New Jersey was merely temporary. That he was, | Jersey. His removal was not partial and his inaccording to ecclesiastical law, a member of the tention to return was not declared at the time. Diocese of Pennsylvania, having never received Joseph W. Hunsicker, contra. or applied for the necessary dimissory letters from the Bishop of that Diocese. Wilkins v. Rubincam. Exemption The Court has power to set aside an allowance of a claim of exemption when the defendant is not entitled to it-A nonresident debtor is not entitled to the exemption allowed by Act of Assembly-The Court has power to try and determine a question of residence-Establishing a home in another State and removal of family thereto is evidence of change of domicile—Intention to return must be formed and expressed at the time of removal, and should be clearly established. Rule, to show cause why the defendant's claim for exemption and appraisement thereupon should not be set aside. The depositions showed that on February 13, 1884, the defendant moved from Philadelphia to Camden, New Jersey, where he rented a house by the month, and that he and his family still continue to reside there. He alleged that he went to Camden to live, with the intention of remaining there only until his wife should recover from an approaching accouchement; that she did not recover until July, 1884; and that since then he has been making efforts to get a house in Philadelphia. Joseph L. Tull, for the rule. The defendant has given up his domicile in this State, and established a new one in New The Court has no power to set aside an appraisement under a claim of exemption. That is the rule in the Orphans' Court. Vandevort's Appeal, 7 Wright, 462. A defendant is entitled to have the question of his residence tried by a jury; or if not, the question is for the sheriff to determine without review by the Court. Thornton v. Aubrey Hotel Co., 5 WEEKLY Notes, 428. Kiker v. Walker, 7 WEEKLY NOTES, 521. This defendant has not lost his residence in Philadelphia. Domicile is the place where a person fixes his habitation without any intention of removing therefrom. To constitute domicile there must be both residence and intention to make it the home of the party. Carey's Appeal, 25 P. F. S. 201. A debtor is not liable to foreign attachment by leaving this State to seek a new home until he has acquired one. Pfouts v. Comford, 12 Casey, 420. Reed's Appeal, 21 P. F. S. 378. Residence is a question for the Court. Tull, in reply. The Court has power to set aside an appraisement for cause. a Sleeper v. Nicholson, 1 Phila. 348. Norris v. Town, 1 WEEKLY NOTES, 51. In Vandevoort's Appeal, cited by defendant, late when applied for; but the Court says that a re-appraisement was refused because it was too ceeded against in due time. fraudulent valuation may be set aside if pro Where a party takes his movable property and establishes a home in another State such acts are prima facie evidence of a change of domicile. Vague and uncertain evidence, such as his declarations after suit, as in this case, will not remove the legal presumption. The effect of his removal is not destroyed by his expressed and indefinite intention to return at some future time. His intention must be present at the time of removal, and the evidence should show the expression of it at that time. Hindman's Appeal, supra. A non-resident debtor is not entitled to the $300 exempted by law. Act of May 8, 1874, P. L. 124. THE COURT. Rule absolute. WEEKLY NOTES OF CASES. VOL. XV.] THURSDAY, OCT. 9, 1884. Supreme Court. July, '83, 198. McBeth v. Newlin. $1100 in five years from the date thereof. On August 8, 1877, Robert B. Salter assigned this bond and mortgage to Hannah McBeth, wife of William McBeth, the plaintiff in error and the plaintiff below. On the same day, and at the [No. 9. same time, viz., August 8, 1877, James W. M. Newlin, the defendant, executed and delivered to the said Hannah McBeth his bond, conditioned as follows: "Now the condition of this obligation is such that if the said William Paul, the mortgagor, his heirs, executors, January 24, 1884. administrators or assigns shall well and truly and promptly pay or cause to be paid the interest on the said mortgage when and as often as the same shall become due and payable according to the terms thereof, and shall also well and truly and promptly pay the principal of the said mortgage when and as soon as the same shall become due and payable, together with all interest accrued, then this obligation to be void, otherwise to remain in full force and virtue." Suretyship and guaranty-Distinction between Rules of Court-Paper-books, what they must contain. An undertaking that payment of another's debt shall be made when due, is a contract of suretyship and not of guaranty. Where a party assigned a bond and mortgage to another, and on the same day a third party executed his bond to the assignee, conditioned for the payment of the interest and principal of said mortgage upon a default of the mortgagor, when and as the same became due and payable according to the terms thereof, such bond created a contract of suretyship, and rendered the obligor liable without proof of the insolvency of the mortgagor, and of due diligence on the part of the mortgagee to collect the sum due from the mortgagor. The Court of Common Pleas has power to suspend its The mortgage having become due, and payment thereof having been refused by Paul and his assigns, Hannah McBeth, on the 18th day of October, 1881, caused a sci. fa. to be issued on the said mortgage against William Paul, the mortgagor, which was duly served, and, on November 23, 1881, judgment was entered for want of an appearance, and damages were assessed at $1202. The same day a levari facias was issued, and on December 5, 1881, the property described in the said mortgage was sold to rules and seal a bill of exceptions after the expiration of Joseph S. Goodbread, counsel for the defendant, the time provided by such rules. A plaintiff in error omits the printing of matters specified in the Rules of Court at his peril, but when abstracts showing the issue and how it was made have no bearing on the question for review he risks nothing by omitting to print such abstracts and the pleadings; nor need he print evidence wholly unnecessary to an understanding of the question; the rule requires the printing of an "appendix containing such documentary or other evidence as may be necessary." Where judgment has been entered non obstante veredicto, and the plaintiff has specially excepted to the refusal to enter judgment on the verdict, it is not necessary, though convenient, that the point reserved on which judgment has been entered should be set out in the assignments of error. Error to the Common Pleas No. 3, of Philadelphia County. Debt, by William McBeth, and Hannah his wife, in right of said Hannah, against James W. M. Newlin. Pleas, nil debet, set-off, payment with leave, etc. On the trial, before YERKES, J., the following facts appeared: On September 4, 1876, Wm. Paul executed a bond and mortgage to Robert B. Salter, secured on certain premises, situate on the south side of Passyunk Avenue, in the city of Philadelphia, 175 feet, 24 inches east of Eighteenth Street, to secure the payment of for $1000; from the proceeds of the sale the plaintiff, Hannah McBeth, received $843.23. On November 1, 1881, the plaintiff brought this action against James W. M. Newlin on the above bond. At bar the defendant filed a special plea, viz. :— “That it appears in law by the terms of the writing obligatory in the declaration mentioned that the defendant entered into a contingent engagement to pay the mortgage in the declaration mentioned upon the insolvency of the mortgagor and provided that the plaintiff as assignee of the said mortgage used due diligence to collect the same." He also averred that due diligence had not been used. The plaintiff offered in evidence the bond of the defendant. Also the mortgage and assignment. The defendant offered in evidence the record of the proceedings on the said mortgage. The defendant requested the Court to charge as follows: (1) The evidence in this case shows that the writing obligatory, upon which the action is brought, was a contingent obligation to pay upon the insolvency of the mortgagor (Paul) and upon the assignee (the plaintiff) using due diligence to collect the mortgage, hence if the jury believe that such due diligence was not used, the verdict must be for the defendants. (2) The evidence shows that due diligence to collect the mortgage, mentioned in the declaration, was not used before the bringing of this suit, hence the verdict must be for the defendant. (3) Under all the evidence the verdict must be for the defendant. The Court reserved these points and directed a verdict for the plaintiff. Verdict accordingly for the plaintiff, subject to the reserved points. Subsequently the Court entered judgment for the defendant non obstante veredicto. Whereupon the plaintiff took this writ, assigning for error this action of the Court in refusing to enter judgment on the verdict. The paper-book of the plaintiff in error contained no abstract of the proceedings showing the issue and how it was formed. The entire record of the suit on the mortgage was offered in evidence, but the proceedings are not set forth in the paper-book. Moreover, it appears that the bill of exceptions was not presented until after the time allowed by the rule of Court, but was signed by the Court five months after the verdict, notwithstanding a protest from the defendant, but it appears that this was done in accordance with a promise of the Judge who tried the case. The bill of exceptions did not set out the point reserved. Henry Budd (Robert Ingram with him), for the plaintiff in error. This bond constituted a contract of suretyship and not a guaranty; it was an original undertaking, and hence this defendant was liable immediately upon the refusal of Paul to pay. Frechie v. Drinkhouse, 4 WEEKLY NOTES, 298. In construing an instrument of this kind, the Court will look at the whole of it and construe it according to all its parts. Marberger v. Pott, 4 Harris, 9. In all the cases where instruments of this kind The paper-book of the plaintiff in error should be amended so as to comply with the rules of Court. The rules governing bills of exception cannot be disregarded without the consent of the defendant in error. Rule IX. 31, 32, and 33. Kirkpatrick v. Lex, 13 Wright, 122. Wherever two promises constitute one transaction, and are in effect two primary promises to answer for the same debt, the promise by the defendant will be treated as a principal one. But in this case, Mr. Newlin's promise was not contemporaneous with the original undertaking; it was nearly a year afterwards, hence this promise not being contemporaneous, and being a promise that some other person, not the promissor, shall pay the debt, the contract is one of guaranty. Sherman v. Roberts, 1 Grant, 261. Brandt on Suretyship and Guaranty, ¿? 1 and 83. Clow v. Derby Coal Co., 2 Out. 432. March 3, 1884. THE COURT. The defendant admits that if his contract is one of suretyship, the Court below erred in entering judgment in his favor on the reserved points. Hence the sole question is whether by the terms of the bond he is a surety or a guarantor. An undertaking that payment of another's debt shall be made when due is a contract of suretyship. (Campbell v. Baker, 46 Pa. St. 245; Roberts v. Riddle, 79 Id. 468.) Where the contract does not fix the time of default on the part of the principal debtor, it is one of guaranty. (Rudy v. Wolf, 16 S. & R. 79; Mizner v. Spier, 96 Pa. St. 533.) In Mizner are held to create a secondary liability, there has. Spier, as well as in Campbell v. Baker, the been used some expression which either popularly or technically covers that idea. Rudy v. Wolf, 16 S. & R. 79. But there is nothing in this bond upon which an argument can be based that the obligee was first to pursue and exhaust the mortgagor before resorting to the defendant in this case. The time of default, when the defendant was to pay or see the debt paid, was fixed, and hence it was a case of suretyship. Girard Life Ins. Co. v. Finley, 1 Phila. 70. Cochran v. Dawson, I Miles, 276. Audibert v. Young, I WEEKLY NOTES, 276. Joseph S. Goodbread and Geo. Tucker Bispham, for defendant in error. but the contract was silent as to the time of denote and guaranty were simultaneously made, fault in one case and stipulated the time in the other. In Roberts v. Riddle the guaranty, as it was called, was for "payment of the bond according to its terms" and these words were construed to mean a guaranty of payment when due; but in Rudy v. Wolf, where the party agreed to stand security for the payment of the bond, the words were not held to mean payment when the bond became due. These cases illustrate the principle, that when the contract defines the time of default when the surety is to pay or see the debt paid, it is one of suretyship and other cases need not be remarked. Salter held a mortgage and bond against William Paul, which he assigned to Hannah McBeth. On the same day, Newlin executed his bond to Hannah McBeth, in the sum $2200, therein re citing the assignment of the said mortgage and February 25, 1884. City of Scranton v. Pennsylvania Coal terms thereof and shall also well and truly and Municipal claim-Grading-Rural property Assessments-Foot front rule. Property used as farm land cannot be assessed accord promptly pay the principal of the said mortgage, when and as soon as the same shall become due and payable, together with all interest accrued thereon, then this obligation to be void; other-ing to the "foot front rule" for improvements to a street upon which it abuts. A statute authorizing such assess. wise to remain in full force and virtue." It ment is unconstitutional and void. would be difficult to define the time of default in plainer terms or to more clearly express Mr. Newlin's undertaking to pay the debt when due if the principal debtor does not. The defendant protested as to the sealing of the bill of exceptions because the time named in the rules of Court had expired, and also he excepts to the plaintiff's paper-book. This bill is properly certified and sealed and must be so treated. In Lex v. Kirkpatrick (49 Pa. St. 122) there was neither a certificate nor a sealed bill and the remarks were applicable to that condition of the record; it could not have been intended that the Court below had no power to suspend its rules and seal a bill after thirty days from the trial. Here the learned Judge gave a conclusive reason for the propriety of his action, nor could he with any sense of justice have refused to seal the bill when he had promised to do so at any time. Acts of Assembly authorizing street improvements directed that the costs of said improvements should be assessed on certain abutting farm land, each forty feet front whereof was to be regarded as a lot, and assessed accordingly. It was further provided that the cost should as nearly as practicable be distributed so as to be borne equally by each lot: Held, that the Acts were obnoxious as substantially applying the "foot front rule" of assessment to rural property. Semble, that rural property abutting on streets cannot be alone made to bear the cost of improving such streets. The cost should be borne equally by all the taxables of the municipality. Error to the Common Pleas of Lackawanna County. Scranton for grading certain property owned by Scire facias sur municipal claim by the city of the Pennsylvania Coal Company, and fronting on Washington Avenue in the said city. The facts, as they appeared on the trial before Avenue, in the city of Scranton, was opened and HANDLEY, P. J., were as follows: Washington graded under the provisions of the Act of April 3, 1872, entitled "An Act to extend certain avenues in the city of Scranton," and a supplemental Act passed on April 17, 1873. The bill contains everything necessary for consideration of the only point, namely, whether judgment non obstante veredicto was rightly entered for defendant. A plaintiff in error omits the printing of matters specified in the rules at his peril, but when abstracts showing the issue and how it was made have no bearing on the ques-` tion for review he risks nothing by omitting to print such abstracts and the pleadings; nor need he print evidence wholly unnecessary to an understanding of the question; the rule requires of Luzerne County, upon the application by petition of the printing of an "appendix containing such twenty or more of the citizens residing on, and owners of property on, either Wyoming, Washington, or Adams documentary or other evidence as may be neces-avenues, in the city of Scranton, to appoint five commis sary." We think it would have been better, more convenient, had the points of law reserved been set forth in the assignments of error, but that is not expressly required by the rules. Prima facie, the plaintiff was entitled to judgment on the verdict; he excepted to its refusal and assigns error. The record shows that judgment was refused upon a point of law reserved, and were this Court of opinion that said point precluded the plaintiff's recovery, his assignment would not be sustained. Judgment reversed, and judgment is now entered on the verdict for $412.64 with interest from April 26, 1883. Opinion by TRUNKEY, J. W. M. S., Jr. The first section of the Act of April 3, 1872, provided as follows:— "It shall be the duty of the Court of Quarter Sessions sioners, two of whom shall be citizens of the borough of Dunmore, not property holders on either of said avenues, whose duty it shall be to view, lay out, and extend said avenues from Vine Street, in said city, to the Philadel phia and Great Bend Turnpike, in the borough of Dunmore." The sixth section provided as follows: "As soon as the grading of said avenues is completed, or the cost thereof is accurately ascertained, it shall be the duty of said supervisors to equitably apportion and assess the same on the property or lots fronting on and adjoining said avenues; they shall report, in writing, all of their proceedings to the commissioners of said city, and the same shall be filed and entered in the journal or minutes of the proceedings of said commissioners; said report shall state specifically the property or lots assessed, the amount assessed to each, with the name or names of the owners, and a description of the lots and properties so assessed; and unless lots are otherwise defined and laid | out by the owners, forty feet front and one-half the block in depth shall be taken to be a lot, except corner lots, which shall be taken as fifty feet front, and same depth as otuers." The supplemental Act of April 17, 1873, increased the number of commissioners from five to seven, and authorized them to open, extend, and grade other streets and avenues as though included in the previous Act. They were to make assessments to cover the cost of grading, as follows: : "That as soon as the cost of opening and grading the avenues and streets for public travel is ascertained from the proposals accepted, the same shall be justly and equitably apportioned and assessed on each lot fronting on the avenues and streets to be opened and graded by said commission, so that the cost shall as nearly as practicable to distribute it, be borne equally by each lot." The evidence showed that the land of the defendant was rural or farm land. The defendant submitted, inter alia, the following points: (4) If the jury believe that the defendant's land was farm land and suburban property through which said avenue was laid out, and that said avenue was a general public benefit, the plaintiff cannot recover." Answer. "This point involves two facts. The first is that the property is suburban, and that the avenue was laid out through farm land. Now it is for you to ascertain whether that is correct; whether it is suburban or farm land you can easily ascertain by following the rule, namely, that it is the use the land is put to that is to guide you while passing on this question. The other fact is, whether this avenue is a general public benefit. That means, of course, a general public benefit to all the people of this city, and not locally to the people living on the front of each side of the avenue. Now, if it is a public avenue to be used by the public at large, then it falls under the prohibition of the new Constitution; it would be special legislation; but if it is used only by the people, and was so intended, living upon the front of it on each side, then, of course, it is not, within the meaning of the law, a public avenue. We, therefore, say to you, in answer to this point, with the explanation we have already made, that if you find these two facts in the affirmative, then we affirm this point. If, on the other hand, you say that the facts are not as stated therein, then we cannot affirm this point." (5) "If the jury believe that the assessment in question was laid equally upon each front foot of all the property along said avenue without regard to its location or value, the plaintiff cannot recover." Answer. "This point we affirm, provided you find from all the evidence in the case that the land of the defendant was rural or farm land. If you find that it was not, then we cannot affirm this point." Verdict and judgment for the defendant. The plaintiff thereupon took this writ, assigning for error, inter alia, the answer to the defendant's points as above. H. M. Hannah and Lemuel Amerman (J. H. Burns, City Solicitor, and E. C. Dimmick with them), for plaintiff in error. The Acts of Assembly in the case most clearly do not require the application of the front foot rule, or an equivalent of it. In fact, they impliedly forbid it, unless it shall be just and equitable; and they only suggest it so far as it may be practicable, and so far as it is consistent with the other imperative direction that the assessment be just and equitable. Under the directions of this Act one lot might have been assessed at one figure, and another at twice or three times as much if that were just and equitable. The fixing of the amount is in the discretion of a sworn commission who are bound by their oaths to do it properly. Craig v. City of Philadelphia, 8 Norris, 526. Edward N. Willard (Everett Warren with him), for defendant in error. The foot frontage rule of assessment as applied to rural or suburban property is unequal, unjust, and unconstitutional. Washington Av. Case, 19 Smith, 352. Rutherford v. Maynes, 1 Out. 78. April 14, 1884. THE COURT. The contention in the case before us has its origin in a scire facias issued on a municipal claim, filed on behalf of the city of Scranton, against certain lands of the defendant below abutting on Washington Avenue, in said city. This avenue or street was laid out, opened, and graded under the provisions of the Act of the 3d of April, 1872, entitled "An Act to extend certain avenues in the city of Scranton," and its supplement of the 17th of April, 1873. This Act provided for the appointment, by the Court of Quarter Sessions of Luzerne County, of five commissioners, two of whom should be citizens of the borough of Dunmore, who were authorized to view, lay out, and extend, either Wyoming, Washington, or Adams |