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kinds of process: One is by summons and the other by attachment. Whether a person desiring to bring an action before a justice shall demand a summons or attachment orally or in writing, we think the action is not begun until the process is actually issued by the justice. It is not the order for the summons or attachment, but the issuance thereof, in a justice's court, that operates in arresting the act of limitations. In this case, the summons not having issued until the 2d day of June, 1910, more than three years from the time the cause of action accrued, to wit, 24th day of May, 1910, the act of limitations had run before the action brought. And the act of limitations having been pleaded, the plaintiff is not entitled to recover in this action, and the request of the defendant for binding instructions in favor of the defendant should be granted.

was

Gentlemen of the jury, you are directed to return a verdict for the defendant. Verdict for defendant.

(231 Pa. 362)

died in 1909 and her children were substi tuted as defendants. Christina R. Lindsay, the wife of R. M. Lindsay, was the owner of the premises in dispute. On January 18, 1895, she and her husband and one William Richmond signed a promissory note containing a confession of judgment and waiving inquisition for the sum of $7.000, payable to the Merchants' & Mechanics' Bank, the plaintiff in this action. Judgment was entered on the note in the common pleas of Lackawanna county on January 21, 1895. A writ of fieri facias was issued on the judgment on December 18, 1899, and by virtue thereof the sheriff sold the land in controversy to the Merchants' & Mechanics' Bank, the plaintiff in the execution. This action of ejectment was brought August 28, 1906, to recover the property purchased by the plaintiff at the

sheriff's sale.

On the trial of the cause the defendants offered to show that at the time the judgment note was signed by Christina R. Lindsay she was a married woman, the wife of R. M. Lindsay, and that the note was given as collateral security for the indebtedness of the New Buffalo Coal Company. The offer was objected to by plaintiff's counsel, but was admitted for the time being. Subse10,quently the court changed its ruling, sustained the objection to the offer, and directed the jury to return a verdict for the plaintiff. The exclusion of the testimony is the only matter assigned for error.

MERCHANTS' & MECHANICS' BANK OF
SCRANTON v. POORE et al.
(Supreme Court of Pennsylvania. April
1911.)

a mar

1. HUSBAND AND WIFE (§ 232*)-CONTRACTS
OF MARRIED WOMAN-PRESUMPTIONS.
Under Act June 8, 1893 (P. L. 344),
ried woman may contract as if she were unmar-
ried with the exceptions noted in that act; and
the unrestricted right to make contracts has
changed the former presumption of the invalid-
ity of her contracts.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 844-848; Dec. Dig. § 232.*1 2. JUDGMENT (§ 481*)-Collateral ATTACKCONFESSION OF JUDGMENT BY MARRIED WO

MAN.

Since the passage of Act June 8, 1893 (P. L. 344), there is no presumption that a judgment confessed by a married woman was void, and, it being voidable only, it cannot be collaterally attacked in ejectment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 917; Dec. Dig. § 481.*]

At common law a judgment note executed by a married woman was void, and real estate sold on the judgment entered thereon passed no title to the purchaser. The judgment was open to collateral attack, and could be impeached on the trial of an ejectment brought to recover the premises sold by the sheriff. But the Acts of June 3, 1887 (P. L. 332), and 1893 entirely changed the common law in this respect.

[1] By the act of June 8, 1893 (P. L. 344), a married woman was given the same right and power as an unmarried person to acquire, own, possess, control, or dispose of all Appeal from Court of Common Pleas, kinds of property, but requiring her husband Lackawanna County. to join in conveying or mortgaging her real She was also given the same right estate. as an unmarried person to make contracts, with the exception that she could not become an accommodation indorser, maker, guarantor, or surety for another. The act also conferred upon her the power to dispose of her property by will in the same manner as if she were unmarried.

Action by the Merchants' & Mechanics' Bank of Scranton against Marion Poore and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER,

JJ.

Cornelius Comegys and George S. Horn, for appellants. Charles H. Welles and William W. Lathrope, for appellee.

It will be observed that under the act of 1893 a married woman occupies the same position with regard to her property and the right to make contracts as if she were unMESTREZAT, J. This was an action of married, with the exceptions noted. Formerejectment brought by the plaintiff against ly her capacity to contract was exceptional Christina R. Lindsay to recover a piece of and her disability general. Now the disabilland in the city of Scranton. The defendantity is exceptional and her capacity general;

the burden being on her when she seeks to avoid her contract to bring it within one of the few exceptions. Patrick & Co. v. Smith, 165 Pa. 526, 30 Atl. 1044. The unlimited power over her property and the unrestricted right to make contracts have changed the former presumption that her contracts were void. A note or other obligation given by a married woman is now presumed to be valid, and, if she alleges that it is invalid, the burden is upon her to show that it comes within the exceptions to her right to contract made in the statute. It follows, and we have so held, that a judgment confessed by a married woman is no longer prima facie void; at most, it is voidable, and on her application may be set aside only when it appears to have been unauthorized by the act.

[2] It is a settled rule that a judgment regular on its face and entered by a court of competent jurisdiction cannot, in the absence of fraud or collusion, be impeached collaterally in any court by the parties or privies thereto, or by a stranger. Since the passage of the act of 1893, there being no presumption that a judgment confessed by a married woman is void, it is prima facie valid, and being only voidable it cannot be attacked in a collateral proceeding.

The learned counsel for the defendants contend that the judgment was open to attack on the trial of the ejectment because the plaintiff in the execution who became the purchaser of the real estate in dispute had actual notice and knowledge that the note on which the judgment was entered was given as collateral security. Conceding this to be true, it is not sufficient to permit the defendants to attack the judgment in the collateral proceeding. The judgment was regular on its face, and did not disclose that the defendant was a married woman, Such

ment is void.

an attack can only be made when the judg If the judgment is voidable that is, if the note was given as collateral security which is unauthorized by the act of 1893-the defendants could only get relief by an application to the court to open or strike it off. Until such a proceeding was instituted, the payee, notwithstanding his knowledge that the note was given for a purpose prohibited by the act of assembly, had the right to assume that no attack would be made upon it. So far as the record discloses, the judgment was valid, and hence the sheriff's deed conveyed a good title to the purchaser. If the judgment was invalid, by reason of the note having been given as collateral security, it was simply voidable and not void, and therefore was not the subject of attack on the trial of the ejectment brought to recover the real estate conveyed by the sheriff's deed. The learned judge was right in directing a verdict for the plaintiff.

The judgment is affirmed.

(231 Pa. 325)

WEAVER v. PHILLIPS. (Supreme Court of Pennsylvania. April 10, 1911.)

1. LIBEL ANd Slander (§ 7*)—ARTICLE LIBEL OUS PER SE.

dition of morals not forbidding voters from acA newspaper article, reflecting on the concepting money in connection with politics, and alleging that plaintiff received an appointment to an office for a political activity resulting in the defeat of his own brother, is not libelous per se.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*] 2. DISMISSAL AND NONSUIT (8 58*)—NONSUIT

-LIBEL SUIT.

Where, in an action for libel, the article complained of is not libelous per se, and there is no allegation of special damages, nonsuit is proper. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. 88 134-139; Dec. Dig. § 58.*]

Appeal from Court of Common Pleas, Lycoming County.

Action by Byron A. Weaver against H. G. Phillips. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Hart, P. J., in refusing to take off the nonsuit, filed the following opinion:

"This is a motion to take off nonsuit, entered at the close of the plaintiff's testimony in an action of trespass for libel. The defendant was and is the publisher of a newspaper published in the borough of Montoursville, in this county, called the Republic. The plaintiff was, at the time of the publication complained of, postmaster and a citizen and voter in that borough. On October 26, 1908, the defendant published in the Republic the article declared upon and complained of, which is as follows:

"The Same Old Story.

In some

""Who was surprised at the local names appearing in that list of disseminators printOne familiar ed in the Sun this evening. with the operations of the Boss, and his suckers, guessed all the names before they were made public. It is not to be believed that all the fellows got money. cases, it is believed, the money went to somebody else, and the other fellow's name appears. In brief, there is nothing new or surprising so far as local conditions are concerned. Things have been equally as bad within our borough ever since the Boss was made postmaster as a fitting reward for defeating his brother, who was the regular Republican nominee for sheriff. When treason is rewarded, instead of punished, conditions soon become too bad for comparison.'

"The article referred to, as published in the Sun, is fully set forth in the plaintiff's declaration, and shows that the name of Byron A. Weaver, plaintiff, does not appear in the list of disseminators referred to in the publication complained of, nor does the article complained of state that it does. It is

ence to some extrinsic matter which will show the sense in which they were understood.' In Price v. Conway, 134 Pa. 340, 19 Atl. 687, 8 L. R. A. 193, 19 Am. St. Rep. 704, Justice McCollom says: 'An innuendo cannot introduce new matter, or enlarge the natural meaning of words, or put upon them a construction they will not bear.'

complained by way of innuendo in the plain- the pleadings but also in the proofs, refertiff's declaration that the words imply that the plaintiff has corruptly solicited and received money from one Elias Deemer, a candidate for Congress, for the purpose of corruptly and unlawfully influencing his own vote and the votes of others at the primary election. And it is claimed further by way of innuendo that the article complained of means that the plaintiff had agreed to receive from some one unknown the office of postmaster as a reward for his vote and influence against his brother, George W. Weav-law will not infer from the nature of the er, when a candidate for sheriff of Lycoming county. It does not seem to us that either of these inferences can legitimately be drawn from the publication complained of.

[1] "It would be placing an undue restraint upon the public press to prohibit publication of the statements filed by candidates for office showing their expenditures as required by law, as one of the manifest purposes of the act requiring it is publication, and there is nothing in the article complained of that goes further than to reflect upon the condition of morals that does not forbid the voter from accepting money in connection with politics, even though received for purposes expressly authorized by law. The inference cannot be legitimately drawn from the article that the plaintiff received money to influence his vote or the vote of any one else. The innuendo relating to his receiving the appointment of postmaster as a reward for opposing his brother for sheriff is, if anything, still further remote and unwarranted. It is not and never has been considered a reflection upon a voter to receive an appointment to office as a reward for political activity, even though such activity might result in the defeat of a brother. No law forbids or prohibits it. It might be some evidence of an unnatural estrangement; but such is not a crime, nor does it involve moral turpitude. The article does not say, nor can any such inference be drawn therefrom, that the plaintiff opposed his brother and voted against him by reason of a promise that he should receive as a compensation therefor the appointment of postmaster. This would be charging him with an offense

which is made a misdemeanor. No such charge is made by the defendant, and there is, therefore, nothing in the publication that can be construed so as to warrant or support the innuendo declared upon.

[2] "There is no allegation of special damages in the pleadings, nor is there any proof of such. 'Special damages are such as the

words themselves. They must therefore be specially claimed in the pleadings, and evidence of them must be given at the trial.' Ripple v. Little, 5 Lack. Jur. 193; 13 Am. & Eng. Ency. of Law (1st Ed.) 434.

"We are satisfied, after a careful examination of the evidence and the law applicable thereto, that we would not have been justified in refusing the defendant's motion for nonsuit. And now, February 19, 1910, motion to take off compulsory nonsuit is overruled."

Argued before FELL, C. J., and MÈSTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

John E. Cupp and Mortimer C. Rhone, for McCormick, Jr., for appellee. appellant. Seth T. McCormick and Seth T.

PER CURIAM. The judgment is affirmed, on the opinion of the learned judge of the common pleas.

YERGER v. HUNN.

(231 Pa. 245)

HUNN v. ARONSON et al. (Supreme Court of Pennsylvania. April 10, 1911.)

1. APPEAL AND ERROR (§ 753*) - EQUITY — STATEMENT OF ERRORS.

Where the record on appeal in equity fails low a brief statement of errors as alleged, as reto show that appellant filed in the court bequired by equity rule 92, the appeal will be quashed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*1

2. APPEAL AND ERROR (8 733*)-ASSIGNMENT OF ERROR-SUFFICIENCY.

An assignment of error is bad where it merely alleges error in sustaining plaintiff's bill without setting forth the final decree.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3025-3027; Dec. Dig. § 733.*]

3. APPEAL AND ERROR (§ 725*)-ASSIGNMENTS OF ERROR-SUFFICIENCY.

"In Pittsburg, Allegheny & Manchester Passenger Railway Co. v. McCurdy, 114 Pa. 554, 8 Atl. 230, 60 Am. Rep. 363, Justice Clark says: 'Words, it is true, are not construed in mitiori sense. It is sufficient if in their plain or popular meaning they are libelous; but when they do not in themselves convey the meaning imputed to them [Ed. Note.-For other cases, see Appeal and in the innuendo, or where they are ambigu- Error, Cent. Dig. §§ 3002-3005; Dec. Dig. § ous or equivocal, there must be, not only in | 725.*]

An assignment of error that alleges generally that the court erred in dismissing defendant's exceptions, and not setting them forth, is bad.

4. APPEAL AND ERROR (8 731*)-ASSIGNMENTS | ises were situated in the bed of the proof Error-SUFFICIENCY.

An assignment alleging error in refusing to consider request for findings of fact, and not setting forth the findings, is bad.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3017-3021; Dec. Dig. 731.*]

5. APPEAL AND ERROR (8 1009*)-FINDINGS OF TRIAL COURT-REVIEW.

Findings of fact by the judge in an equity suit, authorized by the evidence, will not be reversed except for manifest error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 8

1009.*]

[blocks in formation]

TION OF CAUSES.

jected Parkway, on the city plan, and that
they were subject to the terms of an ordi-
nance for the widening of Arch street. The
60 days allowed by the agreement for set-
tlement expired on October 4, 1908. It was
arranged that the settlement should be made
on October 3d, at the office of the title com-
pany; but a postponement was made until
October 6th and on that date there was a
second postponement until the following day,
but no settlement was then made. On Octo-
ber 9th, the vendor tendered an executed
deed to the agent for the purchaser, but
settlement was not made. The court below
found as a fact that this was a legal tender
of the deed to the representative of the de-
fendant. No agreement in writing to extend
the time of settlement, as required by the
On No-
terms of the contract, was shown.
vember 20, 1908, Jules E. Aronson executed
and delivered to George W. Yerger, Jr., an
assignment of all his right, title, and inter-
est in the agreement of sale with Hunn,

Where two bills in equity are tried together under an agreement that the evidence taken shall apply to both bills but that separate find-trustee; and this assignment was filed in the ings shall be submitted in each case, and the testimony and the questions involved are the same, a single adjudication is not error if the court finds on the facts separately and enters separate decrees.

[Ed. Note. For other cases, see Equity, Cent. Dig. 781; Dec. Dig. § 370.*]

Appeal from Court of Common Pleas, Philadelphia County.

Bills by George W. Yerger, Jr., assignee of Jules E. Aronson, against Ezekiel Hunn, Jr., and by Ezekiel Hunn, Jr., against Jules E. Aronson and others. From decrees dismiss

ing the first suit and sustaining the second, George W. Yerger, Jr., and others appeal.

Affirmed.

office of the recorder of deeds at Philadelphia. On February 8, 1909, Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, filed a bill in equity in the court of common pleas, No. 3, of Philadelphia county against Aronson, Yerger, et al., praying that the assignment by Aronson to Yerger should be surrendered and canceled, and marked null and void on the record. March 10, 1909, George W. Yerger, Jr., assignee of Jules E. Aronson, filed a bill in equity against Ezekiel Hunn, Jr., trustee as above, praying for specific performance of the agreement of sale. This bill was filed in court of common pleas No. 3, and the two cases were put at issue and tried together.

On

ings, and opinion in the former case, and sustained the contention of Ezekiel Hunn, Jr., substituted trustee, etc., and held that the assigned agreement should be surrendered and canceled on the record. Exceptions were filed on behalf of the defendants, and were dismissed by the court, and a final decree made on July 12, 1910, in accordance with the findings of the trial judge.

It appeared that on August 5, 1908, Ezekiel Hunn, Jr., trustee, entered into a written | The trial judge filed his adjudication, findagreement with A. Florence Yerger, as agent for Jules E. Aronson, for the sale of the premises at No. 1508 Arch street, Philadelphia, for the sum of $33,000, of which $500 was paid in cash at the signing of the agreement, $7,500 was to be paid at the settlement, and the balance of $25,000 was to remain on first mortgage for three years. The premises were to be conveyed "free and clear of all incumbrance and easements," It was the intention both of the court and the title was to be such as would be and of the parties that the adjudication, findinsured by any reputable title company of ings, exceptions, and order dismissing them Philadelphia. The agreement was to be per- should apply to both cases; and, in accordformed within 60 days of its date, which ance with this understanding, the bill praytime was to be of the essence of the agree- ing for specific performance of the agree ment, unless extended by mutual consent in ment was dismissed. Appeals were taken by writing indorsed thereon. It further appear- the defendants in the former case, and by ed that the purchaser applied for a policy the plaintiff in the latter case, the former of title insurance, and the title insuance appeal being No. 238, and the latter No. 237, company issued its settlement certificate for of the present term. The appeals involved the property which showed as exceptions not the same questions, and were argued toto be covered by the policy, that the prem-gether.

Argued before FELL, C. J., and BROWN, | are to be given the effect of a verdict of a MESTREZAT, POTTER, and MOSCHZISK- jury, and will not be reversed in the absence ER, JJ. of manifest error. Myers v. Coal Co., 228 Pa. 444, 77 Atl. 629; Sears v. Trust Co., 228 Pa. 126, 77 Atl. 423.

A. Florence Yerger and John McClintock, Jr., for appellants. John G. Johnson and James Wilson Bayard, for appellee.

POTTER, J. We have here two appeals, from decrees entered by the court below in separate cases, upon the same finding of facts. One of the bills filed prayed for the cancellation and surrender of an article of agreement, for the sale of real estate, and for an injunction to prevent it from being recorded. The other bill prayed for the specific performance of the contract of sale. It appears from the record that time was of the essence of the contract, and that settlement was not made by the proposed purchaser within the limit fixed by the agreement. The court below found as a fact that the vendor stood ready and willing to perform his part of the agreement, and tendered an executed deed to the representative of the purchaser. He dismissed the contention of the appellants that they were not obliged to make settlement until certain defects in the title were made good by the finding that these objections were not suggested, or relied upon at the time; but that for some other undisclosed reason the purchaser was unwilling to perform his agreement to take the property. It is apparent that the material questions before the trial judge were of fact, rather than of law.

[1] We are unable to find from the record that appellants have filed in the court below in either case a brief statement of the errors alleged to have been made in the decree appealed from, as required by equity rule 92. This omission would be sufficient ground for quashing the appeals. Wilson v. Keller, 195 Pa. 98, 45 Atl. 682; North v. Pantall, 197 Pa. 303, 47 Atl. 610; Hughes v. Cooper, 42 Pa. Super. Ct. 594.

[2] In the appeal at No. 238 the first assignment of error is bad in that it merely alleges error in sustaining plaintiff's bill, without setting forth the final decree. Johnston's Estate, 222 Pa. 514, 71 Atl. 1053.

[3] The second assignment is defective in that it merely alleges generally that the court erred in dismissing defendant's exceptions, and does not set them forth.

[4] The third assignment is bad, in that it alleges error in refusing to consider requests for findings of fact, and does not set forth the findings.

[6] In the fifth assignment, complaint is made of the dismissal of an exception to a. finding of fact as set forth in an extract from the opinion of the trial judge. This is not properly assignable for error. V. Boyer, 224 Pa. 369, 73 Atl. 438.

Seltzer

In the appeal at No. 237 the assignments are subject to much of the criticism applicable to those in the other appeal.

[7] The tenth assignment alleges that the court below erred in dismissing an exception to the effect that the trial judge was in error in confusing, and treating as one suit, the two cases of Hunn v. Aronson, and Yerger v. Hunn, the agreement of counsel being "that the evidence taken here shall apply to both bills, but that separate findings be submitted in each case." It is true that the trial judge filed but one adjudication, although the facts under each bill were found separately. It would have been better practice to have filed separate adjudications. But the testimony was the same, as were the questions involved, and separate decrees were entered. We do not see that the appellants were in any way harmed by the filing of one adjudication instead of two. cases in every material respect turn upon questions of fact which have all been determined, upon sufficient evidence, by the court below, in favor of the appellee.

The

The assignments of 'error are all dismissed, and the decree of the court below in each case is affirmed.

(231 Pa 367)

LLOYD et al. v. FENDICK. (Supreme Court of Pennsylvania. April 10, 1911.)

1. TRIAL (§ 368*)-CASE STATED.

A case stated should disclose facts necessary to an intelligent judgment, and whatever is not distinctly agreed upon therein will be taken not to exist, and it is error to base a judgment on facts not set forth therein.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 880; Dec. Dig. § 368.*]

2. TRIAL (§ 368*)—ACTION FOR PRICE-CASE

STATED.

Where, in an action for the price of real estate, a case stated provides that if the court is of the opinion that the plaintiffs have a good title then judgment to be for plaintiffs, if not then for defendants, and it appears by the will under which plaintiffs claim that a fourth interest in the property passed to a brother of plaintiff, and his share is not accounted for in the case stated, judgment must be given for defendant.

[5] The fourth, sixth, seventh, and eleventh assignments are to the dismissal of exceptions filed by defendants to the findings of fact by the trial judge. These findings were based upon evidence which, if credited by the trial judge, was sufficient to sustain them; and under the authorities, they awanna County.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 880; Dec. Dig. § 368.*]

Appeal from Court of Common Pleas, Lack

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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