and seem to change the qualifications of its members, apparently making it a different body, and go on to provide that "the members shall serve respectively two and four years." It is this latter provision which we are unable to approve, believing it to be in conflict with the requirements of the Act of 1874.

The 5th section of that Act, as we understand it, forbids us to charter a corporation whose entire governing body is not to be annually elected; and if this is so we could not permit a corporation to acquire by amendment a power which we could not originally give. The language of the section seems to be positive on this subject: "The business of every corporation created hereunder, or accepting the same, shall be managed and conducted by a president, a board of directors or trustees, a clerk, a treasurer, and such other officers, agents, and factors, as the corporation authorizes for that purpose. The directors or trustees shall be chosen annually by the stockholders or members the choice of the other officers being left to the regulation of the by-laws. The phrase here used, "directors or trustees," clearly means the governing body of the corporation, the body which manages and conducts its affairs, by whatever name it may in fact be called, the words "directors or trustees" being merely those in general use, and therefore sufficiently indicating the intention of the law. The reasons for this legislative command are not material, and there may very well be two opinions about the policy of a rigid rule for all cases; but the language is plain and unambiguous, and our duty is to give it effect. The Church Council of the petitioner seems to us to clearly fall within the description | of the Act, and we must, therefore, withhold our approval of these amendments until paragraph 6 is either stricken out or modified by proper corporate action.

If the paragraph is stricken out, the provisions of the charter will of course continue to govern on this subject without change; but it may be modified, if the petitioner desires, so as to provide that a certain number of new members may be added by annual election, leaving the charter untouched as to the members called trustees, elders, deacons, and treasurer. As the paragraph stands it is very doubtful, as already intimated, whether any other qualification is required for membership in the council-except, of course, in the case of the pastors-than lay membership in the corporation, and it is quite possible that under its provisions a council might be chosen in

which there would be neither trustees nor any other officers above named. If this result is intended, all members of the council, except the pastors, must be annually elected, for the body would then be of a new character, and, being created under the Act of 1874, would be governed by that Act as to the terms of office of its members. But if this result is not intended it is desirable to avoid difficulty by stating distinctly that in addition to the members provided for by the charter, there shall be a certain number of new members, possessing certain qualifications, and that the new members shall all be annually elected, in which case the terms of office of the new members only would be governed by the Act, and the terms of the other members would still be governed by the charter. Opinion by MCPHERSON, A. L. J.

Practice-Costs of prior discontinued suit— Barton v. Jones. Proceedings in second suit to stay until they are paid-Defendant can file bill of costs at any time.

Sur rule to stay proceedings until payment of costs in prior suit upon same cause of action. The prior suit was in Common Pleas No. 4. The docket entries showed :April 9, 1884. Judgment of nonsuit. Jan. 5, 1885. Costs paid. Jan. 13, 1885. Defendant's bill of costs filed. Frank P. Prichard showed cause.

The costs of record were paid on January 5. The defendant's bill of costs was not filed until after the present action was begun.

John B. Thayer, for the rule.

The defendants may file their bill of costs at any time, and proceedings will always be stayed until these costs are paid. This is the settled practice.

Flemming v. Penn. Ins. Co., 4 Barr, 475.

The reason is that the defendants ought not to be vexed with another proceeding until they have been repaid the costs of the first. Non constat that they would have filed any bill if the nonsuit in the first action had been the end of the matter, but when they found they were to be vexed with a second suit they had a right to indemnify themselves as far as they could, by getting full costs in the first.

1844, April 29.

1715, May 28.

Covenants. 94.

1721, August 26.

Fireworks. 337.

1722, May 22.

Damages. 125.

1770, February 24.

Deeds. 431.

1794, April 22.

Sunday. 316.

Judgments. 293.

1807, April 13.

Ejectment. 344.

1810, March 20.

1815, March 13.

Justice of Peace. 318, 378, 412. Divorce. 250.

1865. April 27.

1866, March 23.

ACTS OF ASSEMBLY-Continued.

Elections. 434.

ACTS OF CONGRESS.

Revised Statutes. § 4234. 143.

209.

What a sufficient averment of fraudulent negotia-
tion to put the plaintiff to proof that he is a holder
for value. Carpenter v. Nat. Bank of Republic, 523.
An affidavit that the note in suit was given in pay-
ment of an amount unfairly won with cards is insuffi-
cient because indefinite. (C. P.) Crowell v. Mc-
Cready, 531.

What an insufficient averment of an eviction in an

action upon a lease. (C. P.) Willcox v. Phila.
Sectional Underground Co., 367.

What a sufficient affidavit in an action aga nst a
surety upon a lease for a renewed term. (C. P.)
Traeger v. Hartnett, 300.

What an insufficient averment of notice of dissolu-
tion to persons dealing with a partnership. (C. P.)
Sagnier v. Watson, 455.

Grim's Appeal, 273.
AFFIDAVIT OF DEFENCE LAW. An ex-
ecutory agreement to pay a certain sum of money upon
a day named, within the Act. (C. P.) Winpenny v.
Winner, 127.

Negotiable instruments sued on in the name of the
holder must show an indorsement by the payee to
entitle the plaintiffs to judgment for want of an affidavit
of defence. (C. P.) Bank v. Temple, 23.

A copy of a lo-t book of original entries is not with-
in the Act. (C. P.) Stoops v. Post, 176.

A copy can be filed on the Monday following the
return day without giving notice. (C. P.) Seed v.
Ketchum, 366.

A judgment entered for want of an affidavit of de-
fence will be opened when it appears that defendant's
failure to file an affidavit going to the merits, arose
from the neglect of the clerk in not entering the copy
on the docket. (C. P.) Hope v. Gross, 14.

The filing of a rule to plead is a waiver of the right
to ask for judgment on an affidavit of defence. (C.P.)
Fuoss v. Schleines, 192.
heirs of
(C. P.)

Upon a scire facias against the widow and
a decedent, no affidavit of defence is required.
Hall v. Wiggins, 112.

Upon entering judgment for the amount admitted
to be due in an affidavit of defence, the Court will not
provide that such order "shall be without prejudice
to proceed in another suit." (C. P.) Blanchard v.
Allison, 381.

In an action against husband and wife for goods
purchased by wife before marriage, upon a copy filed
charging the wife by her maiden name, judgment will
be entered against the wife alone. (C. P.) Wana-
maker v. Grey, 112.

An averment in an affidavit of defence of facts which
would sustain a plea in abatement to the jurisdiction
of the Court is sufficient to prevent a judgment, even
though such avermen's are contradicted by the
sheriff's return to the writ. (C. P.) Bank v. Ameri-
can Ship Building Co., 30.

In an action against an indorser, an affidavit of de-
fence is sufficient which avers that the defendant
never received notice of non-payment. (C. P.) Bene-
dict v.
Gunnis, 158.

An affidavit of defence made by the defendant's clerk

A writ of error does not lie under the Act of April
18th, 1874, unless the refusal of judgment be excepted
to. lb.

AGENT. See PRINCIPAL AND AGENT.
AGREEMENT. See CONTRACT.

AMENDMENT. When in a petition for the ap-
pointment of a guardian there is a misuouier, but a
correct description of the minor, the record cannot be
regarded as a nullity. The identity of the person is
fixed, and the misnomer can be corrected by amend-
ment. Pote's Appeal, 289.

Amendments will not be allowed which introduce a
new cause of action, or which deprive the opposite
party of any valuable right, or which injuriously
affect third persons. Duffey v. Houtz, 291.

Parties who have acquired liens or rights before an
amendment is made, have the right to object to an
amendment which will impair those rights. Ib.

A. held two judgments against the same defendant.
He undertook to revive the former, but by mistake
both his præcipe and scire facias to revive referred to
the latter. A rule being taken by him to amend the
record, after the expiration of the first judgment, so
as to correct the error, held, that this could not be done
so as to prejudice the rights of an intermediate judg-
ment creditor, whose judgment was entered prior to
the expiration of the lien of A.'s first judgment, and
prior to the entry of the second judgment. Ib.

A sheriff having made two returns of nihil habet
upon summons in covenant sur ground-rent deed will
not be permitted to amend his return to mortuus est.
(C. P.) Clare v. Symington, 401.

What not the introduction of such a new cause of
action as to bar amendment of bill in equity. (C. P.)
City v. Schuylkill River East Side R. R. Co., 364.

Even after a transcript of a judgment obtained be-
fore a justice has been filed in the Common Pleas, the
justice has power to amend his record, correcting a
misnomer. Gehman v. Christ, 171.

If the justice errs in amending the transcript, the
proper remedy is by appeal or certiorari. Ib.

Where a petition and writ for partition contain a
statement of adverse holding, the petition and writ
may be amended in regard to such statement, even
after the record has been removed on appeal to the
Supreme Court. Wistar's Appeal, 376.

AMENDMENT-Continued.

A libel in divorce may be amended even though a
new ground for divorce is thereby introduced. (C. P.)
Clayburgh v. Clayburgh, 365. [Cf. Perkins v. Per-
kins, 16 W. N. C. 48.]

Amendment of church charter. See CORPORATION.
In re Salem Church, 567.

ASSIGNMENT FOR BENEFIT OF CRED-
ITORS-Continued.

Liability of an assignee for the benefit of creditors,
where there have been conflicting claims by an as-
signee in bankruptcy. Neill's Appeal, 136.

APPEALS. See ERRORS AND APPEALS.
APPOINTMENT, power of. See WILLS.
ARREST. When an officer is empowered by law
to arrest without warrant, he is not in every case bound
before making the arrest to give the party to be ar-
rested clear and distinct notice of his purpose to make
the arrest, and also of the fact that he is legally qual-
ified to make it. Shovlin v. Commonwealth, 410.

Where the offender is openly engaged in breaking
the law, as by maintaining a gaming-table in a public
place, it is sufficient for the officer to announce his
official position and demand a surrender. If this is
refused, the officer is not liable to indictment for as-
sault when he endeavors by force to secure his pris-
oner. Ib.

The extraordinary purchasing of goods while con-
cealing insolvency, is such a fraudulent contracting of
a debt as to justify a warrant of arrest under the Act
of 1842. (C. P.) Wright v. Slinger, 256.

ASSESSMENT on stock of corporations or-
ganized under Act of 1874, when it can be made. See
CORPORATIONS. Price's Appeal, 182.

Liability of transferee for assessments made while
stock continues in his name. See CORPORATION. Mil-
ler v. Peabody Bank, 76.

Assessm nts on premium notes in mutual insurance
company. See INSURANCE.

Assessment for taxation, when evidence of settle-
ment under poor laws. Scranton Poor District v. Di-
rectors 183.

Assessment of damages. See DAMAGES.
ASSIGNMENT. An order by the cestui que trust
in favor of a third person, on the trustee to pay in-
come not fully due, operates immediately as an equi-
table assignment of the fund pro tanto, although the
trustee has no notice of it until after being served as
garnishee with an attachment sur judgment, which
issued after the date of the order. (O. C.) Soley's
Estate, 351.

Assignment of partnership interest as collateral se-
curity for a debt, when maintainable. See DEBTOR
AND CREDITOR. Collins's Appeal, 5.

Assignee of patent right. A purchaser of pat
ented articles from a territorial assignee of the patent
does not acquire the right to sell the articles in the
course of trade ontside the territory granted to his
vendor. (U. S. C. C.) Hatch v. Adams, 286.

ASSIGNMENT FOR BENEFIT OF CRED-
ITORS. Kents of land in the hands of assignees
for the benefit of creditors, being solely the product of
the land itself, should be applied on those prior liens,
which would be entitled to the proceeds of the land
if sold. Wage cred.tors cannot claim to be entitled
to such rents. Woll's Appeal, 162.

Assignees for the benefit of creditors under an as-
signment made in another State, who seek to avoid a
foreign attachment should intervene by petition, and
not by a rule to dissolve. (C. P.) Lawrence v. Yard,

190.

Arrears of dower are not discharged by a private
sale made by an assignee for the benefit of creditors.
Alleman's Appeal, 213.

PORATION. O'Reilly v. Bard, 257.

A commissioner to take testimony under proceed-
ings in another State caunot maintain assumpsit for
his fees upon a quantum meruit. Peters v. Rand, 539.
Money voluntarily paid without fraud or duress,
though in ignorance of the law or the legal circum-
stances of the case, cannot be recovered back. Union
National Bank v. Dersham, 541.
ATTACHMENT EXECUTION. See EXECU-

TION.

ATTACHMENT, FOREIGN. See FOREIGN

ATTACHMENT.

ATTACHMENT FOR CONTEMPT. An at-
tachment for failure to fully answer interrogatories
will not be granted until an opportunity has been
given to perfect the answers (C. P.) Gude v. Uni-
versal Fire Ins. Co. 438. Contru, Carondelet Co. v.
Fairmount Ins. Association, 125.

When a witness fails to obey a subpoena to appear
before a magistrate or notary, the proper practice is to
obtain a rule to show cause why an attachment should
not issue. (C. P.) Trimble v. Barnard, 127.

ATTACHMENT UNDER THE ACT OF
1869. On a rule to show cause why an attachment
should not be dissolved, the question whether the
debt was fraudulently contracted, is to be determined
by the Court from the deposi ions. (C. P.) Mechan-
ics' Bank v. Miuers' Bank, 336.

An affidavit made in the words of the Act is suffi-
cient to sustain an attachment under the Act of 1869.
(C. P.) Vansant v Lunger, 549.

Failure by collecting bank to remit proceeds of
drafts collected under instructions to forthwith remit,
is such fraud as will sustain an attachment. (C. P.)
Mechanics' Bank v. Miners' Bank, 336.

An interest in a limited partnership association is
not subject to attachment under the Act of 1869. (C.
P.) Wetherald r. Shupe, 366.

When the affidavit of the plaintiff contains general
allegations of fraud, and defendant, by affidavit, de-
nies the allegations, the burden of proof is upon the
plaintiff, and unless he supports his affidavit by depo-
sitions, the attachment will be dissolved. (C. P.)
Bradley v. Harker, 403.

ATTORNEYS-AT-LAW. Commissions for
foreclosing mortgage, when allowed. (C. P.) Pop-
ham v. Napheys, 350.

An attorney has a lien for his services only upon a
fund, or upon papers which he actually has in his
possession. But where a fund is brought into a court
of equity by the services of an attorney, who looks to
that aloue for compensation, though his interest is not
of the nature of a lien, he is the equitable owner
thereof to the extent of the value of his services, and
the Court administering the fund will intervene for
his protection, and award him reasonable compensa-
tion. McKelvy's Appeal, 564.

The Court in such case may itself fix the amount
of the fee, or appoint an auditor to fix it. Ib.

BAILMENT-Continued.

Contract of lease of hotel furniture, with option to
purchase, when not construed to be a conditional sale.
See DEBTOR AND CREDITOR. Edwards v. Ward, 22.
Where one hired a team of horses and a wagon from
a livery-stable keeper, to go to and return from a par-
ticular place by a specified route, and he deviated
from the route in going and returning by a round-
about way, and stopping at another place, the team
was destroyed by an accidental fire, held that the
hirer was liable in trover for the value of the team.
(C. P.) Brown v. Baker, 60. See COMMON CARRIERS.
BANKRUPTCY. A mortgagee not proving his
debt in the bankruptcy proceedings may proceed by
scire facias on his mortgage in the State Court. Porter
v. Megargel, 388.

Effect of proceedings in bankruptcy upon an assign-
ment made under the State law. Neill's Appeal, 136.
BANKS AND BANKING. Where a banker
having funds of the drawer, fails to honor a check,
substantial damages are recoverable without proof of
special injury. (C. P.) Birchall v. Third National
Bank, 174.

Rights of parties to discounted paper. See BILLS
AND NOTES. Commercial Bank v. Heuninger, 33.

Where an agent of a banking firm is authorized to
certify the checks of drawers with sufficient funds,
the fact that he transgresses his authority and certi-
fies checks where the drawer has no funds, will not
relieve the bank from responsibility to an innocent
holder. Hill v. Nation Trust Co., 562.

Quære, whether a usage, which confers authority on
a teller or assistant teller, to certify checks is good. Ib.
BASTARDS. See PARENT AND CHILD.
BILL OF PARTICULARS. See PRACTICE.
BILLS AND NOTES. A note given to sup-
press a threatened criminal prosecution on charge of
obtaining goods under false pretences, is bad. (C. P.)
Watson v. Supplee, 91.

In a suit upon a promissory note, the defence set up
was that the note in suit was given as a memorandum
or receipt for another note which the maker had taken
from the plaintiff to collect for him. Held, to be inad-
missible in the absence of fraud, accident, or mistake.
Phillips v. Meily, 225.

A long statement of extraneous facts above the name
of the payee indorsed upon a promissory note, does
not destroy the negotiability of the instrument. Dun-
ning v. Heller, 85.

Where one holding a note as security for a specific
purpose indorses and hands over the same as collateral
security for an antecedent debt, the maker has a good
defence in a suit against him by the indorsee. Car-
penter v. National Bank of the Republic, 523.

Protest of a note may be waived either by a writing
or by parol. Annville National Bank v. Kettering, 65.
A waiver of "protest" of a note by an indorser be-
fore maturity, releases the holder from the necessity
of making demand and of sending notice of non-pay-
ment. Ib.

Where a bank is the holder of a note payable at a
banking house, and upon maturity the maker has a
deposit in excess of the amount of the note, which de-
posit is not specially applicable to a particular pur-
pose, the bank is bound to apply a part of the deposit
to meet the note, and cannot elect to let the note go
to protest and hold the indorser. Where such a course
is taken, the indorser is discharged from liability.
Commercial Nat. Bank v. Henninger, 33.

A. executed two promissory notes made payable to
the order of B., at a bank of which A. was cashier. B.
indorsed the notes aud had them discounted at the

BILLS AND NOTES-Continued.
bank. A. refused to pay at maturity, and the notes
were protested. In an action by the bank on B.'s in-
dorsement, held, evidence to show an agreement be-
tween A. and B., that B.'s indorsement should impose
upon him no obligation to pay, and that the bank was
protected from loss through this agreement by stock
in the bank owned by A., and by his bond as cashier,
is irrelevant and inadmissible; held, further, that A.'s
account with the bank is admissible in evidence to
show a balance in his favor on the day of the maturity
of the notes, sufficient to have paid them. Ib.

Where a promissory note is made to the joint order
of two payees, it is immaterial which indorses the note
first; in such cases the second indorser does not vouch
for the genuineness of the first, as in the case of several
indorsements. Foster v. Collner, 557.

In determining whether a note is forged, it is irrele-
vaut to ask an expert in what light he, as a banker,
regards the note. Ib.

An accommodation indorser of a promissory note is
liable upon protest, not as a surety merely, but as a
principal. He cannot, therefore, demand that the
holder shall proceed against the maker or realize upon
the collateral security, but he becomes at once pri-
marily responsible. If he desires the collateral sold,
he must take up the note, and then he will himself
control the collateral and may realize on it. McCa-
mant v. Miners' Trust Bank, 122.

In order to compel an indorsee in an action on a
promissory note of a firm made by one member for his
own purposes to show consideration, the affidavit of
defence must allege that the note was not made with
the knowledge or assent of the firm, and was not rati-
fied by it after being made. (C. P.) Penn National
Bank v. Gunnis, 550.

In an action against an indorser, it is enough for
him in an affidavit of defence to aver that he did not
receive notice of protest. (C. P.) Benedict v. Gun-
nis, 158. See AFFIDAVIT OF DEFENCE Law.

BOND. A coupon bond of a private corporation,
payable to bearer and secured, together with other
bonds of the same character, by a mortgage on the
works of the company, is a negotiable instrument, and
the mere addition of the seal of the corporation does
not destroy its negotiability. Mason v. Frick, 369.

When such bond is delivered by the person having
possession of the same, to another party who gives
value for it, and takes it without notice of any defect
in the title, the title passes to the transferree irrespec-
tive of any defect in the title of the transferrer.

Ib.

Suit may be brought upon an overdue interest cou-
pon in the ordinary form, severed from a railroad cor-
poration bond payable to bearer, and interest may be
recovered upon the amount of said coupon from the
date of maturity when payment thereof has been re-
fused. Phila. and Read. R. R. Co. v. Smith, 371.

An interest warrant attached to such a bond, which
warrant is intended to serve as a coupon, may be sued
upon as such by the holder th ugh severed from the
bond, even though it contains no express words of uego-
tiability. In such suit interest is recoverable on the
warrant from the date of its maturity. Ib.

An action will lie for interest due on a bond, although
the principal is not yet due, and notwithstanding the
fact that the mortgage securing the band provides, in
case of default in the payment of interest, a special
remedy for the collection of principal and interest by
writ of scire facias. Dreer v. Penua. Co., 527.

A common law action may be maintained upon a
bond filed in a foreign attachment suit, and condi-
tioued for the payment of the debt, interest, and costs,