ness, and purchased the bulk of his stock from time to time from the said plaintiffs, for which in accordance with their said contract they received the individual notes of defendant at four months, and which said notes have always heretofore been paid at maturity. That on the 23d day of November last, defendant attended one of the plaintiffs' regular and advertised sales by auction, and purchased of said plaintiffs for himself under said contract and bargain, a lot of boots and shoes, which were knocked down to and bought by and sold to him in separate lots and at various prices, amounting altogether to the sum of $265, and on the next day when defendant called to give his note at four months to said plaintiffs, and take away the goods so purchased by him, the plaintiffs refused to accept his said note therefor or to deliver the goods, so purchased, to him or to sell to him any further in a cordance with the terms of their said agreement, contract and bargain with this deponent. And defendant further says that his whole business was predicated on the faith of the contract and bargain of the plaintiffs above named to sell and deliver to him, continuously, their goods on his individual note at four mouths, and by their not complying with their part of the said contract, deponent has lost the said specific goods purchased by him on the 23d day of November last, which were worth to deponent at that time and since, at least $391, and by their continued failure and refusal to supply him with their goods, in acordance with their contract, defendant has been subjected to great loss and inconvenience, and has lost his whole time and the money invested by him in permanent fixtures, both of which were given to creating a demand for the goods of said plaintiffs at retail, and which demand he cannot otherwise supply than from the plaintiffs, and which money, time, and labor, he would not have invested in the said business but for the express contract of said plaintiffs with him to supply him on credit as aforesaid; and deponent says that by the failure of plaintiffs to keep their said bar gain and contract with him, he believes he has, in addition to the inconvenience, suffered an actual loss exceeding $1200. All of which deponent believes to be true and expects to be able to prove on the trial of this cause. Judgment was entered against the defendant for want of a sufficient affidavit of defence (reported 2 WEEKLY NOTES, 445). The defendant took this writ, assigning for error the entry of said judgment. B. P. Wrigley, for the plaintiff in error. Unliquidated damages can be made the subject of set-off. Hunt v. Gilmore, 9 Sin. 450. T. J. Diehl, contra, did not appear. Jan. 22. THE COURT. The Judges of this Court being equally divided in opinion upon the merits of the affidavits of defence in these three cases, the judgment in each case stands affirmed. PER CURIAM. WILLIAMS, J., absent. [See Sitgreaves v. Griffith, 2 Weekly Notes, 705.] New trial-Mental confusion of a witness on the stand preventing him from stating the facts of an occurrence at which he was present-Not ground for a new trial. Motion for a rule for a new trial. This was an action to recover damages for the killing of a mule by defendant's servant. On the trial plaintiff called a witness who alleged he had seen the collision between the plaintiff's team and that of defendant; that it occurred on the north track of the Market Street Passenger Railway, about fifteen or twenty feet east of Market Street bridge, and that the plaintiff's team had not been off the north track from Twenty-third Street to the bridge. The defence was that the accident occurred on Market Street, east of Twenty-third Street, and was due to the negligence of plaintiff's driver. Two witnesses were called who testified that they saw plaintiff's team cross Twenty-third Street, on the south side of Market Street, between the south track and the curb; that the mule's leg was then broken, but did not then see defendant's wagon. Another witness, a young man named John Duffy, was then called by defendant. He was in the defendant's wagon when the collision occurred. On the stand he became very much confused, and, when asked where the accident took place, said at Twenty-third and Market Streets. This contradicted defendant's other witnesses, and was a total surprise to defendant. The jury found for the plaintiff. The affidavit of the witness Duffy was produced in support of the present motion, stating that the accident, in fact, occurred between was due to the negligence of plaintiff's driver; Twenty-second and Twenty-third Streets, and that he was so nervous and confused when on the stand that he did not state the truth. Abraham M. Beitler, for the motion. Where a party in a cause is surprised by the testimony of a witness who does not state before the jury what he has previously asserted, and where that witness subsequently, in an affidavit, states his mistake and his willingness to correct it, the Court should grant a new trial. Ainsworth v. Sessions, 1 Root, 175. Guy . Hanly, 21 Cal. 398. Rodriguez v. Comstock, 24 Id. 85. Steele's Ex'rs v. Moxley, 9 Dana, 137. This witness was a most material witness. | for or on account of the deponent, nor did he ever He not only misstated the facts, but he flatly hold him out to the world as his partner. contradicted the other two witnesses for the de The deposition in support of the present rule set forth that the building had been completed according to the original design in 1871, and since then had been sold three times prior to 1873, when the work had been done for which this claim was filed. That the contract for the work had been made with Doerr, who conveyed the property before the claim was filed. Alexander, for the rule. Under the Act of June 16, 1836 (Purd. Dig. 1025), and the supplement of March 24, 1849 (Purd. Dig. 1029), there can be no lien for work done under these circumstances. McCree v. Campion, 5 Philad. 9. There cannot be a lien for repairs under the Act of Aug. 1st, 1868 (Purd. Dig. 1028, pl. 21). Booth, contra. Bucknor v. Pitman et al. Partnership What constitutes—Affidavit of defence. Rule for judgment. Assumpsit on a book account for materials furnished defendants, being a bill for paints and painter's materials. The affidavit of Bates, one of the defendants, set forth that he never ordered or received any of the goods charged, nor did any one ever order or receive them for or on his account; and further averred that he built a fence near the Centennial grounds in May, 1876, and entered into a contract with Pitman (the other defendant) by which the latter was to solicit advertisements for the fence, for which he was to receive half of what was made; that neither of them was to place any advertisement on the fence, but only to sell the right to other people to do so; and that Pitman was not authorized to buy any article or articles Cheney, for the rule. The contract entered into makes the defendants partners Shakespeare, contra. Rule discharged. Mar. 10, 1877. C. P. No. 1. Meany v. Kleine. The plaintiff filed the following statement, upon which he took judgment for want of an affidavit of defence : J. Kleine, To D. B. Meany, Dr. $10.00. To professional service in defending the said defendant in the bill of indictment of which the above is a true copy (copy of indictment attached). The affidavit in support of the rule suggested that the statement filed was not sufficient to entitle plaintiff to judgment. Rex, for the rule. Book entries of an attorney are not within the law. Atwood v. Calverley, 1 WEEKLY Notes, 82. Rogers v. Scullins, 2 Id. 535. Hale's Ex'rs v. Ard's Es'rs, 12 Wr. 22. Bley, contra. Rule absolute. C. P. No. 2. Hopper v. Hemphill. Jan. 27, 1877. Affidavit of defence law-Loan or advance of money-An advance by a broker of the purchase-money of stock, bought by him for a customer, not within the Act. Rule for judgment for want of a sufficient affidavit of defence. The copy filed was an affidavit of loan, setting forth, that in pursuance of a request by defendant, accompanied with a deposit by him of $500, as a margin, the plaintiff bought and advanced the purchase-money of certain stock for the defendant; and subsequently, at defendant's order, sold the same at a loss, over and above the said margin, of $745.48, which sum defendant promised to pay, and for which this suit was brought. The affidavit of defence suggested that the affidavit of loan was not such as to entitle plaintiff to judgment. Hannis, for the rule, contended that the plaintiff's affidavit set forth a sufficient “contract for the advance of money," within the 14th section of the Act of March 11, 1836 (Purd. Dig. 496, pl. 16). Counsel, contra, not heard. Rule discharged, the Court remarking that The affidavit of the witness was produced in the Act applies only to a loan or advance of support of the motion, setting forth fully the facts, money as money, and not to cases ordinarily and stating that he became so nervous and concovered by a common count for money paid and fused on the stand that he said what he did not expended for the defendant's use. intend to say. [See Barr v. Ambler, 2 WEEKLY NOTES, 262: De Castro v. Castos, 1 Id. 156; Ohman v. Winsmore, ante, 157.] C. P. No. 3. Held v. Clemens. Jan. 27, 1877. Amendment-Affidavit of defence law-Mistake in copy filed Amendment at bar not permissible to supply omission in the copy filed Practice-Jones v. Gibson, ante 329, followed. Rule for judgment for want of sufficient affidavit of defence, and motion to amend copy filed. Assumpsit on a promissory note. The plaintiff filed what purported to be a copy of the note sued upon, which copy contained no date. The affidavit averred that the copy filed was insufficient. Plaintiff's attorney produced the note, which was dated, and stated that the date was omitted from the copy by inadvertence. He asked leave to amend the copy at bar, and thereupon take judgment, as no defence upon the merits was shown. Alex. R. Cutler, contra. Unless the plaintiff makes out a prima facie case, by filing a sufficient copy, no affidavit of defence on the merits is required. A mere suggestion of the insufficiency of the copy is enough to prevent judgment. The statutory period for filing the copy having expired, it is now too late to amend. C. A. V. Feb. 2, 1877. Rule discharged, and motion to amend not granted. [The above decision is contrary to that in Guth v. Anderson, decided by the same Court (C. P. No. 3), ante, 133, but is in accordance with that in Jones v. Gibson, C. P. No. 4, ante, 329, in which THAYER, P. J., delivered a carefully considered opinion, which will probably settle the practice in such cases hereafter.] C. P. No. 3. Wilmarth v. Tull. Mar. 6, 1877. New trial-Mental confusion of a witness on the stand preventing him from stating the facts. Motion for a rule for a new trial. Assumpsit on a promissory note. At the trial the defendant called his brother and offered to prove by him certain facts, as a defence, relating to the making and endorsement of the note. When asked by defendant's counsel to state what he knew in reference to the case, the witness became confused, and said he knew nothing about the note. The verdict was for the plaintiff. William A. Manderson, for the motion. The witness states now that he became fright ened, and he narrates the facts exactly as I opened to the jury, and as he had repeatedly told them to me. LUDLOW, P. J. We will grant the rule. Hereafter we will determine the question which arises here. We do not decide that the defence is a good one, but we place the case on the argument list, and it is possible we may discover something in it which may enable us to grant a new trial. [See Wetherill v. Hanly, ante, 473.] C. P. No. 4. Feb. 24, 1877. Wasserman v. Bank, Garnishee of Sommers. Garsed v. Bank, Garnishee of Heilbrun. Attachment execution—Leave given to pay into court money attached by simullaneous `writs, and interpleader awarded. Rules for leave to pay money into court, and for an interpleader. These were two distinct writs of attachment execution, in different suits by different plaintiffs, attaching a fund deposited in the Centennial National Bank. The answers of the garnishee to the interrogatories filed in each case, admitted an amount of money deposited with the bank, in the name of L. Sommers (one of the above-named defendants), but suggested that the same was claimed as the property of the other defendant, Heilbrun; that the two writs had been served simultaneously. The garnishee disclaimed any interest in the subject-matter, and prayed that it might pay the money so attached into court, and that an interpleader be awarded. A. J. D. Dixon, for the rules, referred to— Ware v. Western Bank, 1. T. & H. Pr. 433. THE COURT made both rules absolute. Orphans' Court. Whitehead's Estate. Feb. 23, 1877. Citation to administrator d. b. n. to file account of deceased executrix-Practice. Sur petition for citation to administrator d. b. n. to file an account. E. T. Whitehead died, leaving a will by which he appointed Elizabeth Ditche his executrix and legatee. The executrix died without having filed [O'BRIEN, J. There is certainly nothing in her account, and an administrator d. b. n. of decedent's (Whitehead's) estate was then appointed. A petition was then filed by a creditor of decedent for a citation to compel the administrator d. b. n. to file the account of the deceased executrix. W. H. Livingood, for petitioner. Eo die. THE COURT. We cannot compel the administrator d. b. n. of E. T. Whitehead's Estate to file the account which Elizabeth Ditche, as executrix, was bound to file. The proper mode of proceeding is to present a petition for a citation against her executors to file the account which she ought to have filed. The petition is dismissed. Per HANNA, J. Stewart's Estate. March 21, 1877. Guardian-Act March 29, 1832-Construction of-Administrator of deceased guardian, not surety, should be cited to file account Practice Application by prochein ami irregular― When new guardian should be appointed. Sur petition of Henry C. Stewart and Mary C. Stewart, by their mother and next friend, Mary C. Stewart, for a citation to surety of deceased guardian, to file account. The petition set forth that on the 20th January, 1865, James Morrell, Jr., was appointed guardian of the petitioners, Henry C. Stewart and Mary C. Stewart, and the said James Morrell, Jr., gave as surety in this Court, one William C. Stevenson, and that the said James Morrell, Jr., has never filed an account. The petition further suggested the death of James Morrell, Jr., and alleged that the petitioners had been, and are still, without the allowance named by this Court for their support, and prayed "that a citation be awarded to said Wm. C. Stevenson, said surety of deceased guardian, to file a just and true account of the guardianship." the Act to compel a surety to file the account of his principal, although cases might possibly arise where the guardian being dead, or out of the way, the ward would be powerless. HANNA, J. The account should be filed by the administrator, and when the estate is settled, if there is any indebtedness you might proceed against the surety.] This Court has all the powers of a Court of Chancery to reach the consciences of parties, guardians, sureties, and every one else having knowledge of the accounts and doings of a guardian. Commonwealth to the use of Raser v. Raser, 12 A petition for a citation by a prochein ami is be found, but the Act contemplates a continuing Even if the citation were regular, the law has remained as adjudged in Bowman v. Executors. of Herr (1 Pen. & Watts, 282), that at the death of the guardian the guardianship ends, and the administrator may be compelled to settle, and pay over any balance in his hands. As the principal cannot be held until a devastavit be shown, the surety cannot. Commonwealth to use v. Moltz, 10 Barr, 527. March 24, 1877. THE COURT. The petition in this matter, being to compel the filing of the account of a deceased guardian, is presented by the minors through their next friend. In this instance the party cited to file the account of the deceased guardian is his surety, and not his administrator, who in law is his personal The answer of William C. Stevenson set forth, representative. We think the latter is the proby way of demurrer, that he was advised that per party to file the account, and against whom "said petition is defective in this, that it should the citation should issue. If he refuses or neghave been presented by a guardian or guardians lects, then, under the Act of Assembly, an audiof said petitioners duly appointed by this Court tor will be appointed by the Court to state the to succeed the said James Morrell, Jr., deceased." The answer also averred that the said James Morrell, Jr., had regularly during his life paid all sums as ordered by this Court; that an administrator of his estate had been appointed, and that respondent had no knowledge of said Morrell's affairs, books, papers, or accounts. H. Galbraith Ward, for the petitioners. The Act of 1832, sec. 57 (Purd. Dig. 1106, § 22), does not compel us to cite the administrator. The Act is vague, but a citation to the surety, if the guardian is dead, is within its contemplation. account. The proper practice, however, would have been to first procure the appointment of a new guardian, who would then appear for, and prosecute any proceedings necessary to establish the rights of the minors. This is apparent from the fact that upon a settlement of the account of the deceased guardian, the balance of the minor's estate could only be paid to a successor when appointed and qualified. For these reasons the petition must be dis Pittsburgh on the third Tuesday of February, eighteen hundred and seventy-four (1874), for a mayor to serve three years from February 1, eighteen hundred and seventy-five (1875), at which election Wm. C. McCarthy, the respondent, received a majority of all the votes cast, and having been duly qualified he entered upon the duties of the office on the 1st day of February, 1875. On the third Tuesday of February, eighteen hundred and seventy-five (1875), a second election for mayor was held in alleged pursuance of the new Constitution, at which the relator, Christopher Magee, received a majority of all the votes cast, and was, by the Judges of the Court of Common Pleas, declared duly elected, but the respondent, Wm. C. McCarthy, on demand being made, refused to deliver up the office, claiming to be entitled thereto until the 1st day of February, 1878. On August 28, 1875, by agreement of parties, a writ of quo warranto was issued to test the right of McCarthy in the premises. A demurrer was filed, averring that the election of the third Tuesday of February, eighteen hundred and seventy-four (1874), was premature and In the city of Pittsburgh, before this provision took effect, the charter election was fixed for the first Tues-unauthorized. day of December in each year, the term of office beginning on the first day of February following. After argument, judgment was entered on the demurrer in favor of defendant. The relator took Held, that the Constitution merely set back the this writ, assigning for error the entry of said time of election from December to February in the same year. Error to the Common Pleas No. 1, of Allegheny Co. Quo warranto, on the suggestion of Christopher Magee, against Wm. C. McCarthy, to show by what authority he exercises the office of Mayor of the city of Pittsburgh. The material facts of the case were as follows: judgment. John H. Bailey, Geo. W. Guthrie (with whom was J. K. P. Duff'), for plaintiff in error. The question is, was the election of the third Tuesday of February, 1874, held at the proper time? At common law there must be a vacancy in the office existing at the time of the election, for one cannot be elected to a corporate office in reversion. An election to fill an anticipated vacancy is not valid unless expressly authorized by the charter or by statute. Dillon on Municipal Corp. p. 161. If elections to offices in reversion are permitted, what is to prevent elections, years in advance, of a long list of officers each to succeed the other, thus practically denying, to future generations, the right to choose their own officers? Prior to and at the time when the new Constitution of Pennsylvania went into operation, the various laws governing municipal elections in the city of Pittsburgh provided, in effect, that the annual election for members of councils, and the triennial election for mayor, should be held on the first Tuesday of December, the mayor elect to enter upon his official duties for a term of three years on the first day of February ensuing his election. | Under the provisions of these laws, James Blackmore had been elected and entered upon his official If the respondent's position is correct, he was duties for the term of three years, to expire the elected to fill a vacancy which would not occur first day of February, eighteen hundred and till nearly a year thereafter. Such a position seventy-five (1875). If no change had been cannot be maintained, in the absence of an express made in the law, the successor to Mayor Black-provision of the law, especially as a contrary inmore would have been elected on the first Tuesday of December, 1874. In accordance with Art. VIII. Sec. 3, of the new Constitution, to wit: "All elections for city, ward, borough, and township officers, for regular terms of service, shall be held on the third Tuesday of February," an election was held in tention is deducible from section 24 of the schedule which provides that existing officers should hold over until their successors were duly qualified. The Convention knew that they had changed the time of electing many officers, and must be presumed to have known that the terms of certain offices in Pittsburgh would terminate not long |