tures offered in evidence, was changed, still the main features not unlike the present one, the ownchanges were merely alterations and additions er of a two story frame dwelling, having a width within the meaning of the Act of May 18, 1887, of twenty-two and a depth of sixty feet, the lower P. L. 118. This Act requires notice of the in- part used as a store, and the upper as a dwelling, tention to file a lien to be given the owner or built thereto, along the west side, an addition reputed owner, or his agent, at the time of doing twenty-five by eighty feet, took out all the partiwork or furnishing materials in and about repairs, tions in the second story of the old building, realterations or additions to a building. It is con- moved the roof, and the west wall of the upper ceded that no notice was given. story, spliced the studding in the south, east and The original building, situate in the borough north walls so as to raise this story to the level of Lansdale, was two stories high, with an attic of the corresponding story of the addition, put equivalent to a third story. Each of the three both parts under one roof, and fitted out the floors was divided into five apartments, those on whole upper story as an opera house, and the the second and third floors being bed rooms. It lower part as a store room. It was held that had a front of about forty feet on Main street, these changes, although more extensive and far and, including the kitchen, extended back along reaching in their character and results than those Broad street about fifty-six feet. The owner used shown in the case in hand, did not create a subit as a hotel, and desiring to enlarge it, built a stantially new building. See also Landis's Appeal, three story addition thereto on the west side, the 10 Pa. 379; Murphy's Appeal, 158 Pa. 497. new part fronting about sixty feet on Main street, That the union of the new and old buildings and running back therefrom about forty feet. The has resulted, as the learned auditor says, in "one walls of the addition were of stone to correspond harmonious. whole" stamped "with a new and diswith those of the old building, the porches were tinctive character," is not enough to make the connected so as to form one continuous porch structure a new building in the eye of the law. As along Main street, and the roofs of the two build- the learned auditor adds, by way of explanation, ings properly united. Communication between nevertheless the fact remains, that this effect or the new and the old parts of the compound change of appearnce is the result of an addition structure was had through a door in the cellar, or extension harmonizing with the materials and two doors on the first floor, one on the second, architecture of the original building, and not and one on the third, all cut through the west wall caused by any material change in the old buildof the old building. The only interior changes ing itself. That still remains practically unmade in the latter were on the first floor and con- touched." sisted of the removal of the folding doors be- A modern architect, by adding to an old buildtween two rooms and a slight modification of one ing two or three porches, a gable or two, two or of the stairways. The exterior walls along Main three dormer windows, changing the chimney and Broad street, and the doors, windows, tops, and repainting the whole, can at a comparporches, cornices, etc., therein and thereon were atively small cost so change the appearance of not changed in any way. The cost of the im- the original structure that its owner, if absent provements is not given by the learned auditor, during the progress of the improvement, might except so far as it may be inferred from his find-not recognize it on his return save by the suring that "they were of no mere ordinary charac- roundings; still these things would after all be ter, but in extent were almost if not quite as great merely alterations, additions and repairs. as the original building itself." It may be assum- Cases may occur where the extent, character ed, therefore, that the new and the old parts of and value of the additions are, comparatively the building were about equal in value. During speaking, so costly and great as to make the origthe whole time the addition was being built, the inal building only worth considering as an eleowner occupied and used the original structure ment of the new. Whenever this happens, the as a licensed hotel, entertaining his guests and Courts will not hesitate to apply the rule comcustomers as before. pressed in the maxim, "De minimis lex non cu The above facts, found by the learned auditor rat." The present case is not of that character. and not excepted to, fully vindicate his conclu- It is not necessary to add anything further to sion, that the materials furnisned by the appel- what is contained in the report of the learned lant were for alterations and additions to an ex-auditor and the opinion of the learned Judge of isting building, and that not having given the no- the Court below. tice required by law, the appeliant was not entitled to a lien. In Seifert's Appeal, 158 Pa. 57, a case in its Decree affirmed and appellant directed to pay the costs of the appeal. W. C. S. INDEX OF ALL THE cases reported in THIS VOLUME BY HENRY BUDD, Esq. ACCOMMODATION PAPER. While a married woman is not authorized, under the Act of June 8, 1893, to enter into a new contract as an accommodation endorser, she may continue, by renewal, such endorsement made prior to her marriage. Harrisburg National Bank v. Bradshaw, 138. The maker of an accommodation note cannot set up against the plaintiff, an endorser of the same character, who has paid the note, that the property in the note is in the assignee for the benefit of creditors of the payee, who had endorsed the note before the plaintiff. (Super. Ct.) Van Brunt v. Potter, 262. ACCOUNTING. Where two persons have had various business transactions, of different characters, with each other and have blended them all in one account, it is error for the Orphans' Court, after the death of one of the parties, to separate the different transactions, make a decree on certain items within its jurisdiction, and leave the other items of said account to another tribunal; the matter must be treated as it was by the parties and a decree made upon the whole account by a Court having jurisdiction that will enable it to deal with the whole. Fulton's Estate, 119. Action to recover for death. See DEATH. ACTS OF ASSEMBLY. ACTS OF ASSEMBLY-Continued. 1869, March 17. Attachment, 278. 1869, March 17. Railroad Leases, 217. 1870, February 17. Railroad Leases, 217. 1870, April 1, 1871, May 20. 1873, April 8. 1873, June 6. 1874, April 29. 1874, April 29 1874, May 6. 1874, May 23. 1874, June 2. 1875, March 30. 1876, May 1. 1883, May 22. 1885, May 29. 1885, May 29. 1885, June 1. 1887, May 13. 1887, May 18. 1887. May 23. 1887, May 24. 1887, May 24. 1887, May 24. Decedents' Estates, 193. 1887, May 25. 1832, March 29. 1833, April 8. 1834, April 15. 1836, June 13. 1836, June 16. 1836, June 16. 1844, May 6. 1846, April 14. 1849, April 10. 1851, April 15. 1853, April 18. 1855, April 21. 1855, April 26. 1856, March 22. 1856, April 9. 1860, March 31. 1861, April 23. 1865, March 9. 1865, March 14. 1867, February 2. 1867, March 23. 1868, March 16. Bequests, 411. Execution against Life Estate, 12. Party Wall, 443, 445. Recovery for Death, 221, 519. Recovery for Death, 221, 519. Special Assignment of Judge, 387. Dissolution of Corporations, 185. Railroad Leases, 217. Taxes, 412. Taxes, 412. Private Sale by Order of Court, 176. Poor Law, Error, 165. 1889, May 14. 1891, May 16. 1891, May 16. 1891, May 20. 1891, June 8. 1891, June 9. 1891, June 16. 1893, April 6. 1893, May 31. 1893. June 6. 1893, June 8. 1893, June 12. 1895, May 22. 1895, June 24. 1895, June 24. 1895, June 25. Allegheny City-Highways, 169. Cities of Third Class, 102, 108. 110. Change of Venue, 387. Boroughs, 154. Eminent Domain, 213. Liquor Law, 93, 181. Stenographer's Notes, 402. Beneficial Societies, 264. Judgment for Amount Admitted, 271. School Law, 427, 430. Married Women, 138, 198, 200, 354. Highways, 169. Limitation of Actions, 145. Superior Court, 12. Theatrical License, 438, 559. Taking Testimony out of State, 438. ACT OF CONGRESS. 1888, August 13. Jurisdiction of Circuit Court, 255. ADMINISTRATOR. Poverty and ill health of a widow will not, of themselves, make her ineligible as ADMINISTRATOR-Continued. administratrix of her husband's estate, but where she has lived apart from her husband, has been under the influence of liquor and an inmate, for a time, of a reformatory institution, there is sufficient reason for denying her administration. (O. C.) Welsh's Estate, 167. Within the class entitled to administration, the exercise of the register's discretion, in making appointments, can only be impeached by showing personal disqualifica tion in his appointee. Id. An administrator has no power over land by virtue of his office; land is made assets only when it becomes necessary for the payment of debts and, then, the administrator must first obtain an order from the Orphans' Court, Reese v. Wildman, 193. The existence of debts is a jurisdictional fact; if there are no debts an administrator cannot sell land, and the Orphans' Court cannot give him power to sell. Id. ADVANCEMENT. Advancements do not bear interest, except where there is an intent clearly expressed, in the will of the testator, that they shall. Farnum's Estate, I. A testator made advances to his daughter after the execution of his will and, by a codicil, he provided, "that the principal of all sums received from me by my daughter shall be treated or considered as paid or advanced on account of her interest in my estate .... so as to reduce the share of my said daughter in and of said rents, issues, profits, etc., . . . . by an amount equal to the interest at six per cent. of said sum so paid or advanced: held, this was not a direction that the advancements should bear interest, but only that the principal of the advancements should be added to the capital of the estate, so as to reduce the share of the daughter in the income thereof by an amount equal to six per cent. of the sum advanced. Id. AFFIDAVIT OF DEFENCE. In an action on a sheriff's interpleader bond, it is not necessary to file an affidavit of defence. (C. P.) Davis v. Wood, 328. Where a rule for judgment for want of a sufficient affidavit of defence has been argued and leave has been granted to file a supplemental, if it be not filed within a reasonable time, the Court may, without a new rule or further notice to the defendant, finally dispose of the application for judgment. (Super. Ct.) Close v. Hancock, 460. A deduction or set-off, in order to be of any avail in an affidavit of defence, must be stated with precision and exactness as to the amount and no doubt must be left as to its source and character. Id. Where a defendant sets up a breach of an independent contract as a set off, he must, not only attach to the affidavit a copy of the contract, if it be in writing, and allege the breach and the amount of damages, but also specify with precision in what the breach consists. Id. An affidavit of defence may be amended so as to make it correspond with the proof, where the proposed amendment does not contradict, but merely enlarges or makes more definite the statements in the affidavit. Wall v. Royal Society of Good Fellows, 502. AFFIDAVIT OF DEFENCE-Continued. that plaintiff was employed by a company limited, of which deponent was treasurer for a part of the time to recover for services rendered during which the action was brought, without stating by whom plaintiff was employed during the rest of the time, is not equivocal, evasive or insufficient. (Super. Ct.) Ganor v. Hinrichs, 271. The provision of the Act of April 14, 1846, P. L. 328, requiring defendant in an appeal from a justice to file an affidavit of defence, whenever the cause of action is within the affidavit of defence law, is not repealed by the procedure Act of May 25, 1887. (Super. Čt.) Tren ton Rubber Co. v. Small, 281. In an action against an endorser of a note, it is not suf ficient for the defendant, in his affidavit, to say that he has not received notice. He must go further and state such facts as will justify the inference that no notice was given or diligence used. (Super. Ct.) Historical Pub. Co. v. Hartranft, 315. To a statement in an action, by an endorsee against an endorser, alleging that the payment of a note was refused at maturity and notice of non-payment sent to the defendant, attached to which was a notary's certificate that he duly notified the endorser of the demand and refusal, an affidavit alleged that defendant never had received any notice of the protest, that he was a resident of Philadelphia and was well known as a member of the bar: held, that in view of the indefinite averment in the statement the affidavit was sufficient to prevent judg. ment. Id. ALLEGHENY, CITY OF. See ROAD LAW, MUNICIPALITY. In re Petition of Cora E. Fisher, 169. ALLEGHENY COUNTY, RULE OF COURT. See PRACTICE. (Super. Ct.) Brown v. Eccles, 8. ALTERATION. Where an unauthorized alteration of a material matter of record is alleged, the proper practice is to apply to the Court, whose record it is, to correct and restore it to its original condition. (Super. Ct.) Sheip v. Price, 278. Ás between parties and upon error or hearing of any motion in which the question arises collaterally, the date of filing a paper is to be determined by the record; the fact that an alteration and erasure of a material date appears in several of the papers filed, does not put upon the party for whom the same were made, the burden of explaining the same, nor can the burden be put upon him by an ex parte affidavit of the other side that the said alterations were unauthorized? Id. AMENDMENT. Where an amendment is made in the Court below by striking out a party, the record must be considered as amended so as to conform to the new state of the parties. If a more formal amendment be required, it may be made in the appellate court, so as to make the trial on the merits and the record conform, Taylor v. Sattler, 419. Where it is sought by an amendment to introduce a new and substantial cause of defence, application for leave should be made in the Court below, and not in the The defendant, who has undertaken to set out in de appellate court. Commonwealth ex rel. Century Comtail, in his affidavit, his defence, is presumed to have in-pany v. City of Philadelphia, 451. cluded all the facts, and, when these fail to show a de- A fault of pleading, which is amendable, will be refence to the claim set forth in the statement, the defend-garded as amended when necessary to preserve an obviant cannot save himself by a general declaration, at the close of the affidavit, that he has a just and true defence to the whole of plaintiff's claim. (Super. Ct.) Kelly v. Shillingsburg, 269. An affidavit, filed by one of two defendants sued as copartners, which denies that any partnership existed between the two co-defendants and also denies any contract between the plaintiff and the affiant, but sets forth ous right. (Super. Ct.) Bandel v. Erickson, 490. An affidavit of defence may be amended so as to make it correspond with the proof, where the proposed amendment does not contradict, but merely enlarges or makes more definite, the statements in the affidavit. Wall v. Royal Society of Good Fellows, 502. APPEAL. The Act of June 24, 1895, requires bail for costs to be given to perfect an appeal to the Superior APPEAL-Continued. Court. If such bail is not given the appeal may be quashed. (Super. Ct.) Marks v. Baker, 12. The action of a court of equity, refusing an attachment, prayed on the ground of the defendant's failure to comply with a final decree, must proceed upon the basis that the decree has been complied with. Such action, therefore, is not appealable, since the court in which the decree is entered is the best interpreter of the meaning of such decree. The decree itself, as entered and after it is interpreted by the Court, may be appealed from, but not the act of interpretation alone. (Super. Ct.) Fullerton v. Peabody, 41. In order that advantage may be taken of improper remarks of counsel, objection must be made thereto at the trial, and, where no such objection has been taken, the matter will not be considered on appeal. (Super. Ct.) Commonwealth v. Smith, 181. A refusal to withdraw a juror, where no reason for the motion to withdraw appears in the record, cannot be considered on appeal. Smith v. Times Publishing Co., 329. A refusal to grant a non-suit is not the subject of review by the Supreme Court. Wallace v. Jameson, 387. A decree of the Orphans' Court citing an executor to account is not a definitive sentence or decree, but an interlocutory decree from which no appeal lies. (Super. Ct.) Starr's Estate, 462. Úpon an appeal from an order opening a judgment, the appellate court is not called upon to review the whole case in extenso, but to examine and determine whether the discretion of the Common Pleas has been properly exercised. (Super. Ct.) Pfaff v. Thomas, 570. APPORTIONMENT. See MECHANICS' LIENS. (Super. Ct.) West Philadelphia Brick Co. v. Johnson, 509. ARBITRATION. Where a policy of fire insurance contains an agreement to refer the question of the amount of loss to appraisers to be appointed, such agreement is revocable. Yost v. Dwelling House Ins. Co., 432. ASSESSOR. The office of assessor is not one of continuous employment and compensation. Its duties are specified to be performed at specified times, generally within specified limits as to time allowed for their performance, and the assessor can claim no compensa tion for any other service, or for anything done by bim by way of preparing himself for the performance of his duties, or for any time in excess of that allowed by law. (Super. Ct.) Marquette v. County of Berks, 325. An assessor cannot claim compensation for more than sixty days' work in the performance of the duties imposed on him by law, and can claim only for services done after the delivery to him of the warrant of the county commissioners. Id. ASSIGNMENT FOR BENEFIT OF CREDITORS-Continued. Where a creditor has a lien upon the real estate of his debtor, which has been assigned for the benefit of creditors, and, also, upon his personal property by a sheriff's levy, made, at his suit, prior to the assignment for benefit of creditors, if he be partially paid by a sale of the personal property, made after said assignment, he is entitled to a dividend out of the proceeds of the subsequent sale of the real estate by the assignee, only upon the balance of his debt, and not upon the whole of it. (Super. Ct.) Assigned Estate of Wetzler, 514. ASSIGNMENT OF ERROR. The Court will not consider an assignment of error to the admission of evidence when the same is not quoted in the assignment. Wallace v. Jameson, 387. It is not a sufficient compliance with rule 17 of the Superior Court to set forth in an assignment of error a question which has been allowed, without also setting out the answer thereto. (Super. Ct.) Commonwealth v. Smith, 181. ATTACHMENT. The statute giving the right of attachment gives the creditor, in express terms, process for the enforcement of the judgment obtained in it and contemplates the employment of this process, before resorting to any claim which the debtor has against the garnishee. Ordinarily, this process is adequate for the accomplishment of the purpose in issuing the attachment, but if not, and subrogation to the rights of his debtor in a judgment held by the latter against the garnishee, is necessary for his protection, the creditor should apply to the Court, and notify the plaintiff of the application; he cannot, of his own volition, make himself a use plaintift in the judgment and issue execution upon it. Wherry v. Wherry, Administratrix, 395. There is no analogy between quashing a writ of attachment under the Act of March 17, 1869, on an affidavit that the affidavits and bond were not filed on the day the record shows, and granting summary relief in foreign attachment, on an affidavit that the defendant is within jurisdiction, or setting aside a sheriff's sale. In the latter cases no contradiction of the record is involved. (Super. Ct.) Sheip v. Price, 278. The Act of March 17, 1869, provides that in case of a personal service of the attachment on defendant, or if he appear to the action, the Court shall proceed as in case of a summons. It is, therefore, error to quash the writ after service and appearance. Id. It is irregular to make a writ returnable upon the day it issues, and if the affidavit and bond, required to be filed before a writ of attachment issue, are not filed until the return day, the writ will be quashed. Id. A garnishee's answer is not to be construed with the same strictness as an affidavit of defence, and it is not bound to set forth specifically and at length the nature and character of the defence to the attachment, but such ASSIGNMENT FOR BENEFIT OF CRED- facts only as are material to the admission or denial of ITORS. Before an auditor, appointed to make distri-indebtedness to the defendant. McCallum v. Morris, bution of an assigned estate, a simple contract creditor 421. attacked the validity of a judgment confessed by the Judgment cannot be entered against the garnishee, assignor to his wife. The auditor found the judgment unless he expressly or impliedly admit his indebtedness was entered to secure an honest debt. Exceptions to or possession of assets belonging to the judgment debtor. findings of fact were dismissed by the Court, on the Id. ground that the auditor had not power to inquire into the validity of the judgment at the instance of a simple contract creditor: held, (1) the general creditors were the equitable owners of the assigned estate and, therefore, had sufficient standing to attack the validity of the confessed judgment; (2) the auditor's finding that the judgment was an honest debt, being based on sufficient facts, was conclusive. (Super. Ct.) Assigned Estate of Wenger, 310. An attachment served upon a garnishee in another State, attaching a claim due from a Pennsylvania debtor, but not served upon the latter, is no defence to an action brought against the debtor in this State by an assignee of the garnishee. Douglass Furnace Co. v. Oil Well Supply Co., 543. D., a creditor in Illinois, doing business in Pennsylvania, held a claim against O. of Pennsylvania, and, becoming insolvent, in July, 1893, assigned the same in ATTACHMENT-Continued. Ohio to McK., appointed by the Court of that State receiver for C. By the terms of his appointment the receiver had power to continue the business of C. and endorse commercial paper which might come into his hands. In August, 1893, an Ohio bank, having obtained judgment against D., attached in that State McK. as garnishee. In December, 1893, McK., as receiver, assigned the claim against O. to the plaintiff, a citizen of Pennsylvania, who brought suit upon the same. The defence was that the attachment in Ohio was binding on the plaintiff, and that McK. had no power to assign after attachment. It appeared that the attachment was never served upon O.; held, that O., never having been served with the attachment, was not bound by it and a payment to the plaintiff was proper, and would relieve O. from all liability. The further liability of McK. not considered by the court. Id. ATTORNEY-AT-LAW. A letter, written by an attorney engaged in a cause to the judge whose duty it is to decide the same, with intent to threaten and coerce the judge and influence his decision, constitutes a gross violation of professional duty, which the court must no tice by proper proceedings against the offender. In re Cornelius Smith, 361. An attorney or counsellor who is guilty of misconduct in his office has no right to a trial by jury. Upon a charge of professional misconduct he may be dealt with by the court to the extent of disbarment. Id. To impute corrupt or dishonorable action to an attorney in his professional conduct is actionable per se. Wallace v. Jameson, 387. ATTORNEY AND CLIENT. Where an attor ney at-law, who has acted as agent for the investment of a client's funds and their collection when due, for a number of years, receives payment of a debt due the client, satisfies, as attorney of record, a judgment given to secure said debt and embezzles the amount received, and the client, on learning of the embezzlement, takes a deed from the attorney, in settlement of the claim against him, such action on the part of the client is a ratification of the act of the at orney in entering satisfaction. (Super. Ct.) Himes v. Herr, 568. See TRUST. (Super. Ct.) Patrick v. Smith, 4. BANKS AND BANKING. Where money, received by a trust company as trustee, is not kept distinct or invested in any specific way, but is mingled with the general mass of money on deposit, and used in the general banking business, and there is no means of tracing or ascertaining its identity in any form or species of property, the cestui que trust is not entitled to a preference over the general creditors, in a distribu. tion of the funds in the hands of the assignee for benefit of creditors of such trust company. (Super. Ct.) Cobson's Estate, 486. BANK TELLER. The fact that entries are made in a book, showing more money than is found in the drawer of a bank teller, does not render his bondsman liable, if the facts do not disclose an actual loss to the bank, Commonwealth v. Strickler, 261. BENEFICIAL SOCIETIES. A beneficial society provided, by its by laws, that death benefits "shall be paid to such person or persons as the deceased may have designated to receive the same, as appears in the book of the lodge of which he was a member, or, if no designation, to his widow, and, if no widow, to children, and, in default of the foregoing, to his legal representative:" held, (1) a member could designate a creditor to the exclusion of his widow and children; (2) that the Act of April 6, 1893, P. L. 7, confining payment of death benefits to families, heirs, blood relatives, affianced hus BENEFICIAL SOCIETIES—Continued. band or affianced wife of, or to persons dependent upon the deceased member, is prospective only, and has no effect upon a case where a creditor had already been desig. nated under the by-laws, prior to the passage of said act. (Super. Ct.) Wolpert v. Grand Lodge of Knights of Birmingham, 264. Where the policy of a mutual aid society stipulates that no benefits under the policy shall be paid within twenty weeks of its date of issue, and that in case of sickness or death within that period, the company shall return the premiums and cancel the certificate, if the company fail to cancel its liability and refund the premiums paid, upon the sicknes occurring within the period specified, it will be liable, under the policy, for sick benefits for illness occurring after the expiration of the twenty weeks. (Super. Ct.) Baronowski v. Baltimore Mutual Aid Society, 533. See EVIDENCE. Wall v. Royal Society of Good Fellows, 502. BONA FIDE HOLDER. See EQUITY. Morris Stevens, 370. BOND. In an action upon a bond of a bank teller for faithful performance of his duty to recover a discrepancy between the cash found in the drawer and that appearing on the depositor's ledger, the burden of proof as to actual loss is on the plaintiff. Commonwealth v. Strickler, 261. BOOK ENTRIES. Book entries, to be evidence of indebtedness to the person making them, must be entries made in the regular course of business. A book containing entries against one person only is not admissi ble. Fulton's Estate, 119. BOROUGH. Under the Act of June 8, 1891, an incorporated borough has the right to widen and deepen water courses, running through and within the same, and to erect dykes and embankments along the same. It may, therefore, prevent, by proper proceedings, the erection of any wall or other obstruction which will interfere with the exercise by the borough of its rights. Commonwealth v. Stevens, 375. BURDEN OF PROOF. Where the contention that presumption of payment arises from the lapse of time ignores the decree of the court and the findings of an auditor, the latter are, prima facie, at least, sufficient to rebut the presumption and to cast upon the person alleging the payment the burden of showing it. Smith's Estate, 88. In an action upon a bɔnd of a bank teller, for faithful performance of his duty, to recover a discrepancy between the cash found in the drawer and that appearing on the depositor's ledger, the burden of proof as to actual loss is on the plaintiff. Commonwealth v. Strickler, 261. As between parties, and upon error or hearing of any motion in which the question arises collaterally, the date of filing a paper is to be determined by the record; the fact that an alteration and erasure of a material date ap pears in several of the papers filed does not put upon the party, for whom the same were made, the burden of explaining the same, nor can the burden be put upon him by an ex parte affidavit of the other side that the said alterations were unauthorized. (Super. Ct.) Sheip ". Price, 278. There is a presumption of fact that undue influence was brought to bear on the mind of a testator who, although possessed of testamentary capacity, is aged, infirm bodily, with mental faculties impaired, if the confidential adviser be a large beneficiary under the will, and the burden is on him to rebut the presumption. Miller's Estate, 397. See CONTRACT. Murphy v. Liberty National Bank, 526. |