property. I. If, as is claimed, the defendant borrowed of Paul Suchorski $2,200, and of his brother, S. P. Knoll, $3,600, in the year 1880, and of the latter $1,200 in addition in the year 1881, one of two conclusions would seem to be inevitable from a careful examina |