material matters by two reputable, disinterested witnesses who testified to admissions made by the plaintiff as against the uncorroborated testimony of the plaintiff. The rule as to the opening of a judgment is stated by Porter, P. J., in White, Appellant, vs. White, 247 Pa. St., Page 107, (1915) to be as follows: "An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court, and on appeal the question is whether there has been a rightful exercise of the discretion. The measure of proof required to send a case to a jury cannot be defined by rule:" Kaier Company vs. O'Brien, 202 Pa. St., Page 153; "While a judgment should not be opened, as a general rule, on the oath of the defendant alone when it is contradicted by the testimony of the plaintiff, yet where there are corroborative circumstances, or circumstances from which inferences may be drawn corroborative of the defendant, it is usual to open the judgment and refer the questions to a jury. Stockwell vs. Webster, 160 Pa. St., Page 473. Now March 15th, 1915, rule to open judgment and let the defendant into a defense is made absolute.

MACK vs. MILLER.

Act of March 12, 1867, P. L. 35-Legal Tender-Court Rule 31.

The Act of March 12, 1867, P. L. 35, permits a defendant in an action on a contract, before trial, to tender the plaintiff such amount as he admits to be due, with costs and if the plaintiff refuses to accept and fails to recover more than such tender, he shall pay all costs incurred after the tender.

Court Rule 31, Section 1, provides for payment into Court of the amount admitted to be due.

A tender must include the amount admitted to be due on the day of tender, including costs and if more than the debt is tendered the excess is lost, but as costs are fixed, the excess for costs must be repaid the defendant.

In the Court of Common Pleas of Schuylkill County. No. 114, March Term, 1914. Rule.

M. M. Burke, for Rule.
R. P. Swank, Contra.

Koch, J., June 21, 1915. The plaintiff objects to the prayer of the defendants, because the petition does not disclose the portion of said three thousand dollars, which is to be applied to the debt, and the portion that is to be applied to the costs.

"An act authorizing tender of money to be made after suit brought," approved the 12th day of March, 1867, P. L. 35, gives to defendants in all actions for the recovery of money, founded on contract, "the right, at any time before trial in court, to make to the plaintiff, or plaintiffs, a tender of lawful money, equal to the amount he, or they, shall admit to be due, with all lawful costs incurred in said action, up to the date of making such tender."

The act also provides that "if the party to whom. such tender shall be made, refuses to accept the same, then in the event of the plaintiff or plaintiffs' failing to recover more than the principal sum, so as aforesaid tendered, with legal interest thereon, he, or they, shall pay all the costs, legally incurred in the said action, after the time of the tender aforesaid." The defendant may pay the money into court upon leave obtained: ibid.

The first section of our thirty-first rule of court provides that "upon petition and rule and hearing, after five days' notice to the other parties in interest, a defendant may be permitted to pay into court the amount which he admits to be due, together with the costs to that time."

In Berkheimer vs. Geisse et al., 2 W. N. C. 663, our Supreme Court said: "Under the terms of the Act of 1867, the tender must be of the admitted debt, and the costs already incurred."

It is clear that when a tender is made either before or after suit, it must be of the amount admitted to be due on the day the tender is made, and after suit has been brought the costs must also be tendered. In the latter case, there are necessarily two different sums of money to be tendered, the one to cover the debt and the other to cover the costs incurred. If the tender be refused, the defendant may obtain leave and pay the money and the costs into court; but if he happens to tender and pay into court more than the debt which is actually due he must lose the excess; Berkheimer vs. Geisse et al.,

supra. But a different rule would apply to the costs, because, at the time of paying them, they could be fixed, and the excess, if any, would have to be repaid to the defendant.

The defendants should have stated in their petition what portion of the three thousand dollars is to pay the debt, and what portion is to pay the costs.

And now, June 21, 1915, the rule is discharged.

LUTZ vs. LUTZ.

Partnership-Conversion-Accounting.

When one partner manages the business and finally converts all the assets of the partnership, without the consent or approval of his copartner, he will be ordered to account to the copartner for all the property and effects of the partnership.

In the Court of Common Pleas of Lehigh County. No. 2 September Term, 1913. Cora M. Lutz vs. Josiah J. Lutz. In Equity.

Thomas F. Diefenderfer, for Plaintiff.
George M. Lutz, for Defendant.

Groman, P. J., March 15, 1915.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE OF COURT.

1. That the plaintiff and the defendant entered into a partnership about the year 1895 for the purpose of carrying on a general country store business at Jacksonvillle, Lynn Township, said county, under the firm name of J. J. Lutz & Co.; the agreement being verbal, and continued until sometime in 1913.

2. That at the time said partnership was entered into, the plaintiff and the defendant were the owners of the store stock.

3. The active management of the said business. during the entire continuance thereof was in Josiah J. Lutz who received the moneys from the business.

4. That Josiah J. Lutz never rendered any statement or account of said business, nor made any settlement thereof, nor of the interest of the plaintiff; that the books and accounts of the business and partnership,

since the formation of the partnership and up to the present time have been in the possession of the defendant.

5. That Josiah J. Lutz, the defendant, has of his own motion converted the entire stock in trade and assets of the partnership at his own instance without the consent and approval of the plaintiff, and has converted and diverted the said stock in trade as also the proceeds thereof to other purposes.

6. That the respective interests of the plaintiff and the defendant in the said partnership are one-half each.

ARGUMENT.

The testimony clearly establishes the fact that a partnership existed between the parties; that the defendant was in the control and management of the business. There was a large stock on hand when the partnership was formed and for which he has never accounted.

The defendant's attempt to convert the partnership assets as administrator was unlawful and unwarranted and an attempt to wrongfully, unjustly and unlawfully divert the assets of the partnership.

CONCLUSIONS OF LAW.

The defendant is ordered and decreed to properly and sufficiently account to the plaintiff for all property and effects of the partnership, including all stock in trade and assets of the partnership and of all the partnership transactions.

Now March 15th, 1915, the defendant is ordered and decreed to account to the plaintiff for all property and effects, stock in trade as well as all assets of the partnership and of all partnership transactions.

COM. OF PENNSYLVANIA vs. J. CLYDE MYTON. Boroughs-Automobiles-Highways-Danger Signs-Act of

July 7, 1913.

The line separating a borough from a township was the middle of a street. A danger sign was put up by the constable of the borough on the township side of the street. Held, that if the sign had been put up by the proper borough authorities, a defendant in a prosecution for violating the Act of July 7, 1913, P. L. 672, would not have been in a position to complain.

The borough council and the burgess are the proper authorities intended in section 13 of the Act of July 7, 1913, P. L. 672. By their resolution or ordinance duly enacted, the danger sign designated in the act must be authorized. Constables have no authority to erect such signs unless properly authorized by the burgess and council.

Motion for a new trial and in arrest of judgment. Quarter Sessions of Dauphin County, No. 174, September Sessions, 1914.

Wickersham & Metzger and M. E. Stroup for Com

monwealth.

Fox & Geyer and John Fox Weiss for Defendant.

Johnson, P. J., Seventeenth Judicial District, specially presiding. The defendant was indicted and tried on a charge of violating that part of Section 13 of the Act of July 7, 1913, P. L. 672, which reads as follows: "Every operator of a motor vehicle shall sound his horn, bell or signal device, giving reasonable warning of his approach, whenever necessary to insure the safety of other users of the highways, and also when approaching a street or road crossing, dangerous curve, in any of the cities, boroughs, or townships of this Commonwealth, where the proper authorities shall have erected signs, easily readable from the highways and at right angles thereto, bearing thereon, in letters at least five (5) inches in height, the words 'Danger: blow your horn." "

At the trial the jury rendered a verdict of guilty whereupon the defendant moved for judgment notwithstanding the verdict, in arrest of judgment, and for a new trial.

Two constables of the Borough of Middletown of their own motion and without any direction from the borough council, erected at a curve in West Main Street the sign, "Danger: blow your horn," as provided by Section 13 of the Act of July 7, 1913, P. L. 672. At the curve, the middle line in the street forms the division line between the Borough of Middletown and Lower Swatara Township, and the borough has control over that part of the street lying within its limits and the State Highway Department has control over that part of the street without the limits of the borough and within the township. The sign was erected on the township side of the street.