author: Parker, P. J.,

text:
    Emlenton Water Company v. Kelly.

      Justice of the peace — Record—Amendment—Certiorari—Act .of June 1%., 1923.

    1. A docket entry of a justice of the peace cannot be amended after the proceedings have been brought into the Court of Common Pleas on certiorari.

    2. A writ of certiorari operates as a supersedeas by implication, because it takes the record out of the custody of the inferior court and leaves nothing there upon which to proceed.
    Motor Vehicle Act of June 14, 1923, § 30, P. L. 718, considered.
    Rule to show cause why amended transcript of justice of the peace should not be filed. C. P. Venango Co., April T., 1927, No. 30.

      Q. B. Hastings, for plaintiff.

      M. L. McBride and John L. Nesbit, for defendant.
    July, 1927.
   Parker, P. J.,

On Jan. 17, 1927, a summons in trespass was issued in the above-entitled case by Mr. M. R. Henderson, alderman and ex officio justice of the peace of one of the wards of the City of Franklin, Venango County, Pa. The transcript of the justice shows that the summons was served upon the defendant on Jan. 21, 1927, in Mercer County, Pa., by the sheriff of that county.

On Jan. 25, 1927, the plaintiff appeared, witnesses were sworn and judg« ment was rendered publicly in favor of the plaintiff and against the defendant in the sum of $61.04.

On Feb. 15, 1927, a writ of certiorari issued out of this court directed to the justice of the peace, requiring the return of the proceedings to this court. On Feb. 17, 1927, the justice, in obedience to the writ, filed a transcript of the proceedings in this court, and on Feb. 23, 1927, the defendant filed specifications of error. On the same date on which the exceptions were filed, the justice of the peace filed with the prothonotary an amended transcript of docket entries.

On June 6, 1927, the plaintiff presented a motion for leave to file amended transcript of docket of the justice of the peace nunc pro tunc, and on June 8, 1927, filed an affidavit in support of that motion. On this motion a rule to show cause was granted, returnable to the next argument list.

At a regular time set for the hearing of arguments, the motion for leave to amend and certiorari were argued by counsel and aré now before the court for disposition. We will consider both of the matters in this opinion.

The original and amended transcripts state the claim of the plaintiff as follows: “Plaintiff claims $61.04 damages for expense replacing a water plug broken by the defendant backing against it with his car on June 23, 1926.”

The defendant alleges four errors in the record of the justice:

1. The record does not show that the justice had jurisdiction of the cause of action.

2. The record does not show that the damage has been repaired.

3. The docket does not show compliance with the Act of June 14, 1923, § 30, P. L. 718, which amends section 36 of the Automobile Act of 1919.

4. That a plea in abatement should have been sustained.

The fourth reason grounded on the plea in abatement was abandoned on the argument of the case.

The original transcript filed by the justice of the peace did not show that the action arose from the use and operation of a motor-vehicle in this county, and likewise failed to show that the plaintiff had had the damages repaired or had produced a receipted bill for the same, properly sworn to by the party malcing such repairs or his agent. The amended transcript filed by the justice of the peace without authority of the court heretofore granted showed the following additions to the original transcript:

“January 17, 1927, affidavits showing repairs made and cost of same. Sworn by W. L. Cosper and James H. Caldwell. Piled.
“This amended transcript is made to correct the transcript as originally filed, because that transcript was not a true and correct minute and entry of the case as brought and heard before me, in that said transcript did not show that the plaintiff had filed affidavits showing repairs and cost, when in fact the plaintiff did file such affidavits upon entering suit.”

There is one fatal defect which is applicable as well to the amended transcript, even if the amendment were allowed, as to the original transcript. The plaintiff relies upon the Act of June 14, 1923, § 30, P. L. 718, to sustain the jurisdiction of the justice. This section is as follows:

“All civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county wherein the alleged damages were sustained, if the plaintiff has had said damages repaired, and shall produce a receipted bill for the same, properly sworn to by the party making such repairs or his agent, or said action may be brought in the Court of Common Pleas of said county, and service of process, in either case, may be made by the sheriff of the county where the suit is brought, deputizing the sheriff of the county wherein the defendant or his registered agent resides, or where services may be had upon him under the existing laws of the Commonwealth, in like manner as process may now be served in the proper county: Provided, that no action involving more than one hundred ($100.00) dollars shall be brought before any alderman, magistrate or justice of the peace. (Act of June 14, 1923, § 30, P. L. 718.) ”

The justice of the peace attached to his return of the proceedings before him the affidavits by W. L. Cosper and James H. Caldwell and a receipted bill. Nowhere at any place does either the docket or proceedings show that the action for the damages arose in the County of Venango. The docket discloses that the summons was served outside of the county, and if the proceedings are to be sustained, it must be by virtue of some specific act of assembly. In so far as the record discloses, the accident may have occurred in any county or at any place. The jurisdiction of a justice of the peace in civil matters is limited and must always be shown by the record.

“Special jurisdictions must contain on their face everything necessary to show that they are not transcended:” McGinnis v. Vernon, 67 Pa. 149, 152.

The original transcript filed was also defective, in that it did not disclose that the plaintiff had had the damages repaired and produced a receipted bill for the same, properly sworn to by the party making such repairs or his agent. It was in effect conceded by counsel for the plaintiff that without the amendment the judgment could not be sustained. Even if the amendment were allowed, neither the amended transcript or the affidavits which appear to have been actually filed show that the repairs have been made. The affidavits show that a new hydrant was purchased and paid for and the cost of making the repairs was paid. We might assume, if the balance of the record were sufficient, that because the repairs had been paid for, that they had been actually made. There is, however, a failure to comply with the express provisions of the statute by showing that such repairs were in fact made. This might seem to be drawing fine lines, and we do not wish to ground our opinion upon that defect alone. The affidavits are, however, to say the least, irregular and indefinite.

As we have indicated above, it is clear that the judgment cannot be sustained without the amendment, and it was practically so conceded by the counsel for the plaintiff. We will, therefore, consider the right of the plaintiff to file the amended transcript of docket entries. It has frequently been held in this State that the writ of certiorari is not in itself a writ of super-sedeas. But it operates as one by implication, because it takes the record out of the custody of the inferior court and leaves nothing there upon which to proceed: Com. v. Kistler, 149 Pa. 345, 348; Ewing v. Thompson, 43 Pa. 372.

While there are some lower court decisions to the contrary, there is abundant authority of Common Pleas Courts in this State holding that a docket entry of a justice of the peace may not be amended after the proceedings have been brought into the Court of Common Pleas on certiorari. We believe that the better-considered view is expressed by Judge Stewart in the case of Stambaugh v. Baker, 10 Dist. R. 79, 80:

“There is no question but what a justice may amend his record so as to make it conform to the truth while it remains within his own control: Kearney v. Pennock, 12 Pa. C. C. Reps. 37. And in all cases of error, the parties must apply to the justice for relief or correction of his record: Clark v. McComman, 7 W. & S. 469. But where is the authority of a justice to amend it after it has been removed by a certiorari? None has been cited. Manifestly, none can exist. While a justice’s court is not strictly a court of record, yet the justice is a judge of a court which, deriving its jurisdiction from statutory grants, proceeds in most things according to the substance contained in the forms of the common law, and his docket as to things adjudicated by him has the conclusiveness of a record: Coffman v. Hampton, 2 W. & S. 377. Parol evidence is inadmissible to contradict it: Clark v. McComman, 7 W. & S. 469. It is true that when his record comes into court on appeal, the proceedings are de novo, and may generally be amended or changed, but not under all circumstances. When a justice’s docket should have showed, but did not, that the action was brought under a special act of assembly, which would have entitled the plaintiff to a recognizance on appeal in a particular form, the court below quashed the appeals upon the affidavit of the plaintiff showing what the justice’s docket should have contained, and the Supreme Court reversed this decision and reinstated the appeals, saying: ‘It was not thus that the justice’s transcript could be supplemented when the effect would be to deprive the defendant of trial by jury:’ D. & H. Canal Co. v. Loftus, 71 Pa. 418. Besides, what is the justice’s petition to amend more than an offer to prove by parol that the record which he made and is now no longer before him is incorrect? This identical proposition was denied in the opinion of the Supreme Court in Coffman v. Hampton, supra.

Even where amendments have been permitted, it is only claimed that there is discretionary authority in the Common Pleas Court to allow such amendments. We are unable to see any good reason for permitting the amendment to be made in this case. The filing of the amended transcript by the justice of the peace was of no force or effect and could only be given vitality by consent of the court. This principle was apparently recognized by counsel for the plaintiff when he made a motion asking leave to file the amended transcript nunc pro tunc. This, however, was done four months after the suit was instituted and long after the defendant had lost his right to appeal. We do not see anything that should move the court to allow such amendment if we had the authority. We are, however, firmly convinced that it does not lie within the power of this court to permit the transcript to be amended at this time.

Now, July, 1927, the first, second and third exceptions of the defendant are sustained, the amendment is refused, and the judgment for the plaintiff is reversed.

From George S. Criswell, Jr., Franklin, Pa.


source: Caselaw Access Project

author: Henninger, P. J.,

license: Public Domain

text:
    Cross v. Beatty.

      Practice — Summons—Service while defending criminal suit — Waiver by appearance.

      1. A defendant in a criminal case is not privileged from service of a summons in a civil suit while attending court to answer a criminal charge.
    2. Even if defective, the right to object to the service is waived by appearing and defending the suit.

      Dog Law — Illegal Mlling — Value—Limit of recovery against State — Act of May 11,1921.

      3. The Act of May 11, 1921, § 37, P. L. 522, limiting the amount to be recovered for the illegal killing of a dog to $100, applies only in proceedings under the act where payment is to be made by the State, and does not prevent the owner from recovering the full value from the wrongdoer in an action at law.

      Joint defendants — Liability—Joint judgment.

      i. A joint judgment against defendants jointly sued is conclusive of joint liability in the absence of proof to the contrary.

      Certiorari — Alderman’s court — Record—Evidence.
    5. On certiorari to an alderman’s court, the evidence is not a part of the record.

      Alderman — Judgment—Time of entry — Last day falling on Sunday — Act of June 20, 1883.

    6. Where the tenth day allowed for entry of judgment by an alderman falls on Sunday, judgment entered on Monday is in time under the Act of June 20, 1883, P. L. 136.

      Certiorari to judgment of an alderman. C. P. Butler Co., June T., 1927, No. 9.

      W. H. Martin, for plaintiff.

      O. D. Hastings and C. L. McQuistion, for defendant.
    June 30, 1927.
   Henninger, P. J.,

This cause is now before ,us on a writ of certiorari and questions the legality of an alderman’s judgment. Ten exceptions have been filed raising five questions.' We will consider them under the questions instead of under the exceptions.

Defendants were summoned while attending the alderman’s court as defendants in a criminal action in which the plaintiff was prosecutor. There is nothing on the record to support an inference that the criminal prosecution was brought for the purpose of obtaining jurisdiction over the defendants, and as we recollect the criminal prosecution, its history would not support such an inference. Defendants contend that the service of summons was illegal because they were defendants in a criminal action when it was served. This question has been decided by the Supreme Court of our State in the case of Wood v. Boyle, 177 Pa. 620. That case is on all fours with the case we are considering. Wood had Boyle arrested and brought into an adjoining county on a criminal charge, and while Boyle was defending the' action Wood had him summoned in a civil action, both suits based on the same act. Held, that a defendant in a criminal case is not privileged from service of summons in a eivil action while attending court to answer a criminal charge. The record shows that defendants all attended the hearing before the alderman and were represented by counsel, who, after filing the motion to set aside the summons, participated in the hearing by cross-examining plaintiff’s witnesses. We are of opinion that defendants were legally summoned, and also, if not, that they waived the defect by appearing and taking part in the hearing. He who wishes to avail himself of a defect in summons must not participate in the trial on its merits.

This suit was brought to recover the value of a licensed dog illegally killed by defendants. The 37th section of the Act of May 11, 1921, P. L. 522, known as the Dog Law, provides: “Nothing in this act shall be construed to prevent the owner of a licensed dog from recovering by action at law the value of any dog illegally killed by a police officer or any other person within this Commonwealth from such police officer or other person. In case such police officer or other person fails to pay the value of such dog, the same shall be paid by the State. The value of said dog shall be ascertained in the same manner as provided in section 26 of this act for assessing the damage done to livestock by dogs, and shall in no case exceed one hundred dollars for any one dog.”

Defendants contend that this section prevents an action at law, if not entirely, until proceedings were first had under section 26 of said act, and the value of the dog fixed in the same manner that the value of livestock killed by dogs is fixed, and that the amount recoverable is limited to $100. A careful consideration of the entire act of assembly has led us to the conclusion that this is not a proper construction.

The first part of section 37 specifically and expressly provides that the effect of the act should not be to prevent the owner of a licensed dog from recovering by action at law the total value of the dog. The remaining part of the section provides that in case the value of the dog is not obtained from the tortfeasor, the State will pay for the dog to the extent of $100, and that the value of the dog, in case the State is to pay for it, shall be fixed and determined in the same manner that the value of livestock is fixed and determined when the State pays for it.

The language of section 37 was. never intended to limit the recovery of damages for a dog illegally killed, where the suit was brought by the owner of the dog against the tortfeasor. Such a construction would be against the plain wording of the first part of section 37 of the act and the clear intent of the entire act. By a prior provision in the act, dogs aré made personal property. A necessary incident of that expression would be that the owner may, according to the common law, bring suit for all damage sustained by reason of the destruction of the dog. There is nothing in the act that by express words or clear intendment shows that a person owning a dog worth $300 must accept $100 when it is destroyed illegally and maliciously and when he sues the tortfeasor. An act of assembly cannot deprive a person of a right of action, nor fix the time within which it may be brought or limit the amount of recovery unless its title gives notice of such intent. This act does not and no such intent appears in the act. We are of opinion that the owner of a dog has his remedy by common law action for damages, that his suit is governed by the general limitation act and that the amount is not limited by the Act of 1921, but that the provision cited limits the amount that the State will pay, and provides the method that it shall be determined and time within which notice must be given.

The record clearly indicates that the three defendants were together when the dog was shot and that they were acting jointly. No law requires that joint liability appear on the face of this record, except that it show that they were jointly sued, summoned or appeared and that judgment was joint. Before the defendants could take advantage of the record, it would have to disclose the fact that defendants were not acting jointly. A joint judgment is conclusive of a joint liability in default of a record contradicting it. The evidence taken before the alderman is not all on the record, nor is there any requirement that it should be, nor can an inference be drawn that when a part is returned, that it is all the evidence that was before the alderman. In a common law action before an alderman to recover a debt or damages for a wrongful act, the evidence is not part of the record, and the insufficiency of the evidence to sustain the findings of the alderman can only be corrected by appeal. A certiorari does not bring up the evidence. We are of opinion that the sufficiency of the evidence is not before us on certiorari, and that if it were, there is sufficient on the record to sustain the alderman’s finding of a joint liability.

Defendants contend that the alderman’s record discloses the fact that plaintiff’s dog was shot while pursuing defendants’ dogs and that its killing under such conditions was legal. We are unable to adopt this contention, first, because there is nothing on the record to support such an inference; second, that that question could only be raised on appeal; third, a licensed dog pursuing another dog may not legally be killed for that reason. In doing so, it is neither worrying, wounding nor killing livestock or poultry.

Defendants have not excepted on the ground that the judgment of the alderman is void because it was not entered within ten days after hearing, but on argument and in brief contend that, as the hearing was held on Feb. 17, 1927, and the judgment was not entered by the alderman until Monday, Feb. 28th, the judgment is void. By act of assembly, an alderman is required to render judgment within ten days of the hearing. The tenth day was Feb. 27, 1927, and that was Sunday. The Act of June 20, 1883, P. L. 136, provides: “Where, by any existing law or by any law that may hereafter be enacted, the performance or doing of an act, duty, etc., shall be ordered and directed and the period of duration of the performance or doing thereof shall be prescribed and fixed, such time, in all cases, shall be so computed as to exclude the first and include the last day, provided that whenever the last day shall fall on Sunday, such day shall be omitted from the computation.”

Monday, Feb. 28th, was, therefore, the tenth day reckoned according to the said act of assembly. This complaint must be overruled, first, because it was not raised; second, because judgment was entered on the tenth day; and third, because the direction to enter judgment within ten days is directory and not mandatory.

Order of court.

Now, June 29, 1927, exceptions are all dismissed and the judgment of the alderman affirmed.

From Thomas H. Greer, Butler, Fa.


author: Auessandroni, J.,

text:
    Commonwealth v. Lewis et al.

      Justice of the peace — Summary conviction — Record—Fatal defects.

    A magistrate’s record in a summary conviction is fatally defective if it contains no date of the arrest of the defendant; no names of the persons making the arrest; no names and addresses of the witnesses; no indication that defendant and his winesses were given an opportunity to testify; no statement of the testimony heard by the magistrate; no reference to the time and place of the commission of the offense; no statement that the magistrate convicted the defendant of the offense charged, and no reference to the act of assembly violated.

      Certiorari to magistrate. C. P. No. 5, Phila. Co., March T., 1928, No. 11156.

      Lemuel B. Schofield, Assistant District Attorney, for Commonwealth.

      ■S. W. Solus, for defendants.
    April 26, 1928.
   Auessandroni, J.,

On April 20, 1928, Jack Lewis, Charles Graziola and John Horan were arraigned before Magistrate Edward J. Holland on the charge of vagrancy, resulting in the commitment of the said defendants to the House of Correction for three months.

On April 21st counsel for the said defendants filed a petition in their behalf in this court for a writ of certiorari to the said magistrate, setting forth that the commitment of the defendants was illegal and should be set aside for the following reasons:

(a) The record of the magistrate does not disclose the date of the arrest of the defendants.

(b) The record of the magistrate does not show the manner in which defendants were arrested.

(c) The record of the magistrate does not disclose the name of the person making the arrest.

(d) The record of the magistrate does not disclose the addresses of the witnesses who appeared against the defendants.

(e) The record of the magistrate does not show that the defendants and the witnesses were given an opportunity to testify.

(f) The record of the magistrate does not contain a statement of the testimony of the witnesses heard by the magistrate, nor does it contain the time and place of the commission of the alleged offense.

(g) The record of the magistrate does not disclose the act of assembly or ordinances violated, nor does it give an exact description of the offense charged.

(h) The record of the magistrate does not show that defendants were personally present when sentence was pronounced.

(i) The record of the magistrate is generally vague and incomplete and insufficient under the law.

Whereupon the court directed that a writ of certiorari issue to the said magistrate, returnable Monday, April 23, 1928, at 3 P. M.

The record of the magistrate in this case is totally devoid of the legal elements necessary to sustain the conviction of the defendants. Counsel has cited numerous authorities in support of this contention. We need not go further than the opinion of this court in Commonwealth of Pennsylvania v. Anna Reilly, C. P. No. 5, March Term, 1914, No. 3565, which laid down the following requirements in the record of a magistrate in cases of summary convictions:

1. The name and address of the defendant.

2. The date of his arrest.

3. The manner in which he was arrested.

4. The name of the person making the arrest.

5. The charge on which he was arrested.

6. The names and addresses of the witnesses who appeared against him at the hearing, as well as the date of the hearing.

7. The fact that the defendant and his witnesses were given an opportunity to testify, and the names and addresses of the defendant’s witnesses, if any were called.

8. A brief statement of the testimony of each witness, heard by the magistrate, including the time and place of the commission of the offense.

9. The fact that, after hearing the testimony, the magistrate convicted defendant of the offense.

10. An exact description of the offense, referring to the act of assembly or ordinance which was violated.

11. The sentence imposed upon defendant by the magistrate, and the fact that the defendant was personally present when such sentence was pronounced.

The record of the magistrate in this case baffles description. It makes no pretense of attempting to comply with the requirements of the law. It is a mere printed form with a few words typed thereon, adding little, if anything, to the original blank form. There is no date of the arrest of the defendants; no names of persons making the arrest; no names and addresses of the witnesses appearing against them; no indication that the defendants and their witnesses were given an opportunity to testify; no statement of the testimony of the witnesses heard by the magistrate; no reference to the time and place of the commission of the offense; no statement that the magistrate convicted the defendants of the offense charged.

While the defendants appear to have been charged with the crime of vagrancy, there is no reference to the act of assembly violated. There is no notation that the magistrate imposed a sentence, although it is contended that a sentence of three months each in the House of Correction was imposed in the following language: “After hearing, defendant required to give bail in the sum of $-, 3 months each in the House of Correction, conditioned for his appearance in the-Term of Court.”

The courts have, times without number, called the attention of magistrates to the requirements of the law in cases of summary convictions. That defendants too frequently succeed in reversing the judgment of magistrates upon technical legal grounds is not to be blamed upon the exacting requirements of the law in such cases, but upon the almost incurable indifference and laxity of those charged with the administration of the law in such cases. As was said in the Reilly case: “The exercise of the power of summary conviction without trial by jury is an exceedingly arbitrary action, and the judicial officers entrusted with such absolute authority over the personal liberty of the men and women brought before them should see to it that no constitutional right of the accused is overlooked and that no requirement of the law is violated.”

It happens oftener than not that the accused in such cases obtain their discharge, not upon the merits, but upon so-called technicalities, and in this case it may very well be that the charge of vagrancy was a clumsy makeshift of a befuddled police mind, seeking conscientiously to perform its duty, but finding itself in doubt as to the proper charge to be preferred. The law which works the discharge of these defendants is intended for the protection of the innocent and the oppressed. Professional criminals and persistent violators of the law would find their recourse to technicalities intended for the protection of the innocent less profitable if the police and the magistrates, in particular, would avail themselves of the advice and guidance of the district attorney.

The record in this case is fatally defective for the reasons stated, and judgment upon the certiorari must be entered in favor of the defendants.


author: Martin, P. J.,

text:
    Craig v. Edward G. Budd Manufacturing Company.

      Practice, C. P. — Affidavit of defense — New matter — Release—Reply—Acts of May H, 1915, and March SO, 1985.

    In an action of trespass, where an affidavit of defense sets up a release as a defense, it is proper practice under the Acts of May 14, 1915, P. L. 483, and March 30, 1025, P. L. 84, for the defendant to cause notice to be served upon plaintiff, or his counsel, that unless a reply is made to the plea of release, it will be taken as admitted.
    Rule to strike off endorsement from affidavit of defense. C. P. No. 5, Phila. Co., Dec. T., 1927, No. 1512.

      D. H. Cohen, for plaintiff; R. T. McCracken, for defendant.
    March 5, 1928.
   Martin, P. J.,

Suit was commenced by a summons in trespass. Plaintiff filed a statement claiming damages for personal injuries.

An affidavit of defense was filed, in which it was averred that plaintiff had executed a release of damages. There was endorsed on the affidavit of defense a notice: “To James W. Craig, the plaintiff, or his attorney: You are required to file a reply, under oath, to the new matter set forth in the within affidavit of defense within fifteen days after the service thereof upon you or your attorney,” and signed “Robert T. McCracken, Attorney for Defendant.”

Plaintiff moved to strike off this endorsement on the ground that it is unnecessary for a defendant to plead a release which can be offered in evidence at the trial without having been formally pleaded.

Section 16 of the Practice Act of May 14, 1915, P. L. 483, provides that no party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense or plaintiff’s reply, as the case may be, except as provided in sections 7 and 13. Section 7 relates to affidavits made by executors, administrators and persons acting in a representative capacity; and section 13 enumerates the subjects that are regarded as admitted “if not denied.”

“Averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted:” Act of May 14, 1915, § 13.

It is urged that an averment that damages have been released need not be answered or denied.

“A material allegation of new matter in an affidavit of defense means some fact which the plaintiff, in the first instance, does not have to prove in order to establish his cause of action, which goes in avoidance or discharge of the cause of action alleged in the statement of claim, and may cover such subjects as general releases:” Oak Lane Country Day School v. Virginia Fire and Marine Ins. Co., 8 D. & C. 194.

Section 2 of the Act of March 30, 1925, P. L. 84, amended the Practice Act of 1915 by providing, where new matter is pleaded, the plaintiff is required to file a reply; and section 6, amending the same section of the Practice Act, enacts that, in the absence of a reply to new matter pleaded, it will be taken to be admitted.

Under the provisions of the amending Act of 1925, a plea of release, “if not denied specifically or by necessary implication, . . . shall be taken to be admitted.”

Rule 58 of the Courts of Common Pleas, adopted Dec. 15, 1927, provides that “When the defendant relies upon . . . new matter, he must first answer in his affidavit of defense the averments of the plaintiff’s statement of claim, and then set out his . . . new matter under the heading ‘new matter.’ Such an affidavit of defense shall be endorsed as follows; ‘To-, the plaintiff: You are required to file a reply, under oath, to the set-off, counterclaim or new matter set forth in the within affidavit of defense within fifteen days after the service thereof upon you or your attorney.’ This notice must be signed by the defendant or his attorney. Failure to reply, as required, to the set-off, counter-claim or new matter alleged in the affidavit of defense within fifteen days after the service thereof on the plaintiff or his attorney shall be taken as an admission of the truth of such allegation.”

It was proper practice for the defendant to cause notice to be served upon plaintiff or his counsel that, unless a reply was made to the plea of release, it would be admitted.

The notice endorsed on the affidavit of defense should not be struck off.

Rule discharged.


author: Coughlin, J.,

text:
    Bonsavage v. Bonsavage.
    Husband and wife — Divorce—Illegitimate child — Fraud—Act of May 8, 185k.

    1. The existence of an illegitimate child of a woman who fails to tell her intended husband of it will not avoid the marriage and does not constitute such fraud as will entitle him to a divorce under the Act of May 8, 1854, P. L. 644.
    2. This is especially true where evidence of several witnesses is to the effect that the husband, at the time of the marriage, knew the child, had been with it frequently at the home of the mother and knew about its parentage.
    Libel in divorce. C. P. Luzerne Co., May T., 1926, No. 1126.

      M. F. McDonald, for libellant; Paul J. Schmidt, for respondent.
    March, 1927.
   Coughlin, J.,

This is an action in divorce in which subpoena issued April 22, 1926, on libel filed the same date, and subpoena served personally upon respondent April 29, 1926.

Testimony was taken before the court, both libellant and respondent being present with their witnesses and counsel, and the matter now under our consideration is whether or not the libellant upon the testimony is entitled to a decree in divorce.

The grounds alleged upon which divorce is sought are that the marriage between libellant and respondent was procured by fraud, force and coercion, not subsequently confirmed by the acts of the libellant, and more particularly that the respondent concealed from the libellant the fact that she was the mother of a living illegitimate child, born about two years before the marriage between libellant and respondent, which took place Oct. 29, 1924.

Respondent denies any fraud, force or coercion, and avers that, before the marriage ceremony, she informed the libellant as to the child, and that he knew all the facts and details, having full knowledge of and acquaintance with the child.

Both libellant and respondent have lived all their lives in Luzerne County, the respondent residing in Plymouth, the libellant in the adjoining Borough of Larksville. Both attended the same church; the families of both were active therein; they lived within two miles of each other. Intimate acquaintance between libellant and respondent covered a period of five or six weeks, during which they went automobile riding together, went to the theatre and associated evenings at her home.

The parties hereto were married Oct. 29,1924, in Hazleton, Luzerne County, Pennsylvania, by Rev. S. J. Struckus, a priest, at one time in charge of the church they both attended in the vicinity in which they lived, acquainted with both families and intimately acquainted with both the libellant and respondent.

The marriage, by agreement between the parties thereto, was to be kept a secret, libellant and respondent each returning to their respective homes after the marriage. Following the marriage, libellant called upon respondent evenings at her home. About ten days following the marriage, announcement thereof appeared in the press.

■ The testimony is conflicting as to two major facts: First, whether or not libellant and respondent consummated the marriage following the marriage ceremony; second, whether or not the libellant knew of the existence of respondent’s two-year-old child before marriage.

The Act of May 8, 1854, par. 1, P. L. 644, provides that it shall be lawful for the Court of Common Pleas to grant divorce where an alleged marriage was procured by fraud, force or coercion and has not been subsequently confirmed by the acts of the injured party.

There is nothing in the evidence indicating any force or coercion. In order to vitiate the marriage contract on the ground of force or coercion, the same must overpower the judgment, coerce the will. There must be such a mental condition that the libellant did not and could not in reality consent to the marriage: Todd v. Todd, 149 Pa. 62.

“The fraud sufficient to grant a decree of divorce upon must be in what has been sometimes termed the essentialia of the contract. ... It will be found difficult, after a study of the authorities, to lay down any rule which will sharply define and distinguish what are and what are not essentials. Every case must, in a great extent, stand on its| own circumstances:” Sturgeon, Pennsylvania Law and Procedure in Divorce (2nd ed.), 73.

The prior unchastity of a woman concealed from- her husband does not constitute such a fraud on him as to avoid the marriage: Allan’s Appeal, 99 Pa. 196. The same rule is-declared in the English case: 18 L. R. A., note, page 377.

Bishop, in his Marriage and Divorce, § 179, cited in 99 Pa. 200, considers that by well established principles if the woman has even been a common prostitute, and yet reformed her life, yet conceals her former misconduct, the marriage would still be good. The marriage contract is an express renunciation by her of all unlawful intercourse with others than her husband, and he makes a similar renunciation. According to the marriage services, . . . they both solemnly promised, forsaking all others, to keep themselves solely to each other. . . . This marriage service is good evidence of the ancient common law of England. This seems to be also the dictate of humanity and in conformity to the gospel, which so strongly throughout inculcates the rule of forgiveness.

Actual pregnancy at the time of the marriage presents an entirely different question. It introduces a different element. The marriage status of the parties is changed: Allan’s Appeal, 99 Pa. 201. Also, 18 L. R. A., note, page 377, wherein it is held that antenuptial pregnancy by third person makes a woman physically incapacitated for marriage.

Cases which have been supposed to favor divorces for antenuptial misbehavior are cases where there was actual pregnancy at the time of the marriage. These have a direct tendency to confuse inheritance and create disputes of legitimacy.

If the mere fact that a woman has committed fornication before marriage and fails to tell her intended husband of it does not constitute such a fraud upon him in procuring the marriage as to entitle him to a divorce under the Act of May 8, 1854, the existence of an illegitimate child ought not to constitute such a fraud.

It was held that the fact that a woman at the time of marriage was the mother of an illegitimate child, and that she falsely alleged that she was a widow and that the child was that of a former husband, is not ground for divorce: Farr v. Farr, 2 McArthur, 35.

The concealment by a woman of the fact that she had been a mother of an illegitimate child some years before was held not to be ground for annulling the marriage: Smith v. Smith, 8 Or. 100, cited in 18 L. R. A. 377.

In the instant case we find as a fact that the libellant knew of the illegitimate child of the respondent. The respondent so testifies, corroborated by respondent’s two sisters and mother. One of the witnesses of the marriage testified that he asked the libellant whether he knew the respondent had a baby, to which libellant responded, “Yes.” The libellant admits the conversation, but avers the witness asked if he knew the girl he was marrying, and he answered, “Yes.”

The child resided in the home of respondent with respondent’s two grownup sisters and respondent’s mother. Respondent testified that the child was present when libellant called at the home; enlarged pictures of the child hung upon the wall; discussions were held concerning the child; and the libellant played with the youngster and gave it money, as well as taking it riding in the automobile with the respondent. A neighbor, a disinterested witness, testifies that she saw the child accompany the libellant and respondent in the automobile. The priest, the former pastor of both libellant and respondent, testified that he was sure that libellant knew about the baby, having asked him at the time the marriage ceremony was performed, “George, do you know you are of age?” answered in the affirmative; “George, do you know what you are doing?” also, answered in the affirmative; and, further, “Now, do you feel that everything will be all right, knowing Anna’s case?” likewise answered in the affirmative. On cross-examination, the priest testified that “Anna’s case” was well known in the community in which both of the parties lived, having actually been in court. Against all of this there is but the testimony of the libellant. We can come to but one conclusion, and that is that the child’s existence as the illegitimate child of respondent was known to libellant before the marriage, and became the subject of objection following the marriage, due to the attitude of libellant’s family, as averred by respondent.

Finding this fact, as we do, eliminates the question of fraud by the failure of the respondent to disclose the fact if she was called upon to so disclose it.

In reaching this conclusion, we are further assisted by the improbability of much of the testimony of the libellant, who complains that the wife advanced the funds necessary to meet the expenses of marriage, and that he acted “as if he was doped, just like sick.” He was, nevertheless, able to work the morning of the day he was married and the succeeding days, and visited his wife at her residence. Her explanation that she furnished the funds because he was using his money in connection with a new house being erected by his family, in which he was assisting and which house he admits he showed to his wife before they were married, is more capable of belief than his testimony. He gives no explanation except that she wanted to get married, while he did not, when all his actions indicated that his desires in the matter were equal with hers.

The law makes no provision for relief for one who, having solemnly entered into the marriage contract, seeks to avoid it on testimony such as libellant has herein produced.

Therefore, divorce is refused and libel dismissed.

Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Henderson, J.,

text:
    Reimel's Estate.

      Wills — Decedents’ estates — Mausoleum.
    1. A testator leaving an estate of from $25,000 to $30,000 may direct that his executors shall expend $3500 on a mausoleum.
    2. It seems that he may direct the expenditure of any amount for such a purpose, if he does not defeat his wife’s rights.
    3. It does not lie in the mouth of volunteers to complain of- such expenditure.
    Exceptions to adjudication of Lamorelle, P. J. O. C. Phila. Co., Jan. T., 1928, No. 443.

      Carr & Krauss, for exceptions.
    April 23, 1928.
   Henderson, J.,

By his will the testator provided as follows: “I authorize and direct my executors to expend a sum not exceeding thirty-five hundred dollars ($3,500) for the erection of a mausoleum in my lot in Holy Sepulchre Cemetery.”

The total estate is between $25,000 and $30,000. The petition for distribution omits all reference to the above-quoted direction.

In his adjudication, the Auditing Judge stated: “Whether or not a mausoleum can be erected for $3500 is not affirmatively shown. The executors are directed to expend a sum up to this amount, but not exceeding it. . . .”

To this exceptions were filed. Counsel contend that the sum designated by the testator is too much, considering the size of the estate, and that a mausoleum cannot be erected for that amount.

As to the first contention, we will quote what Judge Hanna said in this court in Smith’s Estate, 181 Pa. 109: “Nor are we aware it has ever been suggested that, in the absence of any express statute, the courts will regulate the amount the testator may direct to be thus expended. We see no reason why he may not bequeath his entire estate for such purposes.”

And in Bainbridge’s Appeal, 97 Pa. 482, Mr. Justice Mercur said: “May not the testator have said to the appellant as the good man of the house said to the laborer, ‘is it not lawful for me to do what I will with mine own?’ ”

In Shea’s Estate, July T., 1913, No. 297, not reported, the testator directed the expenditure of $130,000, about one-third of his estate, for the purpose of a lot and the erection of a mausoleum “to be designed after the Temple of Theseus, in Athens.” In sustaining this direction, Judge Dallett, in his adjudication, said: “Every testator has the right to dispose of his estate as he wishes so long as the purposes for which he gives it are lawful. Husband and wife are alone protected from the idiosyncracies of testators.”

It does not lie in the mouths of these volunteers to complain of what the testator had a perfect right to do.

As to the contention that $3500 is not sufficient with which to erect a mausoleum, we think there is some misapprehension. The will does not provide for a family mausoleum, but merely a mausoleum.

We find mausoleum defined in the Oxford English Dictionary: 1. A magnificent tomb of Mausolus, King of Caria, erected in the middle of the 4 c. B. C., at Halicarnassus, by his queen Artemisia, and accounted one of the seven wonders of the world. 2. A stately edifice erected as a commemorative burial place for or by some person of distinction. 3. Catafalque. In Webster’s International Dictionary: A magnificent tomb or stately sepulchral monument. And in the New Century Dictionary: A magnificent tomb erected at Halicarnassus in Asia Minor for Mausolus, King of Caria, by his Queen Artemisia, about 350 B. C., ranking as one of the seven wonders of the world; hence, any stately edifice erected as a burial place for a person or for the members of a family; a magnificent tomb.

The testator had in mind a magnificent tomb or stately monument, and we believe $3500 will be adequate not only to provide such a monument, but also to set aside a small sum to keep it in repair, for a mausoleum to be stately must be cared for.

As the duty of carrying out this direction of the testator devolves upon the executors, they are directed to select and procure a design for such a monument, specifications, estimates for the erection thereof, and report the sum needed for the erection thereof, and how large a fund can properly be set aside for its upkeep, all within the amount fixed by the will — $3500.

When these directions are complied with, they may petition the Auditing Judge to amend the adjudication to make more definite the award in this regard.

The exceptions are dismissed and the adjudication, as modified herein, is confirmed absolutely.

Van Dusen, J., did not sit.


author: CulveR, P. J.,

text:
    Moore v. Lewis et al., County Commissioners.

      Constitutional law — Title of act — Taxation—Horses—Mules—Words and phrases — Act of April 38,1937.

    1. The purpose of the Act of April 28, 1927, P. L. 491, “discontinuing the tax on horses, mares, geldings, mules and neat cattle over the age of four years,” is sufficiently disclosed by that portion of the title which reads “discontinuing the tax on horses, mare's and neat cattle over the age of four years.”
    2. The word “horse” is generic and comprehends and includes geldings, mares and mules.
    3. Even if the act were unconstitutional in so far as it relieves mules from taxation, it would still be valid as to horses and neat cattle.
    Case stated for declaratory judgment. C. P. Bradford Co., Feb. T., 1928, No. 2.

      Lilley & Wilson, for plaintiff.

      Rodney A. Mercur, County Solicitor, for defendants.
    Jan. 23, 1928.
   CulveR, P. J.,

The court is asked in this case stated for a declaratory judgment upon the validity or invalidity of the Amendatory Act of April 28, 1927, P. L. 491, being Act No. 318 of the last session of the legislature.

The plaintiff is a resident citizen of Bradford County, owning five horses and eighteen neat cattle above the age of four years. Said horses have been assessed for taxable purposes for the year 1928 at the sum of $225, and said cattle at the sum of $270.

The question for our determination is whether or not these horses and cattle are liable to taxation for county purposes. 1

The answer to this question depends upon the validity or invalidity of said act of assembly. The title to this amendatory act reads as follows: “To amend section thirty-two of the act approved the twenty-ninth day of April, one thousand eight hundred and forty-four (Pamphlet Laws four hundred and eighty-six), entitled ‘An act to reduce the State debt, and to incorporate the Pennsylvania canal and railroad company;’ discontinuing the tax on horses, mares and neat cattle over the age of four years.”

The act, as amended, reads as follows: “Be it further enacted, that from and after the passage of this act, all real estate, to wit: Houses, lands, lots of ground and ground rents, mills and manufactories of all kinds, furnaces, forges,' bloomeries, distilleries, sugar houses, malt houses, breweries, tan yards, fisheries and ferries, wharves and all other real estate not exempt by law from taxation; and all salaries and emoluments of office, all offices and posts of profit, professions, trades and occupations, except the occupation of farmers, together with all other things now taxable by the laws of this Commonwealth, shall be valued and assessed and subject to taxation for the purposes in this act mentioned, and for all county purposes whatsoever.”

By section 32 of said Act of April 29, 1844, P. L. 486, as originally enacted, many species of personal property, including horses, mares, geldings, mules and neat cattle over the age of four years, were subject to both State and county taxation. By various subsequent acts of assembly, all of these articles of personal property, save only horses, mares, geldings, mules and neat cattle over the age of four years, have been relieved from liability to taxation for county purposes, and most of said articles have by various acts of assembly likewdse been relieved from taxation for State purposes, and many of them have by subsequent legislation again been made subject to taxation for State purposes.

The question for our determination is the constitutionality of this Amenda-tory Act of April 28, 1927. The purpose of the amendment seems to be expressed in the following words in the title: “Discontinuing the tax on horses, mares and neat cattle over the age of four years.”

By the body of the amendment the tax is discontinued on “horses, mares, geldings, mules and neat cattle over the age of four years.”

Defendants take the position that the title to the act gives no notice of discontinuing taxation on mules, and, therefore, the entire act is unconstitutional.

The case stated raises no question as to the liability of mules for taxation. Plaintiff contends that, even though the act be unconstitutional as to relieving mules from taxation, it is valid as to horses, mares and neat cattle, which are clearly expressed in the title.

Our inquiry is, therefore, two-fold: First, in other words, does the term horses include or give notice that geldings and mules are included in such term? We are of opinion it does. We believe [that in] the general understanding and acceptation of the term “horse,” mares, geldings and mules are included. No authority has been called to our attention to the contrary, and in 2 Words and Phrases (2nd Series), 911, we find the following: “All the authorities agree that the word ‘horse’ is a generic term, ordinarily including in its signification the different species of that kind of animals, and generally it is sufficient in charging larceny to describe an animal by the name of the class to which it belongs:” State v. Matejousky, 115 N. W. Repr. 96, 22 S. D. 30.

“Under Penal Code, 1901, art. 881, relating to theft of a horse, the genus ‘horse’ includes a stallion, mare, gelding, etc.:” Beard v. State, 83 S. W. Repr. 824, citing State v. Morales, 21 Texas, 298; McKenzie v. State, 25 S. W. Repr. 426, 32 Texas Cr. Repr. 568, 40 Am. St. Reps. 795.

“The term ‘horse’ in its generic sense embraces all the different varieties of that animal, however diversified by age, sex or condition:” Miller v. Territory, 80 Pac. Repr. 321.

“The word ‘horse’ includes the female sex of that genus:” Southern Ry. Co. v. Pogue, 40 So. Repr. 565.

“Notwithstanding the Penal Code, par. 487, providing that the larceny of a horse, mare, gelding, etc., is grand larceny, proof of the theft of a mare does not constitute a variance from an information charging the theft of a horse, since the word ‘horse’ is used in its generic sense, and includes all animals of the horse species, whether male or female:” People v. Melandrez, 88 Pac. Repr. 372, quoting and adopting definition in People v. Pico, 62 Cal. 50.

“The word ‘horse’ is generic, and includes mules and asses as species; but the term mare is not descriptive of a female of the species mule:” McLamb & Co. v. Lambertson, 62 S. E. Repr. 107.

“The term ‘working horses’ used by the constitutional exemption provision includes mules:” McElveen v. Goings, 41 So. Repr. 229, citing Ray v. Hayes, 28 La. Ann. 641; Goldsmith v. State, 1 Head, 38 Tenn. 154.

It seems to us, therefore, that the term “horse” comprehends and includes geldings, mares and mules, and, therefore, the title to this act is not defective in the manner alleged.

The second question is whether the entire act would be invalid if the words “horses and mares” be held not to include “mules,” or would it be invalid only in so far as it relieves “mules” from taxation?

We are of opinion that even though this act should be held unconstitutional in so far as it relieves mules from taxation, it would still be valid as to horses and neat cattle. The general rule is that all presumptions are in favor of the constitutionality of statutes, and the courts are not to be astute in finding or sustaining objections to their validity. A statute is presumed to be constitutional until a collision with the State or Federal Constitution is affirmatively established. The rule deducible from the authorities has been stated in the following language: The violation of constitutional provisions must be clear and such as to leave no doubt or hesitátion in the judicial mind.

In Com. v. Butler, 99 Pa. 540, it was held to justify the court in pronouncing the act unconstitutional it must conflict with some exception or prohibition of the Constitution, clearly expressed or necessarily implied; if its constitutionality depend on the construction of a word, any meaning thereof, whether technical or popular, which will sustain the constitutionality of the statute will be adopted.

An entire act is not necessarily unconstitutional because the title fails to give notice of some particular matter contained therein: Dewhurst v. Allegheny, 95 Pa. 437.

Unless it be inseparable, that part of an act only which is not within the subject stated in the title will be declared unconstitutional, leaving the rest to stand: Smith v. McCarthy, 56 Pa. 359; Com. v. Green, 58 Pa. 226; Com. v. Caulfield, 211 Pa. 644.

Believing the term “horses” in the general understanding and acceptation of the term includes geldings, mares and mules, we are convinced that the title of the act in question is sufficient and gives sufficient notice to meet the constitutional requirements and to justify including, in the amending clause, mules.

We appreciate it is unwise for a court to decide any question not necessary to the particular case involved, and that we are only called upon in this case to decide whether or not horses and neat cattle are relieved from taxation by the act in question. However, as there are a small number of mules in this county, and the case stated is to secure for the taxing authorities the decision of this court on the validity of the act in question, we believe it better to pass upon the entire act in this case, thereby making another case unnecessary to determine the liability of mules to taxation.

The court being of opinion that the act in question is constitutional and valid, judgment should be rendered in favor of the plaintiff on the case stated.

Order.

And now, to wit, Jan. 23, 1928, after due and careful consideration, judgment is rendered in favor of the plaintiff on the case stated and the taxing authorities of the County of Bradford are advised that the valuation shown by the assessment rolls upon horses, geldings, mares, mules and neat cattle over the age of four years should be excluded. Cost of this case to be paid by the County of Bradford.


author: Searle, P. J.,

text:
    Preston Township Overseers of the Poor v. Thompson Township Overseers of the Poor.

      Justice of the peace — Jurisdiction — Appeals — Rule to dismiss appeal— Trial on the merits.

    On an appeal taken from the judgment of a justice of the peace, the Question of the jurisdiction of the justice will not be considered on a rule to dismiss the appeal. The case must be considered on a hearing of the appeal on its merits and the question of jurisdiction then decided.
    Rule to dismiss proceedings because of lack of jurisdiction of the justice. Q. S. Wayne Co., June Sess., 1927, No. 28.

      M. E. Simons, for appellant; Miller & Miller, for appellee.
    Aug. 8, 1927.
   Searle, P. J.,

This proceeding was brought before F. A. Stoddard> a justice of the peace in and for said County of Wayne, in the Borough of Starrueca, by the Overseers of the Poor of Preston Township, Wayne County, Pennsylvania, against the Overseers of the Poor of Thompson Township, Susquehanna County, Pennsylvania, for an order of removal under the Act of June 13, 1836, P. L. 544, and the amendment thereto of April 6, 1905, P. L. 115, of one Phoebe Reigle and her four minor children, who, it was alleged, “are likely to become chargeable to the Poor District of Preston Township.”

At the hearing, counsel for the defendant appeared specially and objected to the jurisdiction of the justice of the peace. This objection was sustained by the justice of the peace and the proceedings dismissed, and from this action on the part of the justice of the peace the Preston Township Overseers have appealed to this court.

Rule was granted to show cause why the appeal should not be dismissed because of lack of jurisdiction of the justice. Although the parties are willing we should decide the question of jurisdiction before the case comes to trial, we do not consider that the proper practice.

In the case of Hannah v. Kaplan, 21 Lacka. Jurist, 300, Newcomb, J., decides, and we think it necessary only to quote from his decision in this case:

“By his brief, it would appear that counsel had misconceived the application of the familiar principle that where the magistrate is without jurisdiction of the subject-matter, the Common Pleas acquires none by appeal.
“No question about that; but the attempt to enforce it in this way overlooks the nature and function of the remedy by appeal, which operates only to bring the cause into court upon whatever merits, if any, it had. In other words, by appealing, defendant elected to join issue with the adversary on the substance of his demand and thus put him to his proof. Therefore, the question whether it had any merits cognizable by the court of original jurisdiction will depend upon what develops on the trial of the issue, which defendant must be deemed to have tendered by mere force and effect of his appeal. If the cause of action thus disclosed shall turn out to be one of which the alderman has no statutory jurisdiction, advantage of the defect may then be effectively taken by defendant. The attempt to invoke the objection on the present motion merely serves to confuse the office of an appeal with that of a certiorari — two radically different proceedings.”

We have very great respect for the opinion of Judge Newcomb, and consider him a high authority upon matters of pleading and practice, and we can add nothing to his opinion in this case.

Now, to wit, Aug. 8, 1927, the rule to show cause why this appeal should not be dismissed for lack of jurisdiction is discharged, leaving that question to be raised upon the trial of the case, should counsel so desire.

From A. G. Rutherford, Honesdale, Pa.


author: Bebkey, P. J.,

text:
    Goller v. Wass’s Administrator.

      Attachment execution — Rights of attaching creditor — Jury trial.

    Where a plaintiff issues an attachment execution and the garnishee enters a plea of milla liona, upon trial thereof, the plaintiff must offer in evidence his judgment or the writ of attachment execution in order to show that he is a creditor; otherwise the court will direct a verdict for the defendant.
    Motions for new trial and for judgment non obstante veredicto. C. P. Somerset Co., Sept. T., 1925, No. 454.

      Boose & Boose, for plaintiff; Shaver & Heckman, for defendant.
    July 11, 1927.
   Bebkey, P. J.,

The plaintiff, L. R. G,oiler, issued an attachment execution, Aug. 19, 1925, against Edward Wiltrout, defendant, with clause of scire facias to Asa T. Matthews, administrator of Phoebe A. Wass, deceased, as garnishee. The case was then proceeded with irregularly.

The court, on motion, struck from the record the irregular matters, entering the following order: “The attachment execution stands as the plaintiff’s statement of demand, and leave is granted to the plaintiff, L. R. Goller, to rule the defendant or the garnishee, or both, to plead to the plaintiff’s statement, by which procedure an issue of fact may be raised and the case go to trial on the disputed matter of facts raised by the pleading.”

The8 garnishee, on Oct. 20, 1926, entered a plea of nulla bona and specially pleaded:

“(a) Edward Wiltrout, on May 27, 1924, was advanced by your administrator the sum of twenty-three, and 10/100 ($23.10) dollars, that being the amount which he owed the estate of Phoebe A. Wass, deceased, for the purchase of personal property at the administrator’s sale of the personal property of the decedent.
“(b) That on May 9, 1925, Edward Wiltrout assigned to Allen Becket the balance due him, the said Edward Wiltrout, from the estate of Phoebe A. Wass, deceased, and said assignment was filed with the administrator on May 9, 1925.
“(c) The said fund is further liable to reasonable counsel fees to be awarded by the court under the provisions of section 1 of the Act of April 22, 1863, P. L. 527, for services as counsel rendered the garnishee in these proceedings by Daryle R. Heckman, Esq., and C. L. Shaver, Esq., members of the bar of the Courts of Somerset County, Pennsylvania, the amount of which is to be ascertained, determined and fixed, as said Asa T. Matthews is advised and believes, by the Court of Common Pleas of Somerset County, Pennsylvania.”

The ease went to trial on the issue thus raised, resulting in a directed verdict for the defendant. The case is before the court on motions for new trial and judgment n. o. v.

All the reasons assigned go to the one proposition that the court erred in giving binding instructions to the jury to return the verdict for the defendant. The instructions to the jury were thus stated by the court: “There is no evidence here that this plaintiff is a creditor, and, therefore, [he] is not entitled to a verdict at your hands, and under the law we direct you to return a verdict for the defendant.”

The plaintiff in an attachment execution is placed in the position and acquires the right of the debtor: Fessler v. Ellis et al., 40 Pa. 248. His attachment is his suit to reach the debt alleged to be due to his debtor: Corson v. McAfee, 44 Pa. 288, 291; Wherry v. Wherry, 179 Pa. 84, 88. The thirty-fifth section of the Act of June 16, 1836, P. L. 755, declares that a clause in the nature of a scire facias against a garnishee in a foreign attachment shall be inserted in the writ of attachment. ... In form, then, a writ of attachment execution is like a writ of scire facias which issues on a judgment in foreign attachment. . . . The form of procedure is the same in each: Bonnaffon v. Thompson, 83 Pa. 460, 461. A scire facias contains the substance of a declaration, and, therefore, in suits of this kind, declarations have not been usual (Kean et al. v. Franklin, 5 S. & R. 146, 155); a scire facias, though not in all respects an action, but rather a demand of execution, does ini truth partake, in a great measure, of the nature of an action. There would be no impropriety in filing a declaration on a scire facias, though it is seldom done, because there is no occasion for it, as everything necessary to be set forth in a declaration is contained in the body of the scire facias, to which the defendant may plead (Umberger v. Zearing, 8 S. & R. 163, 164), but a scire facias answers the purpose both of a writ and a declaration: McKinney v. Mehaffey, 7 W. & S. 276.

The trial proceeded by the plaintiff without, at any stage of the case, putting in evidence the plaintiff’s judgment against the defendant or putting in evidence the attachment execution with clause of scire facias by virtue of which no cause of action came upon the record. Counsel for the plaintiff contends ‘.‘that it was not incumbent upon the plaintiff to offer the original judgment,” and cites Black v. Nease, 37 Pa. 433. It is there said: “These attachment executions are governed by the law of foreign attachments, and it is the rule in foreign attachments that the garnishee shall not plead anything to the scire facias which goes to lessen or deny the debt from the defendant to the plaintiff.” That case is only authority that the plaintiffs were under no necessity of putting their judgment in evidence, but it does not decide that it was not necessary to put in evidence the scire facias, as everything necessary to be set forth was contained in the attachment execution. I am clearly of the opinion that it is incumbent on the plaintiff to put in evidence the plaintiff’s judgment or preferably the writ of attachment execution. The garnishee may plead the general issue — nulla bona — but an execution attachment does not change the relations with which it interferes further than to transfer the rights of the defendant which result from those relations. It does not take away or abridge any right of the garnishee, and, therefore, it leaves to him all the rights of set-off, defalcation and defense generally which are incident to the relations existing at the time of the service of the attachment. The garnishee may successfully set up a claim in extinguishment of the judgment against him by the defendant (Myers v. Baltzell, 37 Pa. 491, 493), and a cross-demand against the defendant in an attachment may be set off by the garnishee as it may by a defendant in any suit, but subject to the same rules and restrictions: Pennell v. Grubb, 13 Pa. 552 (551), 554.

An attachment execution, while a final process against the defendant, is an original process against the garnishee, that is, it is a starting of a new suit against the garnishee with all the incidents of an independent proceeding. It contains a clause of summons for the garnishee, and as to him it is the beginning of a new proceeding: Bank of New Bethlehem v. Maikranz, 44 Pa. Superior Ct. 225.

The practice in the adjudicated cases seldom appears in the reports, but Beaver, J., says in an opinion: “The plaintiff, having a judgment against the defendant, issued an attachment execution to attach in the hands of the garnishee the amount of a bond and mortgage given by the garnishee to the defendant. Upon a plea of nulla bona an issue was joined, and in the trial the plaintiff offered his judgment against the defendant and the bond and mortgage given by the garnishee to the defendant. ... A prima fade case' was established:” Trust and Safe Deposit Co. v. Smith, 19 Pa. Superior Ct. 235, 236, 237.

Inasmuch as there is an original summons to the garnishee in this form of action, it must sustain itself by a declaration, or scire facias in lieu thereof, and upon the trial the action must be made out by putting in evidence the judgment on which the attachment issued, or by putting in' evidence the attachment execution, followed by evidence that the garnishee has assets in his hands belonging to the plaintiff’s debtor. Nothing short of such evidence is sufficient to sustain a prima facie case. Without the record so made up by the plaintiff, the garnishee is left in the dark as to what he is required to meet.

In the case at bar, the plaintiff offered neither the plaintiff’s judgment nor the writ of attachment, which was fatal to a recovery by the plaintiff. The elements necessary to establish a prima facie case were wanting. This disposes of the motion for a new trial, and, for the same reason, the plaintiff’s motion for judgment n. o. v. must be refused.

Decree.

Now, July 11, 1927, the plaintiff’s motions for a new trial and for judgment n. o. v. are each separately overruled, a new trial and judgment n. o. v. both refused.


author: Stock, J.,

text:
    Martin v. Gettle.

      Contracts for sale of real estate — Time of performance — Consent to delay — Demand and tender of performance.

    1. In contracts for the purchase of real estate, time is not of the essence of the contract, unless expressly so made.
    2. Where the time stipulated for the performance of a contract in which time is not of the essence has passed without demand and tender of performance by either party, the time for performance becomes indefinite, but mutual and dependent whenever it should occur. In such case, whichever of the parties first desires to enforce performance is bound to regard his part of the contract as a condition precedent, and must perform or offer performance in order to enable him to proceed to enforce the contract.
    3. When a contract contains concurrent conditions, mutual and dependent covenants, either an offer of performance or of an intention to perform by one party must be shown before he can charge the other with a breach.
    4. The fact that the real estate of a vendor is subject to a lien in excess of the amount of the balance of the purchase money to be paid, which, before the purchaser tendered performance on his part, he arranged to be released, was not sufficient in itself to constitute a breach of the agreement.
    5. In an action by the purchaser of real estate to recover from the vendor part of the purchase money paid, on the ground that the vendor had committed a breach of the contract by failure to convey on the day designated in the agreement of sale, where it appears that the vendee acquiesced in the delay and brought his action without tender of performance on his part or demand of performance by the vendor, there can be no recovery.
    Motion for judgment for defendant non obstante veredicto. C. P. York Co., Aug. T., 1926, No. 36.

      Schmidt, Keesey, Stair & Kurtz, for defendant and motion.

      Jacob E. Weaver and Donald S. Yost, contra.
    June 13, 1927.
   Stock, J.,

The facts in this case are not in dispute. These facts are as follows: On Aug. 29, 1924, plaintiff and defendant entered into a written agreement for the sale by defendant to plaintiff of a certain farm for the price of $2000, payable $300 in cash, the balance to remain on the property on first mortgage, the deed to be delivered on or before Sept. 16, 1924. Defendant’s tenant was to remain on the premises until April 1, 1926. The day fixed for delivery of deed was permitted to pass without a tender of performance, or an offer to perform, or a demand for performance by either party. Plaintiff had paid the $300 cash previously. Defendant had a clear title to the property, except that a judgment in the sum of $2226, exceeding the balance due on the purchase price, was a lien against the property, and for that reason title could not be given by the vendor at the time agreed upon.

Plaintiff wrote several letters inquiring about the delay, and in one of them tried to arrange a definite date of settlement, and finally, on Nov. 3, 1924, wrote defendant’s attorney acquiescing in the delay. On Dec. 2, 1924, plaintiff attempted to rescind the agreement and demanded a return of the money paid by him on account of this contract. At the same time, probably the same day, defendant, through her attorney, E. E. Allen, Esq., who had been employed by both parties to the agreement, notified plaintiff that she was in position to secure the release of the judgment, and asked plaintiff to execute a bond and mortgage which had been prepared and forwarded to plaintiff. Defendant had previously secured the assent of Patterson, the plaintiff in the judgment encumbering this property, to release this property from the lien of his judgment. Plaintiff, however, stood upon his rescission and refused to perform under the contract. He later brought this suit to recover the sum of $300 paid on account of said agreement.

These facts are not in dispute. Both parties take the position that the determination of this suit is a question of law for the court to decide, and that there is no issue of fact for submission to a jury.

It is established beyond question that in contracts for the purchase of real estate time is not of the essence of the contract, and if the vendee, the plaintiff, desired to complete performance on Sept. 15, 1924, it was his duty on that day to tender performance on his part and demand delivery of the deed: Weaver v. Griffith, 210 Pa. 13; Tiernan v. Roland & Blackstone, 15 Pa. 429-441. When Sept. 15, 1924, passed without demand and tender of performance by either party, the time for performance became indefinite, but mutual and dependent whenever it should occur. In this category, whichever of the parties first desires to enforce performance is bound to regard his part of the contract as a condition precedent and perform or offer performance in order to enable him to proceed to enforce the contract: Irvin v. Bleakley, 67 Pa. 24. When the time for the payment of purchase money and for delivery of the deed has passed without performance or tender thereof by either party, the time for performance becomes indefinite, and whichever of the parties first desires to enforce the contract must perform, or offer to perform, his part of it as a condition precedent. When a contract contains concurrent conditions or mutual and dependent covenants, either an offer of performance, or of an intention to perform by one party, must be shown before he can charge the other with a breach; and without a breach, there can be no ground for rescission of the contract: Boyd v. McCullough, 137 Pa. 7; Holt’s Appeal, 98 Pa. 257; Hatton v. Johnson, 83 Pa. 219; Eberz v. Heisler, 12 Pa. Superior Ct. 388. The rule is different where vendor never had title, Hopkins v. Phillips, 76 Pa. Superior Ct. 243, or where time is expressly made of the essence of the contract: Benner v. Berman and Trattner, 82 Pa. Superior Ct. 313. In the first case, the vendor is in default by reason of the want of title, and tender of the purchase money by the vendee is unnecessary, for vendor could not convey if tender had been made. In the second class of cases, when time is made of the essence of the contract by express words, failure to perform within the time fixed in the agreement is a default, and vendee has the right to rescind immediately and demand return of the money paid on contract.

At the time of trial, plaintiff relied upon the ruling in Eberz v. Heisler, 12 Pa. Superior Ct. 388, in which it was held that where the time for performance had passed by without demand for performance made by either party, a tender of the balance of the purchase money was not necessary in order that the vendee could recover the amount paid by him on account, for the reason that the recovery was sought in disaffirmance of the contract. However, this case clearly states the law that although tender of performance is not necessary, yet it is essential that before rescission the party wishing to rescind must demand performance on the part of the other party and afford him a reasonable time within which to perform. In the case cited, the question was decided on the pleadings. Plaintiff alleged in his statement of claim that he was ready and willing to perform at the time he notified defendant of his rescission, and that he stood ready and willing to perform until suit was brought, which was twenty-seven days later, so that the court held in that case that defendant had had a reasonable opportunity after demand to perform. In the instant case, however, the first act on the part of plaintiff which might be construed a demand upon defendant for performance was done on Dec. 2, 1924, on which very day defendant, through her attorney, notified plaintiff that she was then ready and willing to perform, and called upon him to perform, which he refused to do. This refusal on his part constituted a breach of the agreement and takes from him his right to recover in this action.

The fact that a lien existed as an encumbrance against this title greater in amount than the balance due on the contract was not sufficient in itself to constitute a breach of the agreement on the part of the defendant, for she had made her arrangement with Patterson, the holder of the judgment, that he would release the land to be conveyed and would accept in lieu thereof an assignment of the vendee’s mortgage as security for the payment of his judgment which covered other real estate. She, as vendor, was not bound to remove an encumbrance except upon demand of the purchaser for performance, accompanied by an offer of readiness to perform on his part: Irvin v. Bleakley, 67 Pa. 24; Boyd v. Hoffman, 241 Pa. 421.

And now, to wit, June 13, 1927, the rule granted upon defendant’s motion for a new trial is discharged, and the rule for judgment non obstante vere-dicto is made absolute, and judgment is entered in favor of the defendant and against the plaintiff non obstante veredicto; and plaintiff is granted an exception to the action of the court in this regard.

From Allen C. Wiest, York, Pa.


author: SAYERS, P. J.,

text:
    Phillips’s Estate.
    No. 1.

      Decedents’ estates — Assignment of expectancy — Construction of written instrument — Evidence—Witness—Act of May 23, 1887.

    1. Where a writing delivered hy a son to his mother is alleged to be an assignment of his expectancy in her estate, but is claimed by him to be merely a release to her of what she owed him, and the paper itself is ambiguous on its face, the testimony of witnesses and the declarations of the mother herself are admissible in evidence in partition proceedings after the mother’s death to show that it was the understanding of both parties that the paper was a mere release to the mother of what she owed him and not an assignment of his interest in her estate if she died intestate.
    2. In such case, the son is a competent witness, inasmuch as he was not a surviving party to the thing or contract in action within the prohibition of clause (e) of section 5 of the Act of May 23, 1887, P. L. 158.
    3. The declarations of the decedent were also admissible, inasmuch as the rule excluding hearsay evidence does not apply to oral or written declarations of deceased persons made against their interest.
    4. The assignment of an expectancy in an estate of a living person may be enforced as an executory agreement to convey, but such assignment must be sustained by a valuable, and not merely a good, consideration.
    5. The consideration of the sum of one dollar is insufficient, and especially is this so where the enforcement of the assignment would violate the presumption in favor of the rule of equity among children.

      Partition — Issue—Act of June 7, 1917.

    6. Where, in partition proceedings, there is nothing at issue except the construction of a paper, the matter is for the court alone, and an issue will not be directed to the Common Pleas, as provided by section 21 of the Act of June 7, 1917, P. L. 363, 382.
    Petition for partition. O. C. Greene Co., June T., 1926, No. 1.

      Scott & Hook, for petitioner; Montgomery & Waychoff, contra.
    Oct. 26, 1927.
   SAYERS, P. J.,

Isabelle Phillips died intestate Dec. 28, 1925, leaving as her only heirs-at-law two sons, Curl H. Phillips, aged fifty-five, and George W. Phillips, aged fifty-three, and seized of a house and two lots of ground in Carmichaels Borough.

On April 26, 1926, Curl H. Phillips presented his petition to this court and obtained a eitition on George W. Phillips to show cause why an inquest in partition should not be awarded. To this citation George W. Phillips made answer, denying the right of petitioner to have partition, for the reason that he is barred by an assignment of his expectancy, Exhibit “A,” attached to the answer, and is not entitled to any interest in said real estate as an heir of decedent, and is, therefore, without standing to demand partition. The respondent also alleges that he had exclusive possession of the premises, and that no attempt to agree upon a partition had been made prior to the filing of the petition.

In a replication filed, Curl H. Phillips averred that decedent died seized of the premises, and that respondent was not in exclusive possession and was only entitled to his one-half of the premises as an heir of decedent. Petitioner avers that the alleged release is not a release of his interest in the estate of decedent, and was not intended so to be, and could not operate as such because it was without consideration; also, that the writing was, as intended to be, a release only of any and all claims which petitioner then had, or might thereafter have, to any real or personal estate then belonging to Isabelle Phillips.

Testimony was taken before the court and the case argued, and it appeared that the only real question in controversy was whether or not the alleged assignment of expectancy was a bar to respondent’s claim of title and right as an heir-at-law to the real and personal estate of decedent? If the writing was not an assignment or release of petitioner’s interest in decedent’s real estate, then he is entitled to partition.

Facts.

We have filed elsewhere an opinion involving the construction of this paper. The testimony relative “thereto was taken in a case at No. 34, June Term, 1926, wherein it was claimed, inter alia, that by said paper Curl H. Phillips had assigned and released all interest in his mother’s estate, and, consequently, had no right to letters of administration thereon. [See next case.]

It seems to be conceded that the real estate and personal property that decedent had on Oct. 26, 1907, was devised to her by John W. Phillips, her husband, who died intestate in 1901, and who devised to each of his said sons, the petitioner and respondent here, the sum of $1. Curl H. Phillips was claiming that he never! received through his mother what he should have received from his father’s estate, as well as other money he had given to her from time to time, which she kept, claiming she was entitled to keep because "she had raised him” and presumably had a right to apply the money to pay his board and maintenance.

The court, at the hearing, permitted evidence to be taken for the purpose of showing the circumstances under which the paper marked Exhibit “A,” page 37 of the testimony, was executed and delivered by Curl H. Phillips to the said Isabelle Phillips. Curl H. Phillips, apparently disappointed at not receiving more money from his father’s estate, kept demanding from his mother from time to time that she give him the one dollar that was bequeathed to him. He was a soldier in the Spanish-American War, and had given his mother to keep for him $200 of money he drew while in the army, $425 he earned working on a mail route for M. M. Thompson, and $200 he earned working on an engineering corps, in all about $880.76 (page 8). Decedent admitted that she owed Curl over $800, part of which he got before he went to the Philippines. See testimony of Louie Guseman, page 16.

He asked his mother for this money, and the dollar bequeathed to him, frequently, but she denied owing it to him, and that started trouble between them, and he says it would cause him to take to drinking. She appeared to have refused to pay him his money, claiming that she had raised him and was entitled to the money.

It is claimed that the release, Exhibit “A,” needs no explanation, that its meaning is apparent, and there are no latent ambiguities to be reconciled in order to understand the writing. In view of the above-recited facts, the paper might bear either of two constructions. It may be construed to be a release of any and all claims that he might assert on account of the money claimed by him from his mother, and an agreement not to molest or disturb her in the future. It is not at all clear, nor does the language of the paper sustain the contention of the appellant, that it was intended to be a release of all interest of the appellee in his mother’s estate. The evidence taken before the court was for the purpose of ascertaining, if possible, which of these two purposes was in the minds of the parties at the time the paper was executed.

About the time the paper was executed, Oct. 26, 1907, Curl claimed his mother owed him the aforesaid sum of money, and they had some trouble about it and went to ’Squire J. L. Rea’s office and stated to him that they had settled their difficulties and asked him to draw up a paper, by which Curl would agree to treat his mother properly in the future and behave himself properly toward her. Subsequent to the execution of this paper, Louie Guse-man, who was well acquainted with decedent, testified that she talked with her about her business and asked her “why she didn’t make a will, and she said, when she was gone it would be divided any way” between the children, and that decedent had mentioned the matter more than once. Flossie Feitt testified that she was nursing Mrs. Phillips at one time, and Mrs. Phillips told her to get the paper (Exhibit “A”), that she wanted to see it, and wanted the witness to see it. Mrs. Phillips “said she had that paper, but it didn’t amount to anything. She just had it to scare Curl, and I asked her to go ahead and get her business straightened up, and she said it would be all right.”

Another witness, Agnes Baker, said Isabelle Phillips exhibited the writing to her, and she “said the paper wasn’t worth the paper it was wrote on.” Mrs. Louie Kuhn said she often talked to decedent relative to the disposition she would make of her property after her death, and she said “it was hers while she lived and then it went to the children.”

Bigler Miller says when she was sick in bed and was talking about dying, “I said, why don’t you make a will and will it to the two boys?” She said, “I reckon they will get it anyhow.” “We gob to talking about this paper (Exhibit ‘A’) ; she said it wasn’t worth the paper it was written on.”

’Squire Rea said he had a conversation with Curl H. Phillips, shortly after his mother’s death, about the paper, and he asked the ’squire if he still had it, and, in speaking about his right to participate in his mother’s estate, he said “he didn’t know whether he had any rights or not.”

Curl H. Phillips says he refused to sign a paper (a renunciation) which ’Squire Rea asked him to sign shortly after his mother’s death and before letters were granted to George W. Phillips.

In view of the facts as we have found them to be, this court has arrived at the conclusion that the paper was executed as a release to Isabelle Phillips of all claim of the said Curl H. Phillips that he then had, or might thereafter have, against her property or the money which he claimed she had received from him, and an agreement on his part to forego his right to demand payment of the same from her. The wording of the paper itself will support this construction, based on the fact alone that she had his money in her hands and claimed the right to withhold payment from him. When we consider the additional fact that she declared in effect and on several occasions that it did not affect his right to claim his share of her estate, and that he would participate equally with his brother in her estate, we can readily conclude that it was not intended to bar his right to claim as her heir. Curl H. Phillips was not a good witness, but he made it sufficiently clear that he had a money claim against his mother, and that he intended by the paper, Exhibit “A,” to release his claim against her and her property.

We believe that the testimony of Curl H. Phillips to these facts was competent and relevant, because he was not a surviving party to the thing or contract in action within the prohibition of clause (e) of section 5 of the Act of May 23, 1887, P. L. 158, and he comes within the exception that where the controversy is “between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.” See Allen’s Estate, 207 Pa. 325.

Nor was the objection to the testimony of the witnesses who testified to the declarations of decedent well taken. “If there is anything well settled, it is that the rule excluding hearsay evidence does not apply to oral or written declarations of deceased persons, made against their interest” (Taylor v. Gould, 57 Pa. 152), even if the testimony in this case could be construed a3 against the interest of decedent.

The alleged release or assignment, being for $1, was without sufficient consideration, and, moreover, the construction contended for by the appellant violates the presumption in favor of the rule of equality between children: Morris et al. v. Carlin, 5 Dist. R. 714.

Discussion.

Shall we construe this paper to mean that the petitioner was releasing a claim which he had against his mother, or did it mean that he was assigning to her his expectancy in her estate? Was it not absolutely necessary to take testimony to show what was meant by the word claim in said paper? The paper almost of itself bears the construction that it was a release of all claims he had against his mother, and of such part of her property as she had from her husband, and which was apparently all the property she had at the time.

It is certainly not clear from the language of the paper itself that it was intended as an assignment of his expectancy in his mother’s estate. He was assigning all claims “I now have to property that now belongs to Isabelle Phillips.”

An assignment of an expectancy may be enforced as an executory agreement to convey, if it is sustained by a.sufficient consideration: Fritz’s Estate, 160 Pa. 156. In Lennig’s Estate, 182 Pa. 485, 495, the court says: “There are plenty of authorities in relation to this species of assignment or grant, but the sum of the whole of them is that at law they convey nothing, and in equity they must be founded upon a valuable, not merely a good, consideration.”

Here, there was no valuable consideration moving to Curl H. Phillips. His mother was not purchasing his share or expectancy in her estate. She is presumed to know that she could control that by will without his joinder or consent. No; the paper and the testimony show that she paid a consideration of $1 to obtain from him a release of his claim to a part of his father’s property and to money he had given her to keep for him, or to pay for his maintenance, as she alleged.

The construction contended for by respondent violates the rule that the presumption in such cases is always in favor of equal distribution.

In Miller’s Appeal, 31 Pa. 337, 340, the court says: “I entirely agree that to give an instrument the effect of a release of all future interest in an estate to which one is an heir, it should be clear and unambiguous. The intention should be manifest. Presumptions are all in favor of equal distribution.” See, also, Power’s Appeal, 63 Pa. 443, 445, to the same effect. Whether or not, in the absence of explanation, this paper could be sustained as a valid assignment depends on the bona, fides of the transaction and the adequacy of consideration: Kuhn’s Estate, 163 Pa. 438, 441. It is extremely doubtful, on the face of the paper alone, as to whether or not it was intended to operate as an assignment of an expectancy. If so, it has not on its face any evidence that it was intended in good faith so to be, and such intention falls for want of an adequate consideration to support it. “The burden of proof is upon the purchaser of the expectancy to show that the consideration given was adequate:” 5 Corpus Juris, 862 (29).

There is nothing at issue here except the construction of the paper, and that is for the court. There is, therefore, no such substantial dispute arising out of the facts as would require the court to direct an issue to the Common Pleas, as provided in section 21 of the Orphans’ Court Act of June 7, 1917, P. L. 363, 382.

From all of which we reach the legal conclusions:

1. That the paper, “Exhibit “A,” was a release of a claim or claims which petitioner had against decedent for moneys secured by her and (on) property she received, which he claimed he should have had from his father.

2. That it was not an assignment of his expectancy in her estate, and even if so intended, it fails for want of an adequate consideration.

3. That the petitioner is entitled to partition.

And now, Oct. 26, 1927, it is ordered, adjudged and decreed that the citation to show cause why an inquest in partition should not be awarded is hereby made absolute and partition is awarded as prayed for; the return of the commission or inquest to be made to the next term.

Prom S. M. Williamson, Waynesburg, Pa.