the attorney takes a wrong course, or fails to take the right course, im consequence of his ignorance or misunderstanding of the rules of procedure:" I Black on Judgments (2d ed.), section 340, page 524. See, also, Hoopes' Estate, 185 Pa. 167. We are, therefore, of opinion that these rules should be discharged.

Rules discharged.

In the Court of Common Pleas, No. 5, of Philadelphia County, No. 2017, January Term, 1901.

HUSBAND AND WIFE.

Becker vs. Becker.

When, in an action brought by a wife against her husband's father and mother for the alienation of her husband's affections, it appears that plaintiff went to New York with the son of the defendants, a minor of seventeen, and was married to him, and as soon as the defendants discovered the marriage, they consulted counsel in New York, and being advised by him that, under the laws of that state, the marriage was void, they instituted proceedings to have it annulled, and there is no evidence that the defendants prevented their son from returning to the plaintiff, nor that they had alienated his affections, a non-suit will be entered.

Mr. Eugene Raymond, for plaintiff.

Mr. Frank P. Prichard, for defendant.

Opinion by Ralston, J., April 30, 1904.

This was an action brought by a wife against her husband's father and mother for the alienation of her husband's affections. It appeared that the plaintiff had lived in the defendants' house as a servant for about three years. On September 25, 1900, the plaintiff went to New York with the son of the defendants, a minor seventeen years of age, and was married to him. They returned to Philadelphia, the plaintiff going to her brother's house, and her husband to that of his parents. On November 1, 1900, the plaintiff gave birth to a child. Before the parents discovered this marriage, the defendant, Caspar Becker, sent his wife to New York with their son, as they were very much opposed to his relations with the plaintiff. When they discovered that he was married to her, they consulted counsel in New York, and, being advised by him that under the laws of that state the marriage was void, they instituted proceedings to have it annulled. There is no evidence to show that the parents have prevented their son from returning to the plaintiff, nor that they alienated his affections. Indeed, they seem to have acted as paronts, with the welfare of their child in mind, should have acted; their son being but seventeen years of age, and they being advised that

his marriage was void, quite properly took steps to have it annulled.

There is no evidence whatever in the case which would have justified a jury in finding a verdict against the defendants, and consequently, the trial judge properly entered a non-suit.

In the Court of Common Pleas of Lackawanna County, No. 596, November Term, 1901.

DEMURRER TO PLAINTIFF'S STATEMENT.

City of Scranton vs. N. G. Robertson.

It was clearly the legislative intent that the assessments, authorized by the Act of May 18, 1871, P. L. 896, should be against both the property and the owner. Where a declaration fails to exhibit whether the assessment alleged is personal against the defendant or merely against the lands described in the statement, it is defective in a material particular and fails to disclose a cause of action. The provisions of the Act of 1871, relating to the City of Franklin, are essentially the same as those of Section 22, Art. 15, Act of May 23, 1889, P. L. 277, which relates to the government of third class cities.

While the Act of 1889 confers upon the city power to collect a paving assessment by common law action, it is to be noted that Section 22 does not purport to subject the assessment to that remedy unless it has been registered.

Registration must be proven upon the trial as an element of the city's case and, being necessary to be proven, it must be averred in order that the declaration may show a cause of action,

David J. Davis, City Solicitor for plaintiff.
Messrs. Welles & Torrey, for defendant.

Opinion by Newcomb, A. L. J., June 6, 1904.

This action is assumpsit on a claim for a paving assessment. The demurrer attacks the statement on three specific grounds, viz.: That it sets forth (1) no copy of the ordinance; (2) no copy of the assessment, both of which are therein referred to; and (3) that assumpsit will not lie on the cause of action as stated. After the demurrer was filed, at the request of the city, leave was granted to amend its statement by adding a copy of the ordinance. The statement was thus perfected in that respect, and the controversy reduced to the questions raised by the other two reasons.

The learned counsel for the city relies on the case of Franklin vs. Hancock, 204 Pa., 110, as authority for his contention that assumpsit is an appropriate remedy for the recovery of such assessment. An examination of that case shows that the right to sue in assumpsit was there rested on the fact that by the schedule of assessments it was made to

appear that there was a personal assessment against the owner as well as an assessment against the lot, which was held to be in accordance with the intent of the Act there under consideration, viź, the Act of May 18, 1871, P. L. 896, conferring upon the city of Franklin the power to make the assessments in that way; for the Court says, "It was clearly the legislative intent that the assessments authorized by the Act should be against both the property and the owner."

This, then, brings into view the force of the second ground of demurrer, i. e., the absence of any copy of the alleged assessment. We take that to mean "schedule of assessment." If that were exhibited it would appear whether the assessment alleged is personal against the defendant or merely against the lands described in the statement. The question is not answered by reference to the declaration. All that is there said is the other way. It avers that "in pursuance of said ordinance an assessment was regularly and lawfully made against the defendant's property," etc., "in the manner provided by law." If, therefore, as is contended by the city, the provisions of the Act of 1871 relating to the city of Franklin are essentially the same as those of Sec. 22, Art. 15, Act of May 23, 1889, P. L. 277, relating to the government of third class cities, under which the assessment in question here was made, it follows that the declaration is defective in a material particular and fails to disclose a cause of action.

But passing that and conceding that the Act of 1889 confers upon the city power to collect a paving assessment by a common law action, it is to be noted that the section relied upon doesn't purport to subject the assessment to that remedy unless it has been registered. Accordingly in Scranton, vs. Sturges, 202 Pa., 182, the Supreme Court said, "That Act" (May 23, 1889, supra) “by any fair interpretation bases the right of recovery on a lien filed; scire facias thereon will result in a general judgment by the terms of the Act, but a general judgment cannot be obtained on an unregistered claim by the common law action of assumpsit." Registration being essential to the maintenance of the action, it would necessarily have to be proven upon the trial as an element of the city's case. If necessary to be proven it must be averred, in order that the declaration show a cause of action. There is no such averment here. Neither is there anything to show the fact by intendment. The declaration is entirely silent on the subject of registration. Hence, we feel constrained to hold that both the second and third grounds of demurrer are well taken, and inasmuch as the city

has formally joined issue on the demurrer we are required to enter final judgment at this time.

The only other cause assigned for demurrer is the general objection that assumpsit will not lie in any event to recover a municipal assessment. We are not prepared to say that that is now an open question, but we do not undertake to pass upon it in this case.

The demurrer is sustained and judgment thereon directed to be entered in favor of the defendant.

In the Court of Common Pleas of Lackawanna County, No. 752, - November Term, 1899.

EXCEPTIONS TO REFEREE'S REPORT.

J. W. Mock vs. Andrew Rauschmayer.

The test of an alderman's jurisdiction is the sum demanded. Where it appears that the mutual dealings of parties in which the debits and credits exceeded three hundred dollars ($300.00) and it was neither alleged nor shown that any of the credits allowed by the plaintiff were fictitious, nor that he had relinquished any part of his account in order to reduce his claim to the statutory figure, the alderman would have jurisdiction. Where the plaintiff's claim has been reduced to or below the statutory figure, the justice has jurisdiction.-Collins vs. Collins, 27 Pa., 387. Mr. R. A. Zimmerman, for plaintiff.

man.

Messrs. O'Brien, Martin & Fitzgerald, for defendant.
Opinion by Newcomb, A. L. J., June 6, 1904.

This case is in court upon appeal from the judgment of an alderThe question raised by the exceptions is whether the alderman had jurisdiction under the statute limiting his jurisdiction to claims not exceeding $300. It appears by reference to the transcript that judgment was entered against the defendant in the sum of $193.84 for want of an affidavit of defense to the plaintiff's probated claim in accordance with the Act of 7th July, 1879, P. L. 194. Upon the trial before the Referee the defendant put this claim in evidence. It is thus made to appear that the sum claimed was the balance of an alleged account of the mutual dealings of the parties, covering a period of about two years, in which the debits and credits were itemized. The total of each side of the account exceeded $300. While there was dispute at the trial before the Referee as to certain credits to which the defendant claimed to be entitled, it was neither alleged nor shown that any of the credits allowed by the plaintiff in making up his account were fictitious, nor that he had

relinquished any part of his account in order to reduce his claim' to the statutory figure.

This would seem to bring the case directly within the rule laid down in Collins vs. Collins, 37 Pa., 387, where it was held that "the result of the authorities seems to be that where the plaintiff's claim, however large, has been reduced to or below $100 by direct payments, or by dealings that amount to, or are admitted to be actual payments the justice has jurisdiction. The sum demanded is the test of jurisdiction." This case was decided in 1861 and has been cited with approval ever since. We refer to a few of the cases: Bower vs. McCormick, 73 Pa., 427 ; McFarland vs. O'Neil, 155 Pa., 260: Zimmerman vs. Snyder, 9 Sup. Ct. 201.

The exceptions are overruled, the report of the Referee is confirmed, and judgment directed accordingly.

1

In the Court of Common Pleas No. 5, Philadelphia County, No. 235,
March Term 1904.

CERTIORARI.

Commonwealth vs. Nice & Schreiber.

The proper practice to recover the penalties imposed by sections 7 and 8 of
the Act of July 10, 1901, P. L. 643, relating to "renovated butter," is,
under section 7, for the justice to issue a summons in a civil action, and,
after hearing, to enter a judgment for the amount of the penalty and
costs; and, under section 8, to issue a warrant for the defendant, and,
after hearing, to hold him for trial if the evidence warrants it. When
the justice issues a warrant under section 8, and, after hearing, fines
the defendant $100 and costs, he exceeds his jurisdiction.
Mr. Charles L. Brown, for plaintiff.

H. R. Edmunds, for defendants.

Opinion by Ralston, J., April 20, 1904.

The record shows that on July 7, 1903, John M. Hall made an affidavit charging the defendants with offering and exposing for sale and selling "renovated butter," without having procured a license, in violation of section 7 of the Act of July 10, 1901, P. L. 643, and, further, that the deponent made the information for the purpose of enforcing the collection and payment of the penalty prescribed in the said section. Upon this affidavit the magistrate issued a warrant, and the defendant was arrested, and, after hearing, fined $100 and costs.

The 7th section of the act provides that "Every person who shall manufacture, sell, or offer or expose for sale, or have in his