2. The census of 1880 showing that the county of Luzerne contained less than one hundred
and fifty thousand inhabitants (sec. 2 of the act of May 11, 1881, P. L. 22), did not prevent the
act of June 22, 1883, P. L. 139, from going into effect as to said county. Glennon v. County of
Luzerne, 248.

3. Whenever an effort is made to apply the act of March 31, 1876 (salaries), to an officer of
any particular county, the fact to be ascertained is, whether the county contained sufficient
population at the time the officer entered on the duties of his office. Id.

4. Whatever the population may previously have been, or what it may hereafter become,
does not control the case. Id.

5. The rule announced by Rice, P. J., in 1 Kulp, 297, adopted by the Supreme Court, viz:
In the absence of express legislative declaration of the fact, or of any other method provided by
the legislature for ascertaining it, the last preceding decennial census is to be resorted to as the
best evidence of the population of a county in case of classification by population. Monroe v.
Luzerne County, 7 Out. 281, modified. County of Luzerne v. Glennon, 299.

6. Each county must remain in the class in which the last census found it until it is trans-
ferred to another class by a subsequent census. Id.

CERTIORARI. See JUSTICE OF THE PEACE. WARRANT OF ARREST.

1. Where with the use of due diligence it was impossible to serve a writ of certiorari before
the first day of the term, but where it was served and the proceedings were sent up before the
first argument court at which it could have been heard under any circumstances, it was held
that the writ should not be non prosed. Hendricks et ux. v. Hughes, 9.

2. A summons issued and was served in debt; the defendant pleaded a setoff, after which
the summons was changed so as to read "trover." Held, that the proceeding was unauthorized,
and the irregularity could be shown by evidence taken by depositions. Castner v. Fanning, 17.
3. Quaere: Has a justice power to amend by changing the form of action? Id.

4. An appeal taken by a married woman, which was never filed, will not prevent her taking
a certiorari to review the record and proceedings before the justice. Stephens v. Hadsell et
u.t., 66.

5. The record should show a service of the rule as well as the interrogatories.
Savings Bank v. Boyd, 151.

Anthracite

6. The hour when the writ (issued by a justice) is made returnable, should be stated with
certainty. Id.

7. A summons or attachment issued by a justice is fatally defective which does not inform
the defendant where he is to appear. Id.

8. Unless the defect is cured or waived it may be taken advantage on certiorari issued
more than twenty days after judgment. Murdy v. McCutcheon, 14 Nor. 435, followed. Id.

9. Where a special deputation by a constable to serve a summons is incomplete in not show-
ing that it was made by a constable of the proper county, and the record does not show that
he appeared before the justice to make his return or identify his official character, the service is
irregular, and on certiorari-the judgment being by default-the proceedings will be reversed.
Dolph v. Tooley, 94.

10. Warner v. Wells, 3 Luz. Leg. Reg., 111, followed. Id.

11. Where a case pending before a justice is adjourned without day, he has no authority to
proceed further with the action without proof of service of notice on the defendant. Edwards
et ux. v. Carr, 192.

12. In an action of debt against a man and his wife, upon certiorari, a nolle prosequi may be
entered as to the wife, and judgment may be taken against the husband alone; provided, the
record shows a distinct promise by the husband to pay. Pearne et ux. v. Hutchins, 190.

13. The fact that notice of a hearing before a justice, after an indefinite adjournment of the
case, was not given to the defendant, may be shown by parol. Van Why v. Burgunder, 202.
14. So, also, it may be shown that the plaintiff did not appear on the day that the record
shows judgment to have been rendered against the defendant by default; that the defendant did
appear, and that the trial was indefinitely adjourned. Id.

15. Costs in. Gimber v. Fehlinger, 187.

16. Where it is sought to overturn an old judgment by evidence contradicting the con-
stable's return, the clearest and most satisfactory is required. Creveling et al. v. Kindig, 217.

17. Where the want of jurisdiction does not appear on the face of the record, and the defend-
ant has been duly served with process and has knowledge of the judgment, the certiorari must
be sued out within twenty days. Id.

CERTIORARI. (Continued.)

18. Not so, where it appears on the face of the record that the justice did not have jurisdic-
tion. Id.

19. It appeared by uncontradicted evidence that after the rendition of judgment a material
and apparently unauthorized alteration was made in the constable's return. Held, that this de-
stroyed its conclusiveness as evidence of the manner of service, and that, consequently, evidence
as to the actual mode of service was competent for the purpose of showing that the justice did
not have jurisdiction of the defendant in fact or by legal presumption. Fidelity Casuality Com-
pany v. Ketrick et ux., 225.

20. General rule as to admission of evidence to impeach the record of a justice of the peace
on certiorari considered. Id.

21. Where the alderman had jurisdiction of the cause of action his decision as to the liability
of the defendant cannot be reversed on certiorari by referring to the testimony taken before him;
for, although sent up by him, it is not part of the record. Jenkins v. Jenkins, 233.

22. Upon certiorari a record will not be reversed for a false return of service, unless the
falsity be made to appear very clearly by depositions. Watson et al. v. Timlin, 316.

23. The return under oath need not be by affidavit on the back of the summons.

Id.

24. Enough must appear on the record of the justice to show a cause of action within his
jurisdiction. Baab v. Brader, 352.

25. Where the justice has jurisdiction of the case a certiorari issued more than twenty days
after judgment is too late. Depositions showing error in the method of exercising the jurisdic-
tion, will not alter the application of the twenty day rule. Tully et ux. v. Williamson et al. 388.
26. Where there has been personal service of summons, a variance as to the name of the
plaintiff between the summons and the transcript of the docket entries does not constitute one
of those jurisdictional defects which will avail to overturn the judgment after the time for suing
out the writ of certiorari has expired. Peters v. Susquehenna Fire Insurance Com-
pany, 456.

27. It is not essential to state the hour, where the record shows that the parties appeared on
the return day and went to trial, and that judgment was rendered publicly. Storey v.
McGlynn, 480.

28. It is not to be presumed that the justice acted fraudulently or corruptly from the mere
excessiveness of the damages awarded. Perrego et al. v Nichols et ux., 472.

29. The fact that the record was not sent up on or before the return day of the writ does
not warrant a dismissal of the certiorari. Id.

30. Where a plaintiff in error takes no steps within ten days after the return day of the
writ to compel a return of the record, the defendant in error is entitled to a dismissal of the writ
as of course. But a motion to dismiss the writ because of non-compliance with the above rule
of court comes too late after the proceedings have been returned. Id.

31. The original writ must be delivered to the justice. Service by copy is irregular and
defective, and he cannot be attached for disregarding it. Id.

32. But where service, although irregular and defective, has been made within five days
after the writ issued, and, notwithstanding the irregularity, the justice sends up his proceedings,
and makes return to the original before motion to dismiss, the court will review the proceedings
as if the writ had been regularly served. Id.

33. Where the justice renders judgment by default, the hour as well as the day should be
stated on the record. Id.

34. On the reversal of the judgment of a justice of the peace on certiorari, an execution
cannot issue for costs. Boston v. McDaniels, 514.

35. A certiorari is a substitute for a writ of error, and no point can be raised by it which
is not apparent on the face of the proceedings. Depositions and parol proof are only admissible
to show want of jurisdiction, or fraud or corruption on the part of the magistrate. Luke v.
Schleger, 505.

36. Upon certiorari all the proceedings of the magistrate, as they appear of record, are to
be taken as true. Id.

37. The rule that where judgment of a justice is entered by default the hour must be stated
does not apply where the record shows that the parties appeared at the hearing. Noble v.
Scranton Glass Company, 526.

38. A summons from a justice need not be served on an "adult" member of the family.
Schilki et al. v. Moyer, 512.

CERTIORARI. (Continued.)

39. In an action before a justice of the peace to recover back taxes paid to a collector under
threat of distress, the statement of the plaintiff's demand ought to be so certain and definite as
to show a legal cause of action within the jurisdiction of the justice, without the necessity of
resorting to presumptions. Miller et al. v. Lowenstein, 521.

CHARTER. See CORPORATION.

COAL LEASE. See WILLS.

1. An instrument which is in many of its terms apparently a lease of coal is in reality a sale
and conveyance if it passes "all the coal beneath the surface of the tract," with the right "to
mine the coal and remove the same," and "the true meaning of the lease is to make it perpetual
until all the coal is mined." Sanderson et al. v. City of Scranton, 125.

2. Coal under such a lease is properly assessed to the vendee. Id.

COMITY. See CORPORATION. RECEiver.

COMMON CARRIER.

1. At common law a public carrier is under the restriction that its charges be reasonable,
and that it does not abuse its powers. This applies also to telegraph and kindred corporations.
Comments by Judge Cooley, in North American Review, on recent decisions in the the U.S.
Supreme Court, 108.

2. When the legislative grant is silent on the subject of charges, the right of the state to
restrict them is unquestionable. Id.

3. When the grant gives the power to the corporation to fix charges in general terms and
prescribes no maximum, the right of the state to restrict charges is now settled, on the ground
that, in conferring upon the corporation the right to charge for the services rendered without
expressly abdicating its power of control, the state must be presumed to have reserved it. Id.
4. When the grant is subject to a maximum limit, nothing which observes the limit can be
deemed abuse. Id.

5. Corporate profits may be rightfully considered in determining the reasonableness of
charges. Id.

6. Whenever the power to amend or repeal at will has been reserved, the control of the
state must be deemed practically absolute, and the corporators have only an estate at will in
their franchises. But in the case of the repeal of corporate franchises, the corporators retain
their property, and radical changes or repeals must be made with reference to the fundamental
rules of right and justice. Id.

7. The Dartmouth College case, 4 Wheat., held to be applicable in its full extent only to
eleemosynary corporations. Id.

COMMON SCHOOLS. See MANDAMUS. STATUTE.

1. The 25th section of the act of 1854, in respect to the selection of school books by directors
is mandatory in its character, in that it requires that the selection of a series of school books shall
be at a meeting of directors and teachers after the annual election of the latter. Krickbaum v
School Directors of Benton, 30.

2. An injunction will lie against school directors to restrain them from adopting a new series
of text books otherwise than as prescribed by law. Id.

3. When school directors have adopted a series of school books, not at a meeting of
directors and teachers, they will not be restrained by injunction from adopting a series of books
according to law at any time after discovering their error, the books irregularly adopted not
having been introduced into the school. Id.

4. School directors may be compelled by mandamus to submit an itemized statement of
their receipts and expenditures to the proper board of auditors. Baer v. Weaver et al., 57.
5. They cannot be compelled to furnish such statement of the receipts and expenditures of
their predecessors in office, who must answer for themselves. Id.

6. On an application by school directors for permission to borrow money, it is lawful for
the court to appoint an examiner to take testimony as to the facts alleged in the petition and re-
monstrance, and upon his report being filed to direct the payment of a reasonable allowance for
his services. In Re Petition of School Directors of Wilkes-Barre,59.

7. The school district may be directed to pay the allowance in the first instance, although
the report of the examiner is favorable to the petition of the directors. Id.

COMMON SCHOOLS (Continued.)

8. In the absence of positive proof of non-conformity to the law, or fraud or corruption on the
part of public officers vested with discretionary powers, the mode of exercising such powers is
beyond the jurisdiction of the courts. In Re Petition of School Directors, 104.

9. The act of April 11, 1862, is a remedial law, and its object was to provide for an equitable
division of school property between the old and new school districts, in such a way as to justly
distribute the burthen of taxation. In Re School District of Luzerne Borough, 162.

10. The old district cannot be deprived of its due share of the ownership, control, and bene-
fits of the property taken off by the erection of a new district, without just compensation being
made by the latter. Id.

11. As the assessable value of the taxable property was the basis upon which the respective
districts contributed proportionally towards the acquisition of the property to be divided, that is
the proper basis for the division. Id.

12. As to cash on hand, however, a different rule applies. That part thereof arising from
taxation is to be divided according to the ratio of the taxable property; and that which is part
of the state appropriation is to be divided according to the ratio of taxables. Id.

13. Abington School District, 3 Norris, 182; Jenkintown School District, 6 W. N. C., 67;
and Lower Allen School District, 10 Norris, 182, cited. Id.

CONFESSION OF JUDGMENT. See STATUTE OF LIMITATIONS.

I. Where judgment is entered on a confession more than ten years old contained in an
amicable action of ejectment, leave of court, based on affidavit, must be obtained as required in
Rule XVIII., otherwise the judgment will be stricken off. Lanning v. Davies, 319.

2. Effect of delay in moving to open a confessed judgment procured by fraud or duress
considered. Lord v. Brezee et al., 358.

3. A judgment note given by a married woman, although she has been declared a feme
sole trader, is null and void, and will not justify an execution against her property. Rabe v
Barber, 484.

CONFLICT OF LAWS.

1. The coverture of the defendant in an action upon her personal undertaking (according
to the law of the state of Virginia), is not a fact affecting the jurisdiction of the court, and hence
in a suit in this state upon a judgment obtained in the Virginia court the evidence of that fact is
incompetent and irrelevant. Tuggle v. Leath et ux., 234.

CONSTABLE. See CERTIORARI. CORONER. CRIMINAL LAW.

1. Where a constable fails to appear and make his returns of persons engaged in the sale of
liquors, he may, in this county, be removed from office, under the act of March 12th, 1866. In
Re Simon Arnold, 182.

2. Absence from the county on private and unofficial business is not a sufficient excuse for
neglect in this particular, especially if he has received notice in due form to return certain alleged
violators of the liquor laws. Id.

CONTEMPT. See MANDAMUS EXECUTION.

CONTRACT. See ATTORney and Client.

FRAUD. JUDGMENT.

1. Part payment of an overdue but unrestricted debt is not of itself a good consideration,
though if the debt were not yet due it would be. Hendricks v. Thomas, 81.

2. Where a debtor pays a portion of the debt on execution, and makes a collateral, indefinite
promise to give the creditor future employment, whereupon the creditor satisfies the judgment;
upon failure to give the employment promised, the remedy is by action for breach of contract,
and not by striking off satisfaction of the judgment, or by trial of an issue upon the judg
ment. Id.

3. For same case between the parties, see 10 Luz. Leg. Reg. 169, 1 Kulp, 381; 11 Luz.
Leg. Reg. 191, 2 Kulp, 149. Id.

4. A suit cannot be maintained against a person merely for undertaking to get a property
insured where he was paid nothing, and where the premium had not been paid. Frauenthal v.
Derr & Bro., 176.

5. That is a mere non-feasance of an executory promise. Id.

6. When an act or contract is prohibited under a penalty, such act or contract will be un-
lawful and void, although the statute imposing the penalty does not expressly so declare.
Atherton et al. v. City of Wilkes-Barre, 402.

CONTRACT. (Continued.)

7. Where a contract is only voidable or relatively void on the ground of fraud or duress
practiced on the party, it may be ratified or affirmed. Lord v. Brezee, et al., 358.

8. "He who knowingly accepts and retains benefits under such a contract, or who uses the
property acquired as his own, after the discovery of the fraud, or unduly delays claiming back
his
property or giving up what he received, affirms the validity of the contract." Negley v.
Lindsay, 17 Sm. 227, followed. Id.

CONSTITUTIONAL LAW. See COMMON CARRIER. TAXATION.

1. Laws which do not apply to the whole state are special or local laws, and the exemption of
one county from their operation is just as effectual in giving to them the character of special or
local laws as the exemption of one-half or two-thirds of the state. Davis et al. v. Clark, 168.

2. The purpose of the act of June 28, 1879, P. L. 182, is to extend the benefits of the Me-
chanics' Lien law to additional subjects and in favor of another kind of labor; it is therefore
subject to the prohibition in the constitution, namely, Art. III., section 7th, which reads as fol-
lows, to-wit: "The general assembly shall not pass any local or special law authorizing the
creation, extension, or impairing of liens. Id.

3. The said act offends against the prohibition above quoted, and is, therefore, unconstitu-
tional. Id.

1. It is the duty of coroners to hold inquest, super visum corporis, only where there are
suspicious circumstances surrounding the death, indicating that it was caused feloniously or in a
violent or unnatural manner. Where death results from natural causes as by a stroke of light-
ning, a fit of epilepsy, apoplexy, or a fall induced by drunkenness, there should be no inquest.
In Re Coroner's Inquests, 451.

2. The coroner is the judge of the necessity for an inquest, and it will be presumed that he
acted in good faith, and his costs will be allowed until the contrary is shown. Id.

3. Coroners' jurors are entitled to one dollar per day where the time employed does not ex-
ceed six hours, and one dollar and fifty cents per day where it exceeds that amount; and the
time should appear by the return of the inquest. They are entitled to no mileage or traveling
expenses. Id.

4. A constable is not entitled to fees from the county for summoning a coroner's jury. The
coroner must summon his own jury or pay for it himself. Id.

5. Witnesses before a coroner's jury are entitled to no fees or traveling expenses. Id.

6. The county is liable for the services of a physician, called in by the coroner to make a
post mortem examination, but not for the services of two physicians. Id.

7. The testimony taken before the coroner should not be returned with the inquest. Id.

CORPORATION. See COMMON CARRIER. WAGES.

1. The requirements of the act of assembly relative to charters of churches must be strictly
complied with. In Re English Baptist Church of Shenandoah, 145.

2. A charter which does not provide that the property shall inure for the benefit of the lay
members is fatally defective. Id.

3. Where the by-laws of a corporation provide for the election of a board of directors, seven
in number, upon a day certain, the failure to choose a full board, because of a tie vote as to three
candidates, will not vitiate the election of those who received a clear plurality of the votes cast.
Commonwealth ex rel. v. Parrish et al., 220.

4. In such a case the corporation may proceed to fill the vacancies caused by the tie votes at
a stockholders' meeting, held upon due notice to the stockholders. Id.

5. The system known as the "cumulative vote" does not alter the general rule that when,
for any reason, there has been a failure to elect a full board of directors, it is the duty of the
corporation to proceed with another ballot. Id.

6. An election was held for seven directors of an electric light company, chartered under
the act of 1874; five only received a plurality of votes cast, three others voted for received a tie
vote. Held, the failure to elect the entire board did not affect the election of the five who re
ceived a plurality of votes; they constituted a quorum and their election was valid. Wright v.
Commonwealth, 401.

7. The old board, under the circumstances, would not hold over. Had the stockholders not
adjourned, but proceeded to ballot again, the result would have been legal, or they might have
adjourned the election to a subsequent day. Id.