CRIMINAL LAW-Continued.

4. Proceedings. Record must show that prisoner was asked before sentence, if he had aught to say why sentence of death should not be pronounced, or sentence will be reversed, and case sent back to afford prisoner an opportunity to plead in bar, etc, but this error will not reverse trial and conviction. McCue v. The Commonwealth. 449.

(b) Rape. 5. On question of consent How far child of tender years (under 14) excused from making outcry, if prevented by threats of great bodily harm. See Stevick v. Commonwealth 512

(c) Proceedings generally. 6. Indictment. Counts for felony and misdemeanor may be joined unless offences be repugnant in their nature and legal incidents In such cases, to testify under Act of 3 April, 1872, prisoner should ask to have charges separately tried. Stevick Commonwealth. 512.

7. Amendment allowed after writ of error brought See PLEADING (f) 294; (g) 423.

8 Assignment of error stating that sentence is illegal and void, when no reason therefor is set out on paper book will not be considered on appeal. Stevick v. Commonwealth. 512.

3. Act of 19 May, 1874, allowing bills of exceptions in criminal cases, not applicable to cases tried before its passage. Dromgold v. Commonwealth. 454.

DAMAGES. Measure of 1. In case, for refusal of vendee to receive goods sold him at auction, is difference between his bid and sum realized at a re-sale, together with cost of keeping goods and incidental expenses Kerr v. Shrader. 33.

2. Measure of, in Case, for negligent grading of a street by a borough, is immediate loss occasioned only Borough of Conemaugh v. Schwable. 55.

3. Measure of, caused by location of R. R, is difference of value of land before and after the laying of the road; but evidence showing the elements of computation, e 9., that additional fencing will be rendered necessary, may be offered to jury. R. R. Co. v. Gearbart. 237. R. R. Co. v. Madell. 287. And damage may be estimated at so much per acre. R. R. Co. v Madell. 287. Evidence of pre existing railway facili ties, and of increased rate of insurance, may be offered. R. R. Co. v. McKelvey. 338. Witness unacquainted with property at the time it was taken, competent R. Co v. Madell. 287. Defendant may rebut by prov ing plaintiff's own declarations as to value of his property. R. R Co. v. Ranck. 608.

R

4. Measure of, for breach of an entire contract, as for board and lodging for a time certain, is prima facie, the whole consideration, without deduction, but evidence may be given to show what would have been the actual profits of the bargain Feigel v. Latour. 335

5. Measure of, for land taken under Act of 15 June, 1871 increased value caused to outside land not taken, cannot be set off against value of that taken. Owner entitled to actual value, irrespective of benefit to remaining land. Root's Appeal. 151.

6. Vindictive. Measure of, in Case, for fraudulently obtaining possession of a chattel, for a less price than that agreed upon, by means of misrepresentations to vendor's agent; in such case vindicatory damages may be given. Rafferty v. Haldorn. 193.

7. Damages awarded for opening of street through owner's land, a personal claim of owner, and do not run with the land. Ten Brooke v. Iakhe. 235.

2. Acquiescence by creditor in debtor's assignment estops him from attacking its validity: and acquiescence may be inferred from matter in pais. See ESTOPPEL (5). Guiterman v. Landis. 622. 3. On a bond and warrant made to trustees for the benefit of creditors and conditioned for the payment of debtor's debts in instalments, but with no provision that the whole sum should become due on failure to pay any one instalment, judgment was entered. On petition of trustees and other creditors, minority creditors restrained from issuing execution on judgment for non-payment of their respective instalments, without trustees' consent. Bank's Appeal. 627.

4. Assignment, for creditors, what constitutes; a firm dissolved and sold out their business to certain purchasers, who paid therefor in notes drawn to each of the partners of the firm for his share. One partner had fraudulently indorsed the firm name on commercial paper for his own benefit, and the notes for his share of the purchase-money were placed by the purchasers, by common agreement, in the hands of a trustee to secure payment of the indorsements by him. Held, that this did not constitute an assignment. Gilmore v. Adams 76. 5. Where a debtor's note waives execution, and debtor afterwards assigns, reserving $300 under Act of 1849, creditor may issue execution against assignee on amount reserved. Myers' Appeal. 511. Numbers v. Shelly. 599.

6. Appropriation of payments. The law, in absence of specific appropriation, applies payment in manner most to creditor's interest, ir: espective of what might be to the interest of debtor's surety. Diehl v Myers. 628.

DECREE. What decree may be appealed from. See ERRORS AND APPEALS (f)

DEED Construction of. A grant to use and occupation for towing purposes is construed strictly, and gives no other right, such as to lay a R. R. track. Canal Co v. Betts 368

Cf. Phillips v RR Co. 633.

DEMAND. Suit prima facie evidence of. Vandike v. McConnel. 276.

DEVISE. See WILL.

DIVORCE. See HUSBAND AND WIFE (f).

DOWER. See HUSBAND AND WIFE (e). DRAFT. See BILL OF EXCHANGE.

See

EJECTMENT. 1. What is sufficient color of title to maintain ejectment as against a mere intruder. Brown v. Davis. 579.

2. Evidence of title under a parol gift must be direct positive and unambiguous. Sower v. Weaver. 499. 3. Where defence at law to a legal title is purely equitable, such evidence is required to support it, as would, were the defendant in the ejectment a complainant in equity, induce a chancellor to restrain the plaintiff at law from pursuing his legal title: and the Chancery rule that a denial by the defendant in the bill of its equity, will compel the complainant to sustain it by two witnesses, is to be applied. A husband and wife testifying together in husband's favor in such a case considered as one witness. Sower v. Weaver. 499.

4. Ejectment for purchase money. See ESTOPPEL (1). See also Evidence (35).

ELECTIONS. 1 Amendment of decree in cases of. See PLEADING (g) 207.

ELECTIONS-Continued.

2. If on certiorari it appear of record that less than the number of qualified electors required by the Act of 2 July, 1839, appear within thirty days, Common Pleas acquires no jurisdiction. Opinion of Court below on rule to show cause no part of record Barber's Appeal. 307. EMINENT DOMAIN. Title to land used for highway reverts to owner on its vacation. A railroad company cannot occupy it upon the vacation of the highway, without paying therefor to owner, even though under 13 of Act of 19 February, 1849 (general R. R. law), they have constructed another road in lieu thereof, unless they can show a special grant to occupy the highway. Trenton R. R. Case, 6 Whart. 25, and Snyder v. Pa. R. R. Co., 5 Sm. 340, distinguished. Phillips v. R. R. Co. 633. Cf. Canal Co. v Betts. 368.

EQUITY JURISDICTION. 1. Of Supreme Court in cases of injunction under 3 of ART. V. of CONSTITU TION, includes municipal as well as other corporations, but its exercise is discretionary. Wheeler v. Philadelphia. 178.

2. But does not include cases against corporations where the prayer for injunction is merely incidental to the main object of the suit. Fargo v. R. R. Co. 611.

3 Injunction granted by Common Pleas to restrain chief engineer, surveyor, and registrar of registry bureau of a county, from entering or registering, in future, transfers of real estate under letters patent fraudulently obtained from the Commonwealth. Morris v Boley. 303. 4. Common Pleas have, to restrain a violation of charter by any corporation. Sawer v. Gosser. 55.

5. Minority of members of a church may restrain a pastor and majority from violating charter. e.g., the pastor, if ineligible from officiating, and the majority from applying the revenues to his support. Sawer v. Gosser. 55.

6. Tax-payer's Bill, sustained where bill avers that credit of a municipality is to be illegally pledged, though it is uncertain whether actual expenditure may ensue. Wheeler v. Philadelphia. 205.

¡. Where devisee is disseized by co-devisee, a bill does not lie to restrain disseizin, or compel surrender of possession. Kennedy v Kennedy. 33.

8. Final injunction to restrain lessor of water power from cutting off supply for lessee's refusal to pay increased rent, where rights of parties under contract rendered doubtful by lessee's changes in his machinery, refused. Shroder's Appeal. 528.

9. Interlocutory injunction to preserve status quo of R. R. tracks on a highway until decision of another case before Supreme Court involving rights of one of the parties to lay such tracks-dissolved on appeal, in Passenger R. W. Co.'s appeal. 467.

10. To restrain excavations in adjoining premises, interfering with support of soil. See SOIL, SUPPORT of. 70

EQUITY PLEADING. Amendment of bill after replication filed and part of testimony in, will, it seems, be allowed under Act of 4 May, 1864. Dougherty's Appeal. 593

ERRORS AND APPEALS. (a) Quashing writ 1. Writ of error will not be quashed except for Visible error. Moodie v. Bank. 324.

(b) Generally. 2. If testimony excepted to be admissible for any purpose, the specific ground of objection must be stated in order to raise a valid assigment of error. Fox v. Randle. 229.

3 Act of 19 May, 1874, permitting hills of exceptions by defendants in criminal cases, does not apply to cases tried before its passage. Dromgold v. Commonwealth. 454.

ERRORS AND APPEALS—Continued.

5. Death of party pending appeal. Decree made under misapprehension of fact. A final decree had been entered on appeal, after hearing, against one originally a party to the suit, but who had died pending the appeal. Held that decree could not be amended after record remitted. Shisler's Appeal. 295.

(c) Errors in records, material facts not properly brought up. 6. Judgment reversed for insul ficiency of record when special verdict does not contain all facts necessary to decision of the case. Facts stated only in charge of Court below cannot be considered on appeal. Craven v. Gearhart. 257.

7. Where the question whether a judgment in the Common Pleas is the "final determination" of a suit, is raised as an issue of fact by the pleadings, the proof offered must be brought up by bill of exceptions, in order to enable the Appellate Court to pronounce upon its legal sufficiency. Quinn v. Baxter. 258.*

8. Finding of jury on special facts, alleged to constitute usury, cannot be reviewed on appeal, unless a binding instruction on the facts be prayed for, and brought up in the bill of exceptions. Kames v. Thomas. 189.

9. On appeals from orders of removal of paupers, taken under Act of 16 March, 1868, exceptions to decision of Quarter Sessions on questions of evidence, must he brought up by a bill of exceptions. Overseers v. West Buffalo. 209.

10. When admission of documents is objected to below, they must be produced on appeal, to enable Court to judge of their admissibility Clymer v. Thompson. 261. Kiel v. The Commonwealth 347.

11. Where errors assigned depend on evidence, it must be brought up in bill of exceptions, or else judgment will be affirmed. Petroleum Co. v. Clark. 75. Elbert v. Folwell. 228.

12. Court will not on appeal construe a written instrument not in evidence although its alleged terms are not denied. Flagg v. Searle. 290.

13. On appeal from refusal of Registers' Court to award a feigned issue, certified notes of testimony only will be looked at. Woodward's Will 177.

(d Errors on record where immaterial facts brought up. 14. In road cases errors assigned should not be as to matters of fact in the report, which Appellate Court cannot review. Salem Township Road. 54.

(e) Errors in law in record. 15. Separate writ of error necessary in each case. Hollohan v. McLean 262.

16. Where entry of non-suit is assigned for error, unless it appears by the record, that a motion to take it off was made below, writ of error will be quashed. Adams v. Adams. 279. Haverly v. Mercur. 348. Short v. Willing. 460.

(f) Proceedings where no writ of error lies. 17. No writ of error lies to discharge of a rue to open judgment, regularly entered. Hawkins v Weightman. 370. Landis v. Maher. 407.

18. Or to discharge of a rule restraining execution properly issued on judgment regularly entered. Kelly v. Cover. 467.

19. Or to discharge of rule to set aside execution. Defence, if any, must be taken by audita querela or a bill in equity. Gordinier v Billings. 422.

20. Dubitatur whether appeal lies to refusal of Court below to discharge a rule to show cause why judgment should not be marked to use of an intervening petitioner. Langdon v. Allen. 395.

21. What is a final decree, which may be appeale from. Confirmation of partition or of sale by Orphans' Court is, and is conclusive on all matters within its jurisdiction.

22. Decree on a bill and answer in a partition suit that

ERRORS AND APPEALS - Continued
parties are entitled, etc, as set forth in bill, and that
Master be appointed to make partition, is not. Robin
Bon's Appeal. 239.

23. Nor is decree sustaining demurrer for want of pro per parties, with liberty to amend. Bishop v Culver 272.

24. (g Writs purchased for delay. As to allow ance of dam ges Wire Writ of Chor ticked for delay, under Act of 25 May, 1874. See Blodgett v. Hagan 180.

25. Act not retrospective. Carson v. Hoopes. 246. ESTOPPEL. 1. Vendee under a defective judicial sale, by taking possession, affirms it, and is estopped, in a suit for the purchase-money, from setting up defect of title. Smyth v Neill 43.

2. A party dealing with an association as a de facto corporation for over two years e topped from denying its right to contract with him Grant v. Coal Co. 214.

3. Executor taking a bequest in trust for certain creditors is estopped from denying recital in will setting forth character of the debt. Montgomery's Appeal 279. See also GUARDIAN. 31.

4. Husband not estopped from showing the consideration of a note held by his former wife to have been that she would not resist a suit for divorce, although he made the usual affidavit in the divorce proceedings that the complaint is not made out of levity or collusion between him and the said wife." Kilborn v Field. 555.

5. Acquiescence in an assignment of his debtor's property by a creditor, estops him from afterwards attacking its validity. Guiterman v Landis 622

6. By judgment. Confirmation of proceedings in road case by Quarter Sessions, does not estop township from disputing claim for unauthorized expenses of commissioners incurred in such proceedings. Snow v. Deerfield Township 382.

EVIDENCE. (a) Generally. more than a mere scintilla to go to jury 462.

1. There must be Bank v. Bank

2. And withdrawal of evidence from a jury where there exists no sufficient evidence to justify a different finding is a technical and unsubstantial error, for which judgment will not be reversed on appeal Hali v Dun ham 487

3 In equitable ejectment, the chancery rule as to the weight of evidence must be followed, viz that denial under oath by party holding the legal title, must outweigh the opposite party's testimony unless supported aliunde See EJECTMENT (3) Doubted in Ballentine v. White, 66, and decided in Sower v Weaver. 499.

4. Extraneous evidence with which subject-matter of suit is inseparably connected. always admissible, . g, offer to prove payment of taxes on several tracts as a whole, one of which is the one in controversy. Coxe v. Deringer 397

5 Colored photograph admitted in suit on life policy to show healthy appearance of insured, in Ins. Co v. Schaible 369

6 For evidence as to damages caused by location of railroad, see DAMAGES, MEASURE OF (3): 237, 287, 338, and 608

A paper

(b) Judicial proceedings. 7. Record. found among papers of an od record, and proved to be in handwriting of plaintiff's attorney, together with the fact that an old exemplification of the whole record contained a copy of such paper, although a more recent exemplification did not, justifies presumption, in a case involving title, that the loose paper was part of the record, and had been accidentally detached. Tryon v Camble. 535.

8. Exemplification of a petition in bankruptcy and certificate of discharge no evidence, in a collateral suit, of appointment of assignee in bankruptcy. Alexander v. McCullough 609.

EVIDENCE-Continued.

9. In an action ex contractu against a lunatic, finding of inquest is only prima facie evidence of lunacy. Bank v Moore. 585.

10. Recital of a material fact in the narr. on which the judgment in a collateral suit is founded, eg, that in the note sued on there was a waiver of exemption, is evidence of the fact in another suit between same parties, relating to same subject-matter. Numbers v. Shelly.

599.

11. A judgment when opened unconditionally, cannot be given in evidence, in the subsequent progress of the cause, for the party who held it. Collins Frens 448. (c) Law of Foreign Country. 12. The official status of a person, cerutying the exemplification of a foreign statute, must itself be clearly and legally certified to. Ins. Co. v Rosenagle. 419

13. A foreign official, not a lawyer, competent to prove the existing and prior law of the country relating to the operations of his office. Ins. Co. v. Rosenagle. 419

14. Statutes of another State of the Union, certified to by the Secretary of State, under seal of State, sufficient evidence thereof.

And another such statute, referred to therein, need not be itself proven. Grant v. Coal Co. 214.

15. A certificate of the president of a foreign corporation, stating the object of its organization, etc. in compliance with a statute of the State in which it is, sufficiently proved by a copy thereof certified by the Secretary of State, under the seal thereof, without such secretary's certificate being itself certified to in due form. Grant v. Coal Co. 214.

(d) Public writings. 16. An unwarranted endorsement on a public record, not made in performance of the current business of the public custodian thereof, is no evidence of the fact appearing by such endorsement An entry "paid before sale" in a county treasu rer's sale book, following the regular entries of what is due on a certain tract, is such an endorsement, though proved to be in the handwriting of the treasurer, and is illegal and not evidence. Coxe v Deringer

397.

(e) Private writings. 17. Ancient documents; recitals in, evidence of pedigree; obvious mistakes of Scrivener do not detract from the value of such recitals as proofs of pedigree Carter v. Fishing Co. 252.

(f) Execution of papers. 18 Want of stamp on a promissory note does not of itself import absence of consideration. Long v. Spencer. 435.

(g) Secondary evidence. 19. Copy Where proof is by copy, as of an extract from foreign parish records, an examined copy duly sworn to by a competent witness is sufficient; each extract need not be separately copied, but a tabulation is sufficient. Ins. Co. v. Rosenagle. 419.

20 Proof of loss, parol evidence of written contract not admissible, without proof of loss of original paper. Philada v Stewart 242. Collins v. Smith. 556.

21. Semble that where original papers of a decedent are missing, examination of the papers of his executor who had access to them is necessary to admit parol proof of their contents. Coxe v. Deringer. 397.

22. What proof of search for lost letter held sufficient to admit paid proof of contents. Brown v. Davis. 579 23. Contents of documents of transitory interest may be proven after very slight proof of their loss. This principle especially applicable to family letters. On examination, under depositions, of witness abroad, his statement that he had not more the letters" sufficient to admit his testimony as to their contents. Ins. Co. v. Rosenagle. 419.

24. A lost lease may be proven by a recital thereof in record of an amicable action in ejectment and judgment therein. Harned v. Livezey. 226.

EVIDENCE - Continued

As to effect of material recital in a record, see also supra (10). Numbers v. Shelly. 599.

25. Proper evidence of the dates of warrants and surveys of tracts of land, is by certified copies thereof from the Surveyor General's office. Dates on a draft of contiguous tracts certified from land office not competent evidence. Hall v. Dunham. 487.

26. Parol evidence to prove the existence (and contents) of original papers, such as tax receipts, after proof of their loss, while it is admissible "is exceptional in its character and should be submitted to a jury under carefully guarded and measured instructions as to the precise point in dispute." Coxe v Deringer. 307. 27. Parol evidence to vary written instrument. See MORTGAGE.

28

(h) Parol testimony to explain instruments. A promise made by one party in consideration of the execution of a written instrument by the other, may be shown by parol. Shughart v. Moore. 598.

29 Parol evidence admissible to define the grant of a fishery "as it has heretofore been conducted." Harvey v. Vandergrift 629

(i) Entries. 30. Book entries. Since Act of April 15, 1869, the testimony of the party to the suit making the book entry is the principal evidence. Barnet v Steinbach 335 Hostetter v. Fenstermacher 466. 31. The book entries admissible to corroborate party's oath. Hostetter Fenstermacher. 466

Though standing alone they would be on a different footing. Barnet v Steinbach. 335.

And admissible as memoranda to refresh memory of witness making them, though unintelligible when alone. Henry Martin. 277

32. Book entries made by a decedent against his estate admissible to explain away a defence to a claim against it. Lee v. Welsh. 453,

33. Other entries Inventory of goods destroyed by fire, made out from books and papers in possession of the insured, evidence for him against underwriter, though not contained in appraisement made by the latter's agent. Ins. Co. v O'Hanlon. 33

(k) Presumptions. 34. A recital in an order of court for a judicial sale that all "legal representatives" were served, will be presumed to include a widow, especially after lapse of 31 years. Vensel Colmer. 56

35. In an Orphans' Court sale, the omission in the petition to aver the price to be a fair one, or to show how the minor's interest was acquired, does not, in the absence of actual fraud, render title acquired thereunder. invalid. Smyth v. Neill. 43.

36. Presumption in favor of regularity of proceedings in Orphans' Court, as affecting title. Roy v. Townsend. 293.

37. Recognizance; entry of forfeiture of, establishes fact that all proper preliminaries are observed. Fox v. The Commonwealth. 243.

38. In absence of express testimony, law presumes that a person performed his legal duty, e. g., stopped and looked at a railroad crossing R. R. Co. v Weber. 567. (1) Usage and Custom. 39. Of a trade, are presumed to be known to those engaged therein, and when offered to interpret a contract between parties in same trade, it is not necessary to prove all the elements of a custom. Carter v Coal Co. 384.

40 Evidence of usage, when derogatory to rights at common law, must be so clearly proven as to leave no doubt; it is error to submit it, when contradictory, to jury. Adams v. Ins. Co 78.

(m) Hearsay, 41. Reputation. General reputation of insanity in neighborhood no evidence against party suing on a contract made by lunatic. unless knowledge of it brought home to him. Bank v. Moore, 585.

EVIDENCE-Continued.

42. Newspaper announcement of death of a party not admissible to prove reputed name at the time of death, in order to rebut presumption of marriage. It is evidence of the fact of publication only. Freno v. Freno.

165.

43. Pedigree, when an incidental question, may be proven by a surviving member of the family. Ins Co. v. Rosenagle. 419.

(n) Declarations. 44. To become part of res gestæ, declarations must have been made at the time of the act they are supposed to characterize. Grim v. Bonnell. 596.

45. In assumpsit for goods sold and delivered, evidence of declarations made by defendant to a third party, showing that defendant had purchased them from him, together with a credit in defendant's books for their price to such party, is admissible as part of res gesta. Grim v. Bonnell. 596.

46. Declarations of agent not made in presence of principal, incompetent to prove fact of agency. Grim v. Bonnell.

596.

47 Creditor's acquiescence in assignment of debtor may be proven by his declarations to third parties, without showing authority to communicate them to debtor or his assignees Guiterman v. Landis. 622.

48. Declarations made after sale, by an original vendor to any subsequent vendee of same property, at the time of the latter's purchase, admissible against latter to show he was thus informed of true boundary line. St. John v. Wehinger. 320.

49 In a suit against a decedent's estate, evidence of declarations by decedent not made in plaintiff's presence, inadmissible. Lee v. Welsh 453.

50 As to declarations of prisoner, in homicide case, see CRIMINAL LAW. 449.

(0) Admissions. 51. Evidence of wife's admissions that she had received from her husband all the moneys she was entitled to from her father's estate admissible after her death to discharge her husband. Liggett's Appeal. 353.

(p) Acts. 52. In feigned issue under sheriff's interpleader Act, evidence of the sale of the goods to defendant under an execution against claimant, subsequent to the awarding of the issue, is admissible. Whitney v Moore. 274.

(q) Competency of witness. 53. Party to a suit against a firm not competent as to a transaction between himself and a deceased member of the firm. Hanna Ray 65

54. In a suit brought by a decedent's estate, on a note, defendants cannot prove admissions made by a former administrator of the estate as to facts occurring in decedent's lifetime and which he if living might have contradicted, such admissions incompetent under the Act of 1869. Long v Spencer. 435

55. Evidence of a competent witness admissible for any purpose in the suit, when the specific object of it is not called for by the opposite party. St. John v. Wehinger. 320.

56. Competency of witness, if depending on a disputed question of fact, may be left with jury with instructions to consider his testimony or not, as they find the fact. Lee . Welsh. 453.

(r) Examination of witnesses. 57. Offer of evidence should show sufficient relevancy to direct the mind of the Judge to the aspect in which it is pertinent. Clymer v. Thompson. 261.

58 Cross-examination. In trover for & bond, by assignee against assignor, assignor's agent may be crossexamined as to execution of assignment and as to subsequent conversations between himself and assignee, though assignor not present. Leonard v. Wynn. 189.