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A husband can become a prosecutor in a criminal action against his wife's
paramour based upon the adultery in which she was a participant.-Com, vs.
Vance.-179.

ATTACHMENT.

A distributive share in an estate can not be attached in the hands of an
executor or administrator by proceedings before a Justice of the Peace. . There
is no act of assembly which gives him such jurisdiction. A justice can not,
under the law, issue an execution without a previous scire facias, when the
judgment is more than five years old.--Vosburg & Washburn vs. Ida M. Miller,
Admx., &c., Garnishee of Howell Miller.-64.

A foreign attachment will be dissolved, unless the non-residence of the de-
fendants is averred in the affidavit of cause of action, although the writ issued
against them as such.

A garnishee may move to dissolve a foreign attachment for an irregularity
apparent on the record.-Gibney vs. Pennsylvania Motor Car Company.-154.

George A. Walker vs. Annette Reynolds et al.-246-See Garnishee.

Exceptions to Report of.

AUDITOR.

The wife of a non-contesting husband is a competent witness to prove her
claim in the distribution of his assigned estate.

Clause "c." Sec. 5. of the act of May 23, 1887, P. L. 158, only applies where the
husband is claiming the property or is on the side of the creditors as against the
wife.

Clause "e." Sec. 5, of said act, does not apply where the husband has been de-
clared a weak-minded person.

Notes under seal were held by a woman against a man whom she subsequently
married. The only objection to her claim by creditors was want of consideration.
Held, that as to these claims in the absence of an averment of fraud or mistake
she was not in the first instance required to prove consideration.-Sunderland's
Estate, 190.

Appeal of Dunmore District from report of Auditors-206.

Rule to Discharge Defendant.

BAIL, Common.

The defendant cannot be held to bail in an action of slander, without proof of
spécial damage, or that the defendant is about to leave the state or go out of the
jurisdiction of the court.

The act of 1903, P. L. 49, adds a new element of damage in actions for libel,
viz: "Damages for the physical and mental suffering endured by the injured party
or parties." But this is not special damages within the meaning of the law, but
general.

Special damages are such as the law will not ihfer from the nature of the
words themselves. They must, therefore, be specially claimed in the pleadings and
evidence of them must be given at the trial.

Recovery for injuries to feelings and mental sufferings are recoverable as
general damages. When special damages are not claimed a defendant should be
discharged on common bail.-Ezra H. Ripple vs. Richard Little, 193.

Rehm vs. Askew et al., 142.

BOND-Defective.

The purposes of the act of April 19, 1901, P. L. 88, were (1) to fix a time within
which a forthcoming bond must be filed, (2) to make certain the condition of such
bond, (3) and to relieve the sheriff and his sureties from liability from taking a re-
plevin bond which proved insufficient at the time of rendition of judgment, although
sufficient at the time it was given.

The sufficiency of the forthcoming or counter bond must be determined by the
sherin, and his responsibility for taking an insufficient one has not been changed
by the act of 1901.-Hill vs. Mervine, 184.

BUILDING AND LOAN ASSOCIATIONS.

Plaintiff took a mortgage dated June 17, 1902, on land described identically as
in defendant's deed. February 7, 1901. a mechanic's lien was filed against de-
fendant.

The premises sought to be bound by the lien are not described in any particular
like those in the mortgage except as to the foundation of the building.

When the lien was filed there was no house to describe as the lien was for "ex-
cavating a cellar and the masonry for a foundation."

The description in the lien does not designate the block nor on what side of the
street the supposed lot is located. On the face of the papers the description in the
lien cannot be identified with the lot described in the mortgage.

At a foreclosure proceeding the mortgagee was the purchaser at a price insuffi-
cient to pay both claims. The alleged lien was prior in time to the mortgage. Its
validity was attacked by the plaintiff.

Held: That the lien is defective because of the insufficient description of the
building and erroneous description of the locality under the provisions of Sec. 12
of the Act of 16th June, 1836, relating to mechanic's liens.-The Security Building
& Loan Savings Union y Jesse G. Colvin, 4.

Defendant held title by deed. in the name of "Michael Grecula." Mortgagee
had securities drawn to correspond with the name as found in the deed. A sheriff
sale took place on a judgment entered on a bond accompanying the mortgage.

The fund realized from said sale is contested by a judgment creditor, whose
judgment is prior in time to that of the mortgagee and was confessedly the first
lien on the land.

The latter judgment was indexed and docketed against "Mike Greczula.” Either
of the liens is sufficient in amount to take the whole fund. The Christian name of
the defendant as signed is either "Majk" or "Majh."

Held: That "Majk" is quite well known in this locality to be the Polish and
Slavish equivalent to the English "Mike" and so pronounced.

As to "Greczula" and "Grecula," the rule of idem sonans applies.

It is the creditor's duty to see that his judgment is correctly indexed. This is
so because the function of the index is what its name implies-a pointer. It points
to the record proper; the judgment docket which is the real head and source of
information regarding liens.

Where there is a variance between the signature to an instrument and the
name as docket in the entry o fa judgment thereon, the searcher may not ignore
the docket entry and govern himself by the signature as the real source of con-
structive notice.

A judgment docket contains the record evidence of liens which is constructive
notice to all interested. The index to this docket has not the same force and effect.
Its purpose is to point the way to the docket, but not to take its place. The
variance between the index and the docket does not differ in principle between the

signature to an instrument and the name as docketed in the entry of judgment thereon. The German Building & Loan Association No. 9 vs. Michael Grecula, 28.

After a sheriff's sale has been confirmed by the payment of the purchase money and the acknowledgment and delivery of the deed, it is too late to set aside the sale, and compel the purchaser to deliver up the deed to be cancelled.

It is the policy of the law that there be a time fixed when all irregularities are cured and the law fixes the acknowledgment of the deed as the time. The rule is that after acknowledgment and delivery of the deed the proceedings have passed beyond the grasp of the court.

It has been held that the acknowledgment of a deed may be stricken off and the sheriff's sale set aside for fraud, if application be promptly made, where the deed has not been delivered; or if application be made before the expiration of the term.

This reason does not apply where the application is made by the purchaser who voluntarily surrenders up his deed to the court for cancellation, and no intervening rights are involved.

One of the important functions of the Court of Common Pleas is to supervise the execution of its own process, in order to prevent injury and injustice to its suitors. A purchaser at sheriff sale has the right to waive the effect of the delivery of a deed to him, and to surrender it for cancellation with the permission of the Court.-State Capitol Building & Loan Association vs. Michael Roche, 41.

CAPIAS.

Under the Act of July 9, 1901, section 6, P. L. 614, a capias ad respondendum may be served either by arresting the defendant and holding him to bail or by serving the writ as a summons. When the defendant enters bail after the issuance of the writ, without a previous arrest, he waives the formality of the arrest, and he cannot afterwards be arrested under the writ, nor can either party complain that no arrest was made. It follows that a writ issued against a minor defendant, who, under the act, is not liable to arrest, must be quashed, when bail was entered for the defendant in the sum required without an arrest.-Powell vs. Perkins, 150. CASE STATED.

Hamill vs. Andresak, 152.-See Taxes.

CERTIORARI.

A case begun before an alderman and partly heard by him cannot be determined by his successor. Any other interpretation given to the Act of March 20, 1810, 5 Sm. L. 161, Section 16, would lead to absurd results.-N. W. Abbey vs Joseph Hannick et al., 62.

Commonwealth vs. Nice & Schreiber, 148.

Under a fair and reasonable construction of the act of 22d March, 1814, the defendant's affidavit, that the title of land would come in question, was presented in due time, even though the plaintiff had sworn a witness.-W. W. Baylor et al. vs. J. W. Tiffany, 161.

The act of 22d March, 1814, and the supplement of July 2, 1901, P. L. 608, requires that the affidavit ousting the jurisdiction of justices of the peace must be made and security tendered before the trial, and the making of the affidavit without tendering security amounts to nothing and is of no effect.-Baylor et al vs. Tiffany,

163.

COMMONWEALTH.

Challenges for cause are unlimited in number so far as cause is shown, and

unrestricted as to time when they shall be exercised, so long as the oath has not been tendered to the objectionable juror. This is stated to be the rule in homicide cases as to the time during which the right may be exercised, and there is no reason why it should not be applied in all criminal cases. The exercise of such challenge, however, is not governed by statute, but is a common law right.

A peremptory challenge is one which may be made or omitted according to the judgment, will or caprice of the party entitled thereto without assigning any cause or reason therefor, it being, a mere right to reject but not to select jurors. In a case of misdemeanor, it did not exist at common law.

In this state the right of peremptory challenge, its extent and the time and manner of its exercise are purely statutory in all cases, either of felony or misdemeanor, except that by virtue of the most recent enactment on the subject in cases not exclusively triable in the Oyer and Terminer, the court may, by general rule, fix the time and manner of making the challenge different from that prescribed by the act.

The act of 1901 requires that all "challenges shall be made and assigned by the commonwealth and defendant respectively when the juror is called." The party must avail himself of this privilege as it comes to him in turn. If the juror is not rejected by the party having the prior right he is necessarily passed to the other party. No special formality is required nor observed in so doing. Anything to give notice to the court and the opposing counsel that the juror is turned over to the other side is competent to indicate his acceptance and a waiver of the right of challenge.-Commonwealth vs. David B. Evans, 59.

Commonwealth vs. Weiss, 91.

Commonwealth ex. rel., P. J. Moore, Inspector of Mines, etc.. vs. The PricePancoast Coal Company, 111

Commonwealth ex. rel., W. R. Lewis, District Attorney, vs. Frank Becker, Sheriff, 115.

men.

A district attorney found a citizen charged with the crime of bribing councilThere was a warrant out for his arrest. The warrant could not be served because the officer could not find the defendant, after diligent search. The statute of limitations would run out before the next grand jury.

Held: That under these circumstances it was the bounden duty of the representative of the commonwealth to bring the matter before the court, and ask permission to present an indictment to the grand jury, then sitting, without a preliminary hearing or a previous binding over of the said defendant to appear at court.-Commonwealth vs. Patrick J. O'Boyle, 133.

Commonwealth vs. Nice & Schreiber, 148.

A verdict which imposes costs on a prosecutor but fails to name him is futile and inoperative and will be set aside although, before the jury was sworn, the name of the prosecutor was endorsed, by request, upon the face of the indictment. -Commonwealth vs. Resh, 155.

Commonwealth vs. Schulte, 158.

Commonwealth vs. Miller, 174.-See Indictment.

Commonwealth vs. Vafice, 179.-See Arrest of Judgment.

Commonwealth vs. Richard Little, 271.

Commonwealth ex. rel., John J. McAndrews vs Edward A. Jones. County Con-
troller, 328.-See Mandamus.

Commonwealth ex. rel., L. M. Evans, etc. vs. The Morss Hill Coal Co., 364.
DEMURRER.

Plaintiff brought suit for two months' salary. Court decided in favor of de-

fendant.

Subsequently plaintiff brought suit against same defendant for one year's
salary, including the two months in the other case.

The defendant filed a plea in abatement and the plaintiff demurred to the plea.
Held: That while authorities are numerous as to what may be taken advan-
tage of by a plea in abatement; nowhere can a case be found that a former suit
finally adjudicated, although between the same parties and for the same cause of
action, can be pleaded in abatement.-John A Neuls vs. City of Scranton, 31.

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 essen-
tially 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 assess-
ment 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.-City of Scranton vs. N. G. Robertson, 145.

Duffy vs. Mell. 167. See Affidavit of Defence.

John Burke vs. The Wilkes-Barre & Scranton Railway Company, 260.

Nelson A. Gardner vs. S. G. Shoemaker, 262.-See Justice of the Peace.

Commonwealth ex.rel., John J. McAndrews vs. Edward A. Jones, County Con-
troller, 328. See Mandamus.

Application for License.

DETECTIVE.

The act of May 23, 1887, relative to the appointment of private detectives is
merely directory. The necessity of appointing and the qulifications of the applicant
are within the discretion of the court.-Dickerson's Petition, 291.

Rule for a Decree.

DIVORCE.

Where there is no personal service of a subpoena the libellant's testimony, as
to the desertion, is clearly incompetent under the statute and must be disregarded.
The act approved 28th of April, 1903, P. L. 326, which is a supplement of the
act of 26th April, 1850, does not give the courts jurisdiction of causes of divorce
arising in a foreign state or country, unless the parties have a domicil in the state
where the proceedings are instituted.

Domicil is the true test of jurisdiction.

Even if the legislature undertook to give the courts jurisdiction where the
parties to be affected had no domicil in the state. such jurisdiction would not be

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