Erdman v. Gottshall, 9 Super., 295. The justice of the peace had no jurisdiction and therefore the Court had none. Questions of jurisdiction can be raised at any time on the appeal: Diehm v. Snell, 119 Pa., 316. pears to the Court with perfect clearness, notwithstanding the trial may have been had in the wrong county, and where both parties have consented to the trial without objection it ought to bind them." Brown v. Fruit, 3 Clark, 295. "An omission of a justice to an action Moreland Tp. v. Gordner, 109 Pa., of trespass for injury done to real es 116. Fowler v. Eddy, 110 Pa., 117. There held it is never too late to attack a judgment for want of jurisdiction. The action in this case was for consequential damages, over which the justice had no jurisdiction. Masteller v. Trimbly, 6 Binney, 33Herrigas v. McGill, 1 Ashmead, 152. Millhauser v. Morgan, 6 Kulp, 48. Conaghan v. Rudolph & Myers, Kulp, 504. 4 Ripple v. Keast, 5 Dist. Reps.. 31. It was not too late to object to the jurisdiction after the trial. Bridge Co. v. Union and North'd Counties, 232 Pa., 255, held that jurisdiction could not be waived or obtained as to the subject-matter before the court. See also: Com. v. Barnett, 199 Pa., 161-177. English v. English, 19 Superior, 586. A Lancaster County justice had no jurisdiction for a trespass in land in Chester County. Knesal v. Williams, II Dist. Rep., 392. Spencer G. Nauman and John A. Nauman, for appellee. The justice had jurisdiction for damage to growing crops. Act of March 22, 1814, Pur. Dig., 2154. Act of July 7, 1879, P. L., 194. Dolph v. Ferris, 7 W. & S., 367. But in this case the plaintiff was entitled to recover at all events upon a declaration in trespass quare clausum fregit, of which the justice of the peace before whom the action was commenced had jurisdiction." Dolph v. Ferris, 7 W. & S., 369. tate, to set forth on his docket the county in which the estate is situated is not a sufficient ground for the reversal of his judgment on certiorari." Brown v. Quinton, 2 Clark, 169. The Supreme Court has held that since 1889 the owner of cattle must fence them in and that the owner of the realty is not compelled to prove that his land. was fenced, in order to recover damages from the depredations of cattle. Barber v. Mensch, 157 Pa., 390. Pepper & Lewis, Vol. 17, Col. 30050. The fence, by the defendant's own undisputed testimony in this case, was of a temporary character and not sufficiently strong to restrain his cattle. The trial judge, therefore, in no way deprived him of any rights in the submission of this question to the jury. Erdman v. Gottshall, 9 Sup. Ct., p. 295. RISON, J. This is an action of trespass commenced before a justice of the peace of plaintiff's crops growing upon his farm Lancaster county to recover damages to in Chester county caused by defendant's cattle going upon said farm and injuring and destroying said crops. The case appears to have been tried on its merits before the justice of the peace (both parties being present) and the justice entered judgment against the defendant for $34.75 and costs. The defendant then appealed to the Common Pleas of Lancaster County. In that appeal the plaintiff filed a declaration claiming $150 damages caused by defendant's cattle trespassing on plaintiff's farm in Chester county, and defendant promptly pleaded "not guilty" and the cause was subsequently tried on its merits before Judge Hassler and a jury and a verdict rendered in favor of plaintiff for $95.41. Defendant's counsel moved for a new "In this case the right of action ap- trial and for judgment non obstante veredicto, and, on argument, both motions were refused and judgment entered on the verdict, and the defendant appealed to this court. Defendant's learned counsel, at the trial, presented the following points: I. "This suit being an appeal from the judgment of a justice of the peace of Lancaster county, and under the statement and evidence the trespass was as to real estate situate entirely in Chester county, therefore, the justice of the peace had no jurisdiction and the Court of Common Pleas has none on appeal. 2. "This being an appeal from the judgment of a justice of the peace, and under the statement and pleadings it being an action for negligence, carelessness, etc., on the part of the defendant, it was such an action as could not be maintained before a justice of the peace, and, therefore, the court has no jurisdiction upon an appeal-the justice of the peace having no jurisdiction. 3." The action being for consequential damages, a justice of the peace has no jurisdiction thereof, and there is no jurisdiction on appeal in the court of Common Pleas. 4. "The defendant should not recover in this case for the reason that he had no fences to prevent cattle straying upon his premises. 5. "Under the law and the evidence the verdict must be for the defendant." These points, were all, we think, rightfully refused and not read to the jury. The case was submitted to the jury on ample evidence in a charge that is adequate and impartial, and upon a careful examination of the record, we can see no merit in any of the assignments of error. As to the defendant's first point we think it is effectually disposed of by our own case of Magee v. Railroad Co., 13 Pa. Superior Ct., 187. The present case was tried on its merits before the justice; the defendant being present and participating in the trial. Then in the appeal to the Common Pleas the plaintiff filed a declaration which plainly showed that the locus in quo upon which the defendant's cattle trespassed was situated in Chester county. Yet with this fact plainly before him, defendant's learned counsel pleaded "not guilty and went to trial on the merits in the Common Pleas. If he desired to raise the technical question raised in his first point, he should have raised it before pleading the general issue. As to the questions raised by defendant's second and third points it is sufficient to say that they are not good either in fact or in law. If there is anything well settled in Pennsylvania, it is that a justice of the peace has jurisdiction "of actions of trespass for the recovery of damages for injury done or committed on real and personal estate in all cases where the value of the property claimed or the damages alleged to have been sustained, shall not exceed one hundred dollars." Act of March 22, 1814, P. L., 6 Sm., 182. By the Act of July 7, 1879, P. L., 194, this jurisdiction was enlarged to the sum of three hundred dollars. The present action is trespass quare clausum fregit and that a justice of the peace has jurisdiction of such a cause of action is clearly decided in Dolph v. Ferris, 7 W. & S., 367, and this doctrine has not been successfully questioned for more than three score years. As to the defendant's fourth point it is in the teeth of both the statute law and the decided cases. As to the statute law we cite the Act of April 4, 1889, P. L., 27, which repealed the first section of the Act of 1700 which had been in force throughout the commonwealth. By the repeal of the Act of 1700 the rights of owners of cattle and landowners were left, as they were at common law, which required owners of cattle to fence them in, or be answerable in damages for their trespasses. Since the Act of April 4, 1889, the owner of cattle who is sued for damages for the trespass of said cattle, must show, to prevent recovery, that he kept his cattle in, or tried to, by a sufficient fence. See Barber v. Mensch, 157 Pa., 390. This case pointedly holds that the trial judge should have instructed the jury that if defendant had not, by a sufficient partition fence, kept his cattle in, his defense failed, and plaintiff had a right to recover such damages as he sustained. Defendant's learned counsel contends, ! On May 12, 1910, suit was brought however, that the question of whether the partition fence between the land of plaintiff and defendant was sufficient, should have been submitted to the jury. This is true in a case where the sufficiency of the fence is fairly in dispute: Erdman v. Gottshall, 9 Pa. Superior Ct., 295. But in the present case the fence, by defendant's own showing, was of a temporary character and not sufficient to restrain the cattle. As was said in Erdman v. Gottshall, supra, "on this state of evidence, there was no question to go to a jury as to the sufficiency or insufficiency of the party line fence. If there had been a conflict of testimony on this point it would have been the duty of the Court to have submitted the question to the jury." Therefore, the trial judge did not err in our case in not submitting this question to the jury. The assignments of error are all overruled and the judgment is affirmed. Common Pleas--Law D. H. Potts v. Albert and Jennie E. Guhl Transcript from magistrate-Attachment ship. Where a justice's record of judgment against a husband and wife on a promissory note has been entered in Common Pleas and an attachment ad, lev, deb. issued thereon, the wife can not oppose the entry of judgment against the garnishee on the ground that she was surety for her husband on the note. The $300 exemption can not be claimed on the entry in Common Pleas of a transcript from a magistrate, where the record shows that it was waived before the magistrate. C. P. of Lancaster Co. October Term, 1912, No. 15. Rule to enter judgment against garnishee. D. McMullen, for rule. John M. Groff, contra. before George F. Lutz, a justice of the peace, by D. H. Potts, against Albert Guhl and Jennie E. Guhl, and, after a hearing duly had, judgment was given on June 3, 1910, in favor of the plaintiff, against both of the said defendants, for the amount claimed, $150.00, with $12.65 interest. The basis of the suit was a promissory note, which contained the following clause: "Waiving the right of all valuation, appraisements, stay & Exemption Law." On September 10, 1912, a transcript of the justice's record was entered in this Court, to August Term, 1912, No. 180, and an attachment ad. lev. deb, was issued thereon, wherein H. E. Dennison, administrator of David Dennison, deceased, 'was summoned as garnishee. On April 30, 1913, interrogatories were filed, and in answer thereto the said garnishee admitted that he had in his hands the sum of $169.69 due and payable to Jennie E. Guhl. This rule for judgment against the garnishee was thereupon entered. On July 12, 1913, Jennie E. Guhl filed a paper, in which she claimed the benefit of an exemption of $300.00, and she also opposed the entry of judgment on the attachment because, as she asserts, she was a surety for her husband on the obligation upon which the suit was originally brought. As the record shows that she waived the exemption, her claim for it cannot be recognized. She had the right to waive it, and the record of the magistrate, which has been transferred to this Court, shows that she did so. So far as the second proposition is concerned, she is not now in a position to raise it. In Littster v. Littster, 151 Pa., 474, it was held that "the Court of Common Pleas has no jurisdiction to open a judgment entered on a transcript of a judgment of a Justice of the Peace. filed in Court as a lien," and that "a married woman, who has taken no appeal from the judgment of a Justice of the Peace cannot, after a delay of three years, and after a transcript has been filed in the Common Pleas, have the judgment opened to let her into a de December 27, 1913. Opinion by LAN- fense." In our own case of Doerr v. Graybill, 24 Sup., 321, Smith, J., deliver DIS, P. J. ing the opinion of the Court, said: “The Act of March 20, 1810, section 10, authorized the filing in the Common Pleas of a transcript of a judgment of a Justice to bind the defendant's real estate, and execution thereon upon the Justice's certificate that an execution had been issued by him to the proper constable and returned nulla bona. This, however, gives the Common Pleas no authority to open such judgment or to review the decision of the Justice on any question involved therein. Lacock v. White, 19 Pa., 495; Boyd v. Miller, 52 Pa., 431; Wilkinson v. Conrad, 10 W. N. C., 22." Other authorities of like tenor might be cited. We do not think there is any substance in the position assumed by the defendant, Jennie E. Guhl, and we, therefore, make the rule absolute and direct judgment to be entered against the garnishee for the amount admitted in the answer. Rule made absolute. Common Pleas-- Equity Felding v. Witmer. Equity Jurisdiction-Control over estate of living person-Person non compos mentis-Fraud. The sons and daughters of a living person have no standing to maintain a bill in equity against another son, where the averments are of fraud and undue influence over the father, and the prayers are for an injunction to restrain the defendant from interfering with the estate of his father, and to set aside a power of attorney and a will alleged to have been made under the defendant's influence. Bill in equity for injunction and demurrer. C. P. of Centre County. September Term, 1912, No. 2. J. M. Keichline, S. D. Gettig and W. D. Zerby, with them John J. Bower, for plaintiffs. John Blanchard, N. B. Spangler, W. G. Runkle and Edmund Blanchard with them, for defendant. August 26, 1913. HALL, P. J., twentyfifth judicial district, specially presiding. The bill in this case is filed by Nannie Felding, Maggie Thomas and Annie Kline, daughters of William Witmer, deceased, and Maggie Kelley, Clayton Korman and Anna Wright and William Korman, the adult children of Jennie Korman, deceased, who was also a daughter of the said William Witmer. The defendant, James C. Witmer, is a son of the said William Witmer. It alleges that the said William Witmer is ninety years of age and so weak in body and mind as to be unable to transact business; that he has a large amount of property, consisting of real estate, money and securities; that both he and his property has been for some time controlled by the defendant who has compelled the plaintiffs to withdraw from his house and prevents them from communicating with him, and that they are unable to learn what is being done with the property; that the defendant, on or about May 21, 1910, secured the execution of a power of attorney from the said William Witmer, giving the defendant full power to act in the place of the said William Witmer in practically all matters pertaining to the management of his estate; that its execution was obtained by fraud, misrepresentation and undue influence; that the defendant has since obtained large sums of money by virtue thereof without having given any security whatever to the said William Witmer or his heirs; that the said William Witmer some years ago, at a time when he had capacity to do so, executed a will which was deposited with the First National Bank of Bellefonte; that the defendant has since by fraud, misrepresentation and under influence secured the execution of anat a time when he had no capacity to other will by the said William Witmer make a will; that the defendant in the same manner has obtained from the said William Witmer a contract to pay him $10 a day for every day spent in caring for his person and estate; that the defendant has sold, cut and removed, and is now allowing to be cut and removed from the real estate, large quantities of timber without any authority in the power of attorney referred to and with The first paragraph of the bill, which is the only paragraph bearing upon the rights of the plaintiffs to maintain the bill, simply sets forth the fact that the plaintiffs are the children and grandchildren of William Witmer. In other words certain children of a living person file a bill asking relief against another child relative to the estate of a living person. Nemo est haeres viventis. out the consent and knowledge of William Witmer, he not having the capacity to consent; that the defendant has been for more than two years in possession of large sums of money belonging to William Witmer without authority and without giving any security to indemnify the said William Witmer or those interested in his estate, and that defendant has exercised complete control over the said William Witmer, obtaining his sig-"It is an elementary principle that he nature to whatever papers he desires and thereby taking undue advantage of him and those interested in his estate. The plaintiffs therefore pray the court to grant an injunction restraining the defendant from any further interference with the property of William Witmer; from collecting any assets; making any loans; drawing any money out of the bank or disposing of any property whatever; to compel him to render an accounting of all property belonging to William Witmer that has come into his possession; to compel him to deliver for cancellation the will whose execution was obtained by misrepresentation and undue influence; to compel him to deliver for cancellation the contract above referred to; to direct him to deliver for cancellation all other papers to which the signature of William Witmer was obtained during the three or four years last passed in which the defendant has an interest and to make such other order and grant such additional relief as may seem necessary to the court. The defendant has demurred to the first paragraph of the bill, and the relief prayed for thereunder, for the reason that the plaintiffs have no right to maintain the bill, having no title vested in them relative to the property and subject-matter involved that entitles them to relief, and for the further reason that this court has no jurisdiction to ascertain or determine the mental condition of William Witmer or the validity of his will, or to grant any relief thereto. To the other allegations of the bill the defendant has made answer responsively denying them in toto. The preliminary injunction was dismissed at the time of the hearing. We come now to consider the demurrer. who seeks equitable relief must establish a clear legal right to the enjoyment of that, the injury to which he seeks to enjoin. This burden always rests on the complaining party. Equity will not enjoin at the instance of one who has no legal right to the use, occupation or enjoyment of the property or thing about to be invaded. A complainant must stand on the strength of his own right rather than on the weakness of those claimed by a respondent." Andel v. Duquesne Street Rwy. Co., 219 Pa., 635. "On this ground the heir at law cannot. during the life of his ancestor, maintain a suit for discovery concerning the estate, since he has no present interest in it." I Pomeroy's Eq., 3d Ed., sec. 198, note 2. Where a man is compos mentis he may, if he so desires, execute a general power of attorney to one of his heirs or to an entire stranger without security, or he may transfer his estate absolutely to them without consideration, and his other heirs have no standing in a court of law or equity to prevent it or to obtain redress. Of this there can be no question, but the plaintiffs in this case claim to have a standing because of their allegation that William Witmer is non compos mentis, and that the execution of the power of attorney, the contract, and the will referred to in their bill was obtained by fraud and undue influence. So far as the allegations in this bill are concerned we are obliged to consider William Witmer compos mentis at the time the papers were executed for the reason that a court of equity has no jurisdiction to declare him otherwise. The laws of Pennsylvania provide a complete statutory proceeding for this purpose, and if the allegations contained in the bill are true the plaintiffs have a |