law to be found for inserting the proposition in the warrants. If the proviso is cut out of said section 4, then no provision of law remains for inserting this proposition in the warrants for elective meetings"-whereupon he argues: "The proviso is inseverable from the main section, for the reason that it carried within its terms the method of notifying the electors of the vote upon the question. Section 22, c. 11, Gen. Laws 1896, amended by section 2, c. 1229, p. 167, Pub. Laws 190405, provides for placing this question upon the ballots, but no positive law appears anywhere for notifying the electors of the vote to be taken except in this expunged proviso, where the clerk is directed to insert it in the warrant calling the meeting. Without such notice, how can the question legally come before the electors, and without the proviso, how can it legally be inserted in the warrant? If not legally notified, why should a portion of the electors responding to notice for other purposes decide the question? We submit that they cannot." The argument is not convincing. Gen. Laws R. I. 1896, c. 37, 8, provides: "The notice to the electors to meet in a town meeting prescribed by law shall be given by the town clerk issuing his warrant, directed to the town sergeant or one of the constables of such town, requiring him to post, at least seven days before the day appointed for such meeting, written notifications in three or more public places in the town, of the time when and place where said meeting is to be holden and of the business required by law to be transacted therein." This provision has been in force in this state in substantially the same terms since the General Statutes of 1872 (see Chapter 32, § 8), beyond which we have not deemed it necessary to examine. Under our statute of construction, the words "town clerk" include city clerk. See Gen. Laws 1896, c. 26, § 8. Even if there was no statute directing that notice should be given, we do not think such omission would be fatal. The Legislature having directed a vote on the question to be taken "at each election of general officers," it becomes the duty of town and city clerks to give notice thereof in the warrants calling the meetings for that purpose. The motion for reargument is denied. GREEN v. LOCKWOOD, Town Clerk. (Supreme Court of Rhode Island. Oct. 23, 1908.) Petition by W. T. Green for mandamus to James T. Lockwood. Writ denied. This is a petition praying for a writ of mandamus to compel respondent, town clerk of town of Warwick, to insert in the warrant to be issued calling town or district meetings a proposition providing for the taking of a vote upon the granting of licenses for the sale of intoxicating liquors in the form as provided by statute, "Will this town grant licenses for the sale with the Secretary of State as required by the statute. The petitioner is a resident in and a duly qualified elector of the town of Warwick and a signer of the petition to the town clerk requesting the town clerk to insert a proposition in the warrant aforesaid calling town or district meetings, providing for taking a vote upon the question of granting licenses. Gen. Laws R. I. 1896, c. 102, § 4. Argued before DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ. Littlefield & Barrows, for petitioner. Frederick A. Jones, for respondent. PER CURIAM. In accordance with the rescript filed this day in Ruhland v. Waterman, 71 Atl. 1, the writ of mandamus in this case is denied. VOIGT v. FULLERTON, City Clerk (Supreme Court of Rhode Island. Oct. 23, 1908.) Petitions for certiorari by Ernest Voigt against Frank N. Fullerton, city clerk; by Jeremiah J. Sullivan against William E. Smyth, town clerk, and others; by John H. Branaghan against John W. Rowe, city clerk, and others; by John F. Donahue against William S. Preston, city clerk, and others; and by Frank Whitford against George B. Parker, town clerk, and others. Writs granted. Argued before DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ. Frank F. Nolan, Comstock & Canning, and Patrick P. Curran, for petitioner Voigt. Edward D. Bassett, John W. Hogan, Arthur P. Sumner, and Philip S. Knauer, for other petitioners. William B. Greenough, Atty. Gen., for Secretary of State. Clark Burdick, for respondent Fullerton. Harmon S. Babcock, for respondent Smyth. Edward W. Blodgett and James L. Jenks, for respondents Rowe and others. Erwin J. France, for respondent Preston. PER CURIAM. In accordance with the rescript filed this day in Ruhland v. Waterman, 71 Atl. 1, the writ of certiorari will be granted. MCELROY v. CLARKE, City Clerk, et al. COUTU et al. v. CRAWFORD, City Clerk, et al. WILLIAMS V. POTTER, Town Clerk, et al. (Supreme Court of Rhode Island. Oct. 24, 1908.) Petitions for certiorari, by Joseph H. McElroy, against William E. Clarke, city clerk, and others; by Charles Coutu and others against C. Fred Crawford, city clerk, and others; and by Alfred H. Williams against Henry H. Potter, town clerk, and others. Writs granted. Argued before BLODGETT, JOHNSON, DUBOIS, and PARKHURST, JJ. Edward D. Bassett, John W. Hogan, Arthur P. Sumner, and Philip S. Knauer, for petitioners. William B. Greenough, Atty. Gen., for Secretary of State. Albert A. Baker and Henry C. Cram, for respondent Clarke. Butman, for respondent Crawford. Richardson, for respondent Potter. John N. Willis B. PER CURIAM. After a careful examination of the authorities submitted to us in the briefs confirmed in our opinion expressed in our rescript in the case of Ruhland v. Waterman et al., 71 Atl. 1. Writs of certiorari will issue accordingly. VESTER v. RHODE ISLAND CO. (Supreme Court of Rhode Island. Nov. 23, 1908.) NEW TRIAL (§ 104*)-NEWLY DISCOVERED EV IDENCE. Where affidavits of newly discovered evidence urged as a basis for a new trial contributed rather to the volume of testimony than to the weight of the evidence and the principal affiant gave no convincing reason for the change between her affidavit and her testimony, the showing was insufficient. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 218-220; Dec. Dig. § 104.*] Action by Julia A. Vester against the Rhode Island Company. On defendant's application to file a motion for a new trial for newly discovered evidence. Denied. Application dismissed. See, also, 69 Atl. 606. William H. Sullivan and Waterman, Curran & Hunt (Lewis A. Waterman, of counsel), for plaintiff. Henry W. Hayes and Joseph C. Sweeney, for defendant. PER CURIAM. The affidavits of newly discovered evidence, even when stripped of trivialities, impertinence, scandal, and hearsay, contribute rather to the volume of testimony than add to the weight of evidence. The affidavit of the principal affiant discloses a newly discovered state of mind towards the plaintiff completely at variance with her previous affidavit of the plaintiff's perfect health given more than a year before, and her later affidavit, attempting to explain her former affidavit favorable to the plaintiff, is more ingenious than convincing. Furthermore counter affidavits have been filed in behalf of the plaintiff. We do not think that any useful purpose will be served by protracting this litigation upon such testimony, or that justice requires a revision of the case upon this ground. The defendant's petition to file a motion for a new trial in the superior court on the ground of newly discovered evidence is therefore denied and dismissed. VESTER v. RHODE ISLAND CO. (Supreme Court of Rhode Island. Nov. 23, 1908.) Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by Julia A. Vester against the Rhode Island Company. Verdict for plaintiff, and defendant brings exceptions. Overruled. See, also, 67 Atl. 444, 69 Atl. 606. William H. Sullivan and Waterman, Curran & Hunt (Lewis A. Waterman, of counsel), for plaintiff. Henry W. Hayes, and Joseph C. Sweeney, for defendant. PER CURIAM. A thorough examination and consideration of the transcript of the testimony and charge of the court discloses no error upon the part of either judge or jury. The verdict is sustained by the evidence, and the damages assessed are supstantial but not excessive. The charge of the court is admirable in its conciseness and clearness, while the requests to charge and for special findings that were disallowed were severally either unnecessary or inappropriate. The defendant's exceptions are overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict. (222 Pa. 240) HANHAUSER v. PENNSYLVANIA & N. E. R. CO. (Supreme Court of Pennsylvania. Oct. 5, 1908.) 1. APPEAL AND ERROR (§ 373*)-BOND-TIME OF FILING. After an appeal had been entered, and a writ of certiorari filed, within six months from the judgment and it appeared that no execution had been issued or distribution ordered when the appeal was perfected the fact that a bond was not entered until six months thereafter is not ground for quashing the appeal. Held that under Act May 19, 1897 (P. L. 67), regulating practice on appeal (sections 4 and 15), the bond had not been entered until after the six months was no ground for quashing the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2001; Dec. Dig. § 373.*] 2. APPEAL AND ERROR (§_657*)-CorrECTING RECORD REMITTING TO LOWER COURT. Where several grounds of demurrer to a petition to open a judgment have been assigned, and the court below sustains the demurrer without giving any reason therefor, the Supreme Court will remit the record to the court below to state its reasons. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2832; Dec. Dig. § 657.*] Appeal from Court of Common Pleas, Philadelphia County. Action by George Hanhauser, administrator of James Clarke, deceased, against the Pennsylvania & New England Railroad Company. From an order discharging rule to open judgment, defendant appeals. Record remitted. The appellee moved to quash the appeal for the following reasons: "(1) Because the discharge of the rule taken to open judgment was entered by the court below on July 3, 1907, and the certiorari from the Supreme Court was not brought into the prothonotary's office until December 18, 1907, and the appeal bond not filed until February 28, 1908. (2) Because, by the provisions of the act of May 19, 1897 (P. L. 67), entitled 'An act regulating the practice, bail, costs and fees on appeals to the Supreme Court and superior court,' it is provided, in section 15, as follows: 'Sec. 15. Appeals may be taken from any sentence, order, judgment or decree without security in any proceeding, where by law the same is or may be allowed, but in such cases the appeal shall not operate as a supersedeas, except when a county, township or municipal corporation, or any one suing or defending in a representative capacity, is the appellant; or when the appeal is from a judgment entered in favor of the commonwealth upon an account settled by the Auditor General and State Treasurer, and a bond with approved security has already been given, as required by law, or in any other case where a bond with approved security has already been entered in the court from which the appeal is taken, conditioned as herein provided for such appeal; in which cases the appeal shall operate as a supersedeas without security, and except also, that in all other cases where a corporation, other than a county, township or municipal corporation, appeals on its own behalf, such appeal shall be quashed, unless bail is given to operate as a supersedeas as by this act required.' And by section 4 it is provided as follows: 'Sec. 4. No appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from, nor shall an appeal supersede an execution issued or distribution ordered, unless taken and perfected, and bail entered in the manner herein prescribed within three weeks from such entry.' And the said corporation, appellant, has not entered bond within 21 days from the entry of the order, judgment, or decree of the court below, in accordance with the provisions of the act of Assembly so cited." Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Alex. Simpson, Jr., Wm. Y. C. Anderson, and Wm. Jay Turner, for appellant. Chester N. Farr, Jr., William C. Mayne, and William A. Glasgow, Jr., for appellee. BROWN, J. The judgment which the court below refused to open was against five terre tenants, to whose rights, franchises, property, and assets the appellant succeeded. The order discharging the rule to open the judgment was made July 3, 1907, and the certiorari sur this appeal was filed in the court below December 18, 1907, within six calendar months from the discharge of the rule. After six months had expired from the refusal to open the judgment, the appellant filed its bond on this appeal. We cannot tell from the printed docket entries when it was approved by the court below, and counsel do not agree as to the date. In the motion to quash it is given as February 28, 1908, while in the answer thereto counsel for appellant fix it as March 2, 1908. But without regard to the date of the filing and approval of the bond, it was given on an appeal taken within time and approved. No time is fixed, by the act of 1897, within which such a bond must be given and approved to operate as a supersedeas, except that it must be given within three weeks of the entry of a judgment or decree to supersede "an execution issued or distribution ordered." The question on this motion to quash is not whether the approval of the bond superseded any process in the hands of the sheriff at the time it was approved, but whether it was given to operate as a supersedeas. It is on file for the protection of the appellee in the form prescribed by the statute, and it manifestly was approved, that it might operate as a supersedeas. The motion to quash is therefore overruled. The petition of the appellant to have the judgment opened was in the nature of a bill in equity, and was an appeal to the chancery power of the court. O'Hara v. Baum, 82 Pa. 416; Humphrey v. Tozier, 154 Pa. 410, 26 Atl. 542; Hall v. West Chester Publishing Company, 180 Pa. 561, 37 Atl. 106; Lawrence v. Smith, 215 Pa. 534, 64 Atl. 776. The appellee demurred to it on eight grounds. Whether the court below considered them all good, or some good and others bad, we do not know. All that we have from it is "Demurrer to petition sustained. Rule to open judgment discharged." The demurrer was filed on January 23, 1907, and there was ample time for an intelligent disposition of it. To this we are entitled. We sit as a court of review of what has been done by a court below, and in equity proceedings our review and correction are not confined to the decree alone, but extend to the induction or reasoning of the chancellor. Sproull's Appeal, 71 Pa. 137. In this case several important questions were raised by the demurIt was the plain duty of the court below to pass upon them, or at least to state the ground or grounds upon which the demurrer was sustained, instead of sending the record to us for our consideration and disposition, in the first instance, of the questions raised by the pleadings. This court is created for no such purpose, and very few judges in the courts below seem to think otherwise. return the record to the common pleas that there may be made part of it the reasons for dismissing appellant's petition. When so sent back to us, this appeal will be disposed of. Record remitted. rer. We (222 Pa. 244) HANHAUSER v. PENNSYLVANIA & N. E. On a scire facias, under Act April 4, 1862 (P. L. 235), supplementing resolution of January 21, 1843 (P. L. 367), an affidavit of defense of a party, sought to be brought in as a terre tenant, averring that such party "has never held, and does not now hold, any property, real or personal, which it derived either directly or indirectly from said defendant," is sufficient to prevent judgment. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 870.*] Appeal from Court of Common Pleas, Philadelphia County. Action by George Hanhauser, administrator of James Clarke, deceased, against the Pennsylvania & New England Railroad Company. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Reversed. Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Alex. Simpson, Jr., Wm. Y. C. Anderson, and Wm. Jay Turner, for appellant. Chester N. Farr, Jr., William C. Mayne, and William A. Glasgow, Jr., for appellee. BROWN, J. On March 22, 1887, James Clarke, deceased, recovered judgment in the court below against the Pennsylvania & New England Railroad Company for $34,084. It is claimed by the appellee, his administrator, that this judgment comes within the protection of the resolution of January 21, 1843 (P. L. 367), and the provisions of the supplement thereto of April 4, 1862 (P. L. 235). There is some force in the position of appellant that, as the record fails to show that the judgment is within the protection of the resolution, it is not within the provisions of the supplement; but it is not necessary for us to now pass upon this question, for a single averment of the appellant, in its affidavit of defense, clearly stands in the way of appellee's right to a summary judgment against it as a terre tenant. After the Clarke judgment had been obtained, various writs of scire facias were issued on it, to bring in other railroad companies as terre tenants, and against them judgments were entered. On November 24, 1905, this sci. fa. was issued, with notice to the appellant as a terre tenant. In its affidavit of defense, deemed insufficient by the court below for no reason given, the laconic order, if intended for an opinion, being simply, "Rule absolute for judgment for want of a sufficient affidavit of defense," the first averment is: "Said Lehigh & New England Railroad Company has never held, and does not now hold any property, real or personal, which it derived, either directly or indirectly, from said defendant." A reason given in the supplemental affidavit of defense why judgment should not be entered is: "Because at the time of the issuance of said scire facias, or at any time before or since, the Lehigh & New England Railroad Company did not own or hold, or claim to own or hold, and had not in its possession, any real or personal estate that was ever owned or held by the Pennsylvania & New England Company, the above-named defendant, or upon which the judgment recited in the said scire facias was a lien." The resolution of 1843 provides: "It shall not be lawful for any company incorporated by the laws of this commonwealth, and empowered to construct, make and manage any railroad, canal or other public internal improvement, while the debts and liabilities, or any part thereof incurred by the said company to contractors, laborers and workmen employed in the construction or repair of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer, of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as aforesaid." The supplement of 1862 is: "Whenever any incorporated company, subject to the provisions of the above resolution, shall divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may be lawful for any contractor, laborer or workman employed in the construction or repair of the improvements of said company, having obtained judgment against the said company, to issue a scire facias upon said judgment with notice to any person, or to any incorporated company claiming to hold or own said real or personal estate, to be served in the same manner as a summons upon the defendant, if it can be found in the county, and upon the person or persons, or incorporated company claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of oue nihil and service as aforesaid, on the person or persons, or company claiming to hold or own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre tenants." If this were a proceeding to continue the lien of an ordinary judgment against a purchaser from the defendant in it as terre tenant, a plea, such as this affidavit of defense must be regarded to be, would be good. Colborn v. Trimpey, 36 Pa. 463; Colwell v. Easley, 83 Pa. 31; Hulett v. Mutual Life Insurance Co., 114 Pa. 142, 6 Atl. 554. In Colwell v. Easley, Colwell, the defendant below, had been summoned as a terre tenant. His plea was, "The judgment sought to be revived by scire facias is no lien on the lands of J. A. Colwell, and never was." In reversing the court below for striking this off, and in holding that the plea was good, we said, after reviewing the authorities: "We are warranted in saying that a plea, by one sum moned as a terre tenant, that his land was not, and never had been, bound by the judg- | ment, would be good. * * * From the reasoning thus borrowed from our books we are led to conclude: (1) That when one is brought into court who has had no connection with the debtor's title he should be discharged, either by nonsuit or a verdict in his favor, for he is not a terre tenant. He cannot be bound by the judgment, and he ought not to have been summoned. (2) If he has had connection with the debtor's title, though the lien of the judgment may not have attached at the time of his purchase by reason of its previous expiration, he may nevertheless be warned as a terre tenant, and may defend under the plea that the judgment is not, and never was, a lien upon his land. It follows that the court erred in striking out the second plea of the defendant." But this is not the ordinary proceeding by scire facias against a terre tenant. The writ is issued under the act of 1862, which provides who, and who only, may be summoned by it, namely, any person or any incorporated company claiming to hold or own the real or personal estate which belonged to the original defendant, and when such person or incorporated company is summoned into court, "the case proceeds as in other cases of scire facias on judgment against terre tenants." Instead of claiming to hold or own any real estate that ever belonged to the Pennsylvania & New England Railroad Company, the averment is that the appellant "has never held, and does not now hold, any property, real or personal, which it derived, either directly or indirectly, from said defendant." This is certainly a defense under the act of 1862, and, if made out, the appellee may not have judgment against the appellant, either de terris or de propriis, as to costs. The averment may not be true, and on the trial the appellant may not be able to sustain it, but for the present we must assume it to be true, as there is nothing in the record conclusively showing that it is not. (222 Pa. 220) (Supreme Court of Pennsylvania. June 23, 1908.) RAILROADS (§ 75*)-TRACKS ON CITY STREETS. Where a railroad company is incorporated under Act April 4, 1868 (P. L. 62), and the several supplements thereto, it can lay its tracks longitudinally on the streets of a borough, though the act under which the borough was incorporated provides that the streets of such city shall be common highways forever; they being the property of the state. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 183-185; Dec. Dig. § 75.*] Appeal from Court of Common Pleas, Dauphin County. Bill by the commonwealth, on the relation of the Attorney General, against the Beaver Valley Railroad Company. From a decree dismissing the bill, plaintiff appeals. Affirmed. Clapp, J., of the court below, filed the following opinion: "This proceeding was instituted by the commonwealth of Pennsylvania ex rel. Hampton L. Carson, Attorney General, against the Beaver Valley Railroad Company, to restrain the defendant company from operating and maintaining its railroad longitudinally on Fifth street, in the borough of Beaver, to have the said railroad declared a public nulsance, to require the removal of said construction from Fifth street, and restore the street to the condition it was prior to the entry thereon by the said defendant company and its occupation thereof. From the admissions in the answer and the evidence taken on final hearing, we find the facts to be as follows: "Findings of Facts. "(1) The town of Beaver was laid out in pursuance of two several acts of assembly, approved, respectively, September 28, 1791 (3 Smith's Laws, p. 56), and March 6, 1793 (3 Smith's Laws, p. 90), in which it is, inter alia, provided 'that the Governor shall reserve out of the lots of said town so much land as he shall deem necessary for public uses,' and also 'that the streets, lanes and alleys of the said town and out lots shall be common highways forever,' and was incorporated into a borough by the act of assembly approved March 29, 1802 (3 Smith's Laws, p. 495). "(2) The defendant company was incorporated September 5, 1899, under the act of April 4, 1868 (P. L. 62), entitled, 'An act to authorize the formation and regulation of railroad corporations,' and the several supplements thereto, for the purpose of constructing, maintaining, and operating a railroad between two points in Beaver county, Pa., the eastern terminus being at or near the point where the Beaver and Mercer state road, commonly called the 'Sharon Road,' crosses the Pittsburg & Lake Erie Railroad in Beaver county, Pa., and the western terminus at or near a point on the Ohio river, about 500 feet south of the residence of John Moore, in Borough township, in said county and state. "(3) The municipal authorities of the borough of Beaver by ordinance duly approved September 15, 1899, granted the defendant company the right to enter upon Fifth street, in the borough of Beaver, Pa., and to construct, maintain, and operate its railroad thereon longitudinally, which said ordinance |