Court of Common Pleas of Luzerne County. CAFFREY, assigned, v. CARLE. 1. On a rule to open a judgment, unliquidated damages arising from a contract not a part of the judgment in controversy cannot be introduced to reduce the amount of the judgment. 2. Representations, when to be regarded as no more than the expression of an opinion. Rule to show cause why judgment should not be opened, and defendant let into a defense. The opinion of the court was delivered October 8, 1883, by RICE, P. J.-The defense to this judgment, in all material particulars, rests upon the uncorroborated testimony of the defendant. He is contradicted by the plaintiff, and his testimony is inconsistent with the terms of the written agreement, which was drawn up to express the final views of the parties after a series of conferences and negotiations, and is also inconsistent with the testimony of Mr. Downing, who drew up the paper at the request of the parties. It is quite possible that there was an agreement between the parties as to the hiring of the plaintiff's team, but the weight of the parol testimony and the written agreement itself show that it was not part of the consideration of the note and judgment in controversy, nor of the agreement for which the note was given. This being the case, the unliquidated damages for which the plaintiff may be liable upon a breach of the agreement of hiring cannot be off-set here. It is not alleged that the execution of the agreement of sale was procured by fraud, nor that it does not contain all that the parties intended that it should. In the absence of fraud and mistake, and of an express warranty, the alleged representations by the plaintiff that there was ice enough to supply the defendant's customers, especially as the means of knowledge as to the quantity were equally accessible to both parties, and as the defendant did not purchase until he had in fact examined for himself, must be regarded as no more than the expression of an opinion, and not as the means which produced the bargain. Hence, under the well recognized authorities, they do not constitute an equitable defense to the judgment. The rule is discharged. Court of Common Pleas of Schuylkill County. SCHAEFFER v. SCHAEFFER. After testimony has been taken before an examiner in a divorce case and filed in court, it is too late to demand an issue. Rule for an issue. The opinion of the court was delivered September 4, 1882, by PERSHING, P. J.—The subpoena in this case was issued November 14, 1881, and served on the defendant, who appeared. On February 6, 1882 (after the return day, not before, as suggested by defendant's counsel), W. K. Woodbury, Esq., was appointed examiner to take the testimony. Both the parties, with their respective counsel, appeared before him on February 14, when the testimony of all the witnesses offered, being those of the libellant alone, was taken. On May 2d, notice was given to counsel for the defendant that the depositions would be filed in court, which was done on May 15. On May 18, the respondent filed his answer, denying generally the charges contained in the libel, on which answer the above rule was obtained. The libellant contends that the demand for an issue came too late after the taking of the testimony and the filing of the examiner's report in court. In Allison v. Allison (10 Wr. 321), it was held that a party in a divorce proceeding has a right to an issue to try disputed facts, but he is bound to exercise his right reasonably and with vigilance. Justice Thompson said: "The taking of testimony before a commissioner was a step in the hearing before the court also. I will not say that, after that, the party might not be entitled to an issue. But if anything appeared in the course of the testimony which made an issue desirable, he ought at once to have withdrawn, giving the opposite party notice of his intention to apply, and make his application to the court at the earliest possible moment thereafter. If, on the contrary, a party be in court by appearance, or there is a service on him, and he makes no application for an issue until after the testimony has been taken and the court is about to determine the case, it is too late then to demand an issue. Expense of testimony having been incurred in a regular course of proceeding, to postpone the determination then would be to incur new expense, and to produce injurious delays oftentimes." We think it unnecessary to refer to other cases of the same tenor. In the case in hand, it appears that between the time of the taking of the depositions and their filing in court, three months passed by. No offer was made during this time by the respondent to take testimony, nor was an issue demanded. We all think this application is made out of the proper time. Rule discharged, and issue refused. Court of Common Pleas of Schuylkill County. MORGAN V. KLITSCH, Executor, &c. The court has power to order the satisfaction of a judgment only when fully satisfied that it has been paid. Rule to satisfy judgment. The opinion of the court was delivered February 12, 1883, by BECHTEL, J.-The above application is made under the Act of Assembly, approved March 14, 1876, P. L., page 7. To warrant us in making this rule absolute," it should appear to the satisfaction of the court that said judgment has been fully paid," says the act. This language would seem to indicate that the power conferred should be exercised only in cases in which it is clear that the judgment in question has been paid. Horton v. Hoff, 4 W. N. C. 380. The evidence does not make it clear that the judgment has been paid, but presents such disputed questions of fact as we think should be sent to a jury. There is now pending a scire facias to revive, and all questions can be disposed of when this is tried. We therefore discharge this rule without prejudice to either side. And now, February 12, 1883, rule discharged. I. 2. Court of Common Pleas of Luzerne County. RINEHIMER, assigned, v. DUNN, et al. An assignee for value of a judgment is not affected by subsequent proceedings, to which he is not a party, attaching the debt as that of his assignor. The defendant cannot offset the judgment thus obtained against him in the attachment against the assignee of the judgment debt attempted to be attached, without proof that the assignment was fraudulent, or that he did not have notice of it. Neither will these facts be ground for opening the judgment. Rule to show cause why judgment should not be opened. RICE, P. J.-That this rule must be discharged will become apparent upon a brief statement of the facts: On April 8, 1879, Henry Rinehimer, the legal plaintiff, obtained a verdict against the defendants. On the same day he assigned his interest in the verdict and judgment to H. B. Payne, Esq., who, after deducting his fees for the trial of the case, was to pay over the balance to Alfred Fairchild and Samuel George. Aside from the fees due to Mr. Payne, the consideration for the assignment was an antecedent indebtedness of Rinehimer to Fairchild and George. Prior to this A. B. Leuder, one of the defendants, held two judgments on the docket of a justice of the peace against Rinehimer, one in his own right, and the other in his right as administrator. On April 9, 1879, Leuder issued execution attachments on these two judgments and had himself summoned as garnishee in each case. Before the trial of the suits on the attachments Leuder had notice from Mr. Payne that the judgment in the present case had been assigned to him, and notice was also given to the justice on the trial. Notwithstanding these facts, Mr. Leuder prosecuted the attachment suits to judgment against himself, and now asks to have the present judgment opened. These being the facts, the cases cited to show the authority of the courts to set off one judgment against another, do not apply. The judgments in the attachment suits may be conclusive against the parties to them, but they are not conclusive against the assignee of the present judgment who was not a party to them. Therefore, whatever the form of proceeding may be, his right under his prior assignment cannot be overturned without proof that the assignment was fraudulent, or that the defendant did not have notice of it. Neither of these facts appear. The rule is discharged. Court of Common Pleas of Luzerne County. HIRAM CASTNER V. WILLIAM FANNING. 1. A summons issued and was served in debt: the defendant pleaded a setoff, after which the summons was changed so as to read "trover." Held, that the proceeding was unauthorized, and the irregularity could be shown by evidence taken on depositions. 2 Quare: Has a justice power to amend by changing the form of action? Certiorari. The opinion of the court was delivered April 4, 1881, by RICE, P. J.-On the face of the record returned in obedience to this writ, we discover no error or irregularity which would warrant us in disturbing the judgment. Generally the court cannot go outside the record to correct what may seem even to be an injustice. But there are exceptions, and this case seems to come within them. The admitted exceptions are thus stated by Judge Pearson in Shell v. McConnell, 1 Pears., Dec. 27, "You may show that the magistrate had or had not jurisdiction; that the case was pending before another justice. You may also show corruption or partiality on the part of the justice; or that his docket was falsely kept. The court must go into inquiries per testes to show that the magistrate has exceeded his jurisdiction, or acted partially or corruptly, or has made up a false record. To refuse this would, in many cases, shut out the light." See also Knight v. Parry, 1 Ash. 221, December, Jones ibid 215. In Lacock v. White, 7 H. 495, Black, C. J., in collaterally speaking of the authority of the court to reverse on certiorari, says: “But |