EVIDENCE. (Continued.)

any other fact, and is also a proper subject of agreement by the parties, if they see fit to dis-
pense with proof. Glennon v. County of Luzerne, 248.

7. Before the act of 1869 (witnesses) a party to commercial paper, negotiated in the ordi-
nary course of business before maturity, was incompetent to testify to anything tending to im-
peach its validity, before or at the time it passed out of his hands. Pardee & Markle v. John,

251.

8. The act of 1869 does not affect the rule, in a case within the proviso, relating to suits by
and against executors, etc. Id.

9. The endorser may, notwithstanding the above rule, testify to payment of the note in a
suit against a maker. Id.

10. The indorser, in a suit against the maker, testified in general terms that the note was
paid "by judgment and property." Held to be insufficient. Id.

11. Plaintiff testified that defendant promised to pay the printing for the democratic com-
mittee; another witness partly corroborated that; defendant testified that he had no recollection of
such a contract. Held, that the evidence was sufficient with plaintiff's book entries to establish
his claim. Hibbs v. Woodward, 284.

12. Silence is in itself an important fact when the defendant has the opportunity and declines
to speak in explanation of other relevant facts peculiarly within his knowledge. Terry v.
Knoll, 272.

13. Where a motion to open a judgment has been delayed for a long time after knowledge of
the defense, and the delay has been continued until witnesses have died or been disqualified,
and the defense then set up rests chiefly on the testimony of the defendant, his testimony, in so
far as it is in conflict with that of the other witnesses, ought to be scrutinized with very great
Lord v. Brezee et al., 358.

care.

14. Application of the rule that, in the absence of fraud and mistake, a written contract is
presumed to have merged in it a previous parol agreement relating to the same subject matter.
Pettebone, Executor, v. Beardslee et al., 406.

15 The plaintiff, defendant and two sureties on certain judgment notes being present at a
sheriff's sale of defendant's personal property, the sureties testified that they were prepared to
bid up the property to an amount sufficient to cover the judgments; that the defendant in-
formed them that the property was to be struck down to the plaintiff at a nominal sum and the
judgments satisfied; that this remark was addressed not to plaintiff or in the course of a con-
versation with him, but was spoken in a room in a tone of voice loud enough for the plaintiff,
who stood by the door with the sheriff, to have heard if he had been listening. The plaintiff
testified that he heard no such remark and that he made no such agreement with the defendant.
Held, that this was sufficient evidence to open the judgment and submit to a jury to decide
whether plaintiff acquiesced in the statement of defendant to the sureties. Id.

16. The evidence of an accomplice or particeps criminis is within the lines of competent
proof, but is looked upon with suspicion, and requires corroboration. In Re Gates, 422.

17. The widow of a decedent is a competent witness to prove cruel and barbarous treatment
by her husband. Groves' Estate, 475.

EXECUTION. See AUDitor. ATTACHMENT AND ATTACHMENT EXECUTION. CONTRACT.
EXECUTION. Justice of the PEACE. MANDAMUS. ORPHANS' COURT. SHERiff and Sher-
IFF'S SALES.

1. The rentals of extended property should not be first applied to payment of a mortgage
which was not yet payable, when the ven. ex, was issued. Weil & Co. v. Morgan, 8.
EXECUTORS AND ADMINISTRATORS. See DECEDENTS' ESTATES. LEGACIES.

I. Where minors are residuary legatees, letters of administration should be granted to the
nominee of their guardian. Gunton's Estate, 34.

EXEMPTION.

1. A defendant is entitled to the benefit of the $300 exemption law on an attachment execu-
tion, but he must make his demand within a reasonable time, and not later than the date at which
the writ is returnable. Brown v. Thomas, 146.

2. Where there are two executions in the hands of the sheriff, and also an attachment, the
defendant, having waived the benefit of the three hundred dollar exemption in one of the execu-
tions, cannot set up his claim to the benefit thereof as to the attachment. Wiseman et al.
Appeal, 283.

EXEMPTION. (Continued.)

3. In order to secure the benefits accruing under the acts of April 26, 1850, and April 14, 1851, allowing $300 exemption to the widow of a decedent, the claimant must reside within the limits of this state. Groves' Estate, 475.

4. To secure the beneficial operation of these acts claimants must make their demands within a reasonable time. After the full expenses of administration have been incurred, it is too late. Id.

FEES. See ARBITRATORS. CENSUS. CORONER. COUNTY Officers.

I. The act of assembly of 12th June, 1878, which ascertained and appointed the fees to be received by the various county officers of the commonwealth, was a virtual repeal of the special act of 9th April, 1873, applicable to Luzerne county: there being a general repealing clause in the later act, and the two acts being entirely inconsistant. O'Malley v. The County of Lu

1 Service of summons upon foreign insurance company must be made on the duly designated agent, if the company has one. Fidelity Casualty Company v. Ketrick et ux., 225.

FOREIGN JUDGMENT.

1. Conclusiveness of the judgments of a sister state considered. Tuggle v. Leath et ux., 234. See ATTORNEY and Client. CONTRACT. LANDLORD AND TENANT.

FRAUD.

I.

Whether a contract is obtained by fraud upon one of the parties is purely a question of fact. Staub v. Wolfe, 70.

FRAUDULENT ASSIGNMENT. See ATTACHMENT AND ATTACHMENT EXECUTION.
FREEHOLDER. See ELECTION DISTRICTS. PLEADING AND PRACTICE.

GARNISHEE. See ATTACHMENT AND ATTACHMENT EXECUTION.

GIFT. See MARRIED WOMEN.

1. A, in contemplation of leaving home, purchased an accident insurance ticket, which, by its terms, was non-transferable under pain of forfeiture. Before leaving home, he laid the ticket on the table, in front of his wife, and said to her that "she should take it, and take care of it, and if he got killed before he got back, she would be $3000 'the amount of the policy) better off." Held, that these facts were insufficient to establish a gift of the ticket to A's wife as against his creditors; that in order to establish such a gift, it was necessary to prove that A intended to part with both the possession and property of the ticket. Williams' et al Appeals, 1552. For opinion of the court below, see 12 Luz. Leg. Reg. 394, 2 Kulp, 508. Id.

GRAND JURY. See BRIDGES.

GUARDIAN AND WARD.

1. Bills contracted by a guardian for necessaries for his ward, but not paid by him, cannot be allowed as credits in his account with the ward after he becomes of age. Myers' Estate, 411. 2. Incompetency or carelessness in the management of an estate by a guardian whereby litigation ensues between him and his ward, will be ground for a reduction of his compensation and the imposition of costs. Id.

3. Nothing will be allowed a guardian for past support after the ward arrives at fourteen years of age, unless he be sent to school or a trade, or other special circumstances warrant it. Tubbs' Estate, 418.

4. Allowance for past support may be made under proper circumstances, but a previous order should be obtained where any considerable sum is being expended. Id.

5. Where a child lives with its near relatives as a member of the family there is no implied promise that anything is to be paid for labor done, unless some sort of a previous contract be shown. Id.

HABEAS CORPUS.

I. Where a sentence and commitment on a conviction for seduction fail to show that the defendant was sentenced to pay the costs, he can not be held on that commitment after the expiration of his term and payment of the fine. In re Hadfield, 135.

2. In a contest between relatives for the custody of infants, where they will not in any event be under the personal care and guardianship of a parent, the question is one of discretion, and in exercising that discretion the judge will chiefly consider the welfare of the infants. Commonwealth ex rel. v. Reilley et ux., 342.

HUSBAND AND WIFE. See CONFLICT OF LAWS. DIVORCE. MARRIED WOMEN.

1. A husband has a right to appear in any judicial proceeding to defend his wife's interests. McMonegal, Assignee, v. Featherston, 507.

INCOME. See WILLS.

INFANT. See HABEAS CORPUS.

INJUNCTION. See COMMON SCHOOLS. LANDLORD AND TENANT.

1. Generally, preliminary injunction will not be awarded in a doubtful case. McKean et al. v. Brown et al., 266.

2. An injunction at the suit of the landlord whose tenant has accepted a lease from another, will not lie to restrain the latter from proceeding on the lease to judgment. Lowenstein v. Keller, 361.

3. It seems, however, that an injunction will lie to prevent such judgment from being used to put the rightful owner out of possession, and thus compelling him to bring ejectment to regain the same, especially if it is clearly proven that the tenant was induced by fraud to accept the lease proceeded upon. Id.

4. The remedy by injunction is not granted, of course, in every case of an infringement of a riparian right, but only to prevent irreparable mischief, or an injury such as could not be compensated in a suit at law. Wilkes-Barre Water Co. v. Lehigh Coal and Navigation Co., 389.

5. Plaintiff was the lessee of a suite of rooms on the third floor, and defendant was the lessee of a suite of rooms on the second floor, of a certain building. There was a single front door, hall, and stairway common to both suites of rooms. Defendant claimed and exercised the right to keep said front door locked, thus compelling the plaintiff and members of his family to unlock it when they wished to enter or admit visitors. Plaintiff prayed for an injunction. Held, that the parties had a common right of way as to front door, hall, and stairs, which, however, each was bound to exercise reasonably; that keeping said door locked at all hours was undoubtedly a serious inconvenience and injury to the plaintiff, and, therefore, an injunction should be granted to restrain the defendant from keeping said door locked, except between the hours of 8:30 P, M. and 6:30 A. M. Kleeman v. Kemmerer, et ux., 481.

INSOLVENT. See ASSIGNMENT.

I. A defendant sentenced to pay a fine and costs cannot apply for a discharge under the insolvent laws until after he has been in actual confinement for three months. But if the fine is under fifteen dollars, he may be discharged from confinement after an imprisonment of thirty days. In Re Insolvency of Sullivan et al., 6.

2. No discharge can be made under the act of 1883 unless the defendant has served an imprisonment of thirty days where he is confined for costs and fine under fifteen dollars, and three months where the fine is over fifteen dollars. Commonwealth v. Cole, 98.

3. A prisoner sentenced to fine and imprisonment cannot make his application for a discharge under the insolvent laws immediately after his term of imprisonment is over. In re Huntsinger, 142.

4. A person arrested under a capias ad satisfaciendum, and applying for a discharge under the insolvent laws, is not entitled to such discharge unless he has undergone an actual confinement of at least sixty days. The fact that such party has been convicted on a criminal charge for the same offense as that upon which the judgment on which the capias has issued was founded, and has been imprisoned under sentence in such case for a less term than sixty days, does not entitle him to a discharge. Scranton's Appeal, 328.

1. What is an island in the contemplation of the Pennsylvania statutes, and the method of acquiring title thereto. Winchester et al. v. Pennsylvania Coal Company et al., 254.

2. River warrants laid, by authority of law, upon the bed of the river, should stop at low water mark around the shore of an island, instead of running through or over it. Id.

ISLANDS. (Continued.)

3. The doctrine of accretion does not apply to a case like this. The question here is, what
was the condition, location, and size of this island at the time the plaintiffs' title attached? It is
that condition, and not the island as affected by accretions since, which fixes the bed of the
river for the purposes of this case. Id.

JUDGMENT.

CONTRACT. COURT.

MANDAMUS

REPLEVIN AND REPLEVIN BOND. SHERIFF AND

See BUILDING AND LOAN ASSOCIATION.
EXECUTION. PRACTICE AND PLEADING.
SHERIFF'S SALE. USURY.

I. On an application to open a judgment the burden of proof is on the defendant, and after
very long delay on his part, during which witnesses are quite likely to have forgotten the details
of the transaction, he is in equity required to do something more than to cast doubt on the plain-
tiff's case. Ansley v. Arnt, 152.

2.

A judgment may be opened as to a part, and the rule discharged as to the residue. Id.
3. Monroe v. Monroe, 12 Nor. 520, followed. Id.

4. On a rule to open a judgment, unliquididated damages arising from a contract not a part
of the judgment in controversy cannot be introduced to reduce the amount of the judgment.
Caffrey, assigned, v. Carle, 13.

5. Representations, when to be regarded as no more than the expression of an opinion. Id.
6. An assignee for value of a judgment is not affected by subsequent proceedings, to which
he is not a party, attaching the debt as that of his assignor. Rinehimer, assigned, v. Dunn

et al., 16.

7. The defendant cannot offset the judgment thus obtained against him in the attachment
against the assignee of the judgment debt attempted to be attached, without proof that the
assignment was fraudulent, or that he did not have notice of it. Neither will these facts be
ground for opening the judgment. Id.

8. The court has power to order the satisfaction of a judgment only when fully satisfied
that it has been paid. Morgan v. Klitsch, Executor, 15.

9. Outstanding title under which no claim has ever been made, is nɔ ground for opening
judgment for purchase money, there being no evidence of fraud or surprise. In such case, the
defendant must resort to his action on the covenants in his deed. Everitt, Executor, v. Cox, 7.

10. The court will not open a judgment by confession where the defendant inter alia waives
"all bankrupt laws of the United States, which are now in force, or that may hereafter
be in force," for the purpose of allowing the defendant to plead his discharge in bankruptcy as
a defense to the judgment. Merchants' and Mechanics' Bank v. May, 183.

11. A judgment confessed is conclusive and cannot be attacked collaterally. Rice and
Brother v. Smith, 193.

12. The court will not strike off judgment entered on the transcript of a justice of the peace
for matters not appearing on the face of the transcript. Seybert v. Owens, 486.

13. Judgment was entered on a transcript, which the defendant moved to strike off upon the
ground that an appeal had been taken. The appeal on its face was invalid. Motion to strike
off judgment was refused. Id.

JUSTICE OF THE PEACE. See CERTIORARI. ERRORS AND APPEALS. POOR. WARRANT OF
ARREST.

I. Where exception is taken to the bail entered for an appeal from the judgment of a
justice of the peace, before the appeal has been actually entered in the Common Pleas; the
proper practice is for the justice to grant a rule on the appellant, to justify, or enter new bail.
Morgan v. Trescott, 25.

2. The act of April 20, 1876, P. L. 43, relating to suits for wages, does not repeal the act of
March 2, 1868, P. L. 257, requiring the payment of accrued costs in appeals from the jugments
of justices of the peace. Gwyllyn v. Plymouth Coal Co., 100.

3. In Luzerne county, under act of 1868, supra, on appeal from the judgment of a justice,
the accrued costs must be paid. Id.

4. An appeal in a wages case will be stricken off where the affidavit required was not filed,
the appellant being duly notified by the magistrate that it was necessary. Kingeter v. Strit-
zinger, 147.

5. The transcript showed an alderman's judgment obtained January 13, 1872; an execution
issued December 13, 1874, and a return of nulla bona. The transcript was entered March 8,
1882, whereupon the present rule was taken. Wisler v. Carrigan, 154.

JUSTICE OF THE PEACE. (Continued.)

6. It has been held that the court will presume that a justice's judgment nineteen years old
has been paid. Diamond v. Tobias, 2 Jones, 313. The court has no power to strike off a tran-
script of a justice's judgment. Id.

7. An action arising out of a contract for the sale of land, and in which the title is necesarily
involved, is not within the jurisdiction of a justice of the peace. Creveling et al. v. Kindig,217.

9. An action based on the defendant's failure or refusal to perform his contract, and not on
negligence in the performance of a duty implied by that contract, is within the jurisdiction of a
justice of the peace. Jenkins v. Jenkins, 233.

10. A justice of one county may issue an execution upon a certified transcript of a judgment
on the docket of a justice of another county, without a previous issue of execution by the latter
justice. Filan v. Hull, 518.

11. It is not error to issue a scire facias on the certified transcript before issuing execu-
tion. Id.

12. Under the act of assembly of March 22, 1877, a justice of the peace is authorized to hold
a case under consideration, and defer entering judgment, for ten days after the evidence has all
been heard; and this without special notice to the parties interested. Luke v. Schleger, 505.

13. The defendant (appellant) should be permitted, nunc pro tunc, to file the affidavit re-
quired by the wages act where the transcript discloses any uncertainty as to the plaintiff's
claim being within them. Reagan v. Stetler & Company, 504.

14. Where a justice of the peace holds an inquest, it should appear by the return that he
had jurisdiction by reason of absence or inability of the coroner, or that his office was more than
ten miles distant from where the death occurred. In Re Coroner's Inquests, 451.

LANDLORD AND TENANT. See INJUNCTION.

I. It was provided in the farming lease of plaintiff to defendant that all the hay, straw,
and corn stalks should be "fed and left on the place." On the hearing of the motion for injunc-
tion, defendant showed that the hay and straw on the premises were not equal in quantity to
what he took there when he took possession: also, that the same had been sold on execution
with the plaintiff's knowledge and without objection. Held, that a preliminary injunction
should not be allowed. Barnes et ux. v. Hess, 56.

2. The act of 1863 provides a complete system for determining controversies between land-
lord and tenant. Lowenstein v. Keller, 361.

3. It is competent to show in defense to proceedings to recover possession, that the defend-
ant, being in possession under another landlord, was induced by fraud and misrepresentation to
accept the lease upon which the proceedings are based. Id.

LEGACIES.

1. Where, after giving general pecuniary legacies, the testator blends his real and personal
estate in a residuary gift, a charge of the legacies on the real estate is implied. Moore v.
Habel, 310.

2. The primary fund to pay legacies, whether charged on land or not, is the personal estate,
unless special provision is made to the contrary. Id.

3. A legacy which has been due and unclaimed and without recognition for twenty years is
presumed, prima facie, to have been paid. Id.

4. After the lapse of twenty-three years the mere allegation that there is not now any per-
sonal estate of the testator out of which the legacies can be collected, is not sufficiently explicit
to warrant a resort to the land. Id.

5. The real estate charged with the payment of legacies is liable on a deficiency of assets,
but not for misapplication, waste, or insolvency of the executor. Id.

LIBEL. See CRIMINAL LAW. INSOLVENT.

LICENSE. See CRIMINAL LAW.

I. The courts have power to revoke a liquor license, upon cause shown. In re License of
C. S. Gabel, 204.

2. Discretion of the court considered. Id.

3. Maintaining a theatre having communication with the hotel bar-room in contravention
of the act of July 9, 1881, is cause for revoking the hotel license. Id.

4.

Where the business is being conducted by the person licensed, unlawfully, and in such
a way as to make it unlawful for the court to grant him a license, it is the duty of the court, on
the facts being shown, to revoke the license already granted. Id.