less he produced some corroborative | circumstances equivalent to the testiproof. His counsel stated that he could mony of another witness; and the unnot offer any such proof, and his testi- supported and contradicted testimony of mony, upon this point, was, therefore, one of the parties is insufficient." Pepexcluded. Upon this state of facts, the per & Lewis's Digest of Decisions, Vol. case was submitted to the jury, with in- 6, pl. 10292, etc. If, then, this be the structions that, "if the receipt was signed law, it follows that the plaintiff could by Mr. Doerr, and is a receipt to March not contradict nor explain his receipt, 31, 1903, then your verdict should be for for, as we have already said, his counsel the defendant. If it is not, and the expressly admitted, when he made his $125.00 has not been paid, then the ver- offer, that he had no corroborating proof. dict might be for the plaintiff for $125.00, with interest from April 1, 1903." A receipt for money is prima facie evidence of payment; but it is not conclusive, and is subject to explanation. ... Fraud, accident or mistake would be sufficient to avoid such an instrument, but in such a case the cause of avoidance should clearly appear." Guhl vs. Frank, 22 Sup., 531. Such receipts, then, are placed in the same category as other written instruments which are made the depositories of the solemn agreements of contracting parties. Rhoads' Estate, 189 Pa., 460; McGahren vs. Insurance Co., 28 Sup., 47. When parol testimony tending to impeach such a receipt is evenly balanced by contradictory evidence of like character, the receipt must control and cannot be set aside. MacDonald vs. Piper, 193 Pa., 312; Flynn vs. Hurlock, 194 Pa., 462; Ogden vs. Philadelphia, etc., Traction Co., 202 Pa., 480. The rules as to the setting aside or disregarding written contracts are familiar. A written agreement is presumed to contain the whole contract between the parties, and the jury must so find, unless satisfied by clear and convincing evidence that another part of the agreement was in fact made at the time, but, by fraud, mistake or accident, omitted from the writing." Jessop vs. Ivory, 158 Pa., 71. For this reason, "the rule as to the evidence required to move a Chancellor to decree a reformation of an instrument, and, therefore, necessary to permit the question of fraud, mistake or contemporaneous oral agreement to go to a jury, has been applied by holding that such an averment must be sustained by the testimony of at least two witnesses, or one witness and corroborating We think the case was properly submitted to the jury, and with their conclusion we make no complaint. The rule to show cause why a new trial should not be granted is, therefore, discharged. Rule discharged. C. P. OF LANCASTER COUNTY. Kauffmann vs. Kauffmann. Promissory note-Consideration-Contemporaneous oral agreement-Affidavit of defense. In a suit by the payee's executors against the maker of a promissory note an affidavit of defense is sufficient which avers that it was ing been paid, and was given to satisfy the without consideration a prior indebtedness having been paid, and was given to satisfy the payee's children under agreement with the payee that it would not be collected and the maker was to pay him one hundred dollars a year until his death when it was to be canceled. lars, without defalcation for value re- sideration, and while the claims made are ceived, To the statement filed, the defendant filed an affidavit of defense, in which he averred that the note was given without consideration; that, prior to 1894, he was indebted to John H. Kauffman, but that, on August 14, 1895, he, in full payment of said existing indebtedness, transferred a certain judgment of $6,300, entered to January Term, 1894, No. 1,114, in which he, the said E. H. Kauffman, was the plaintiff, and Amos D. Murry was defendant; that on or about April 12, 1900, John H. Kauffman requested him to sign the note in suit, representing that it would never be collected, and was simply for the purpose of satisfying his children, who were constantly annoying him about the same; that it was further agreed that the defendant, on each succeeding year, was to pay to said John H. Kauffman one hundred dollars, so long as John H. Kauffman lived, and, at his death, the note was to be discharged, canceled and given up, and accordingly one hundred dollars was paid each year from 1901 to 1908, inclusive. In a supplemental affidavit of defense, the defendant, in addition, states that the note was given merely as a memorandum of their agreement that the defendant was to pay John H. Kauffman one hundred dollars each year during his life, and that no sums were ever paid on account of the principal or interest of it; that the endorsements on the back of the note are not in the handwriting of John H. Kauffman, and were not made at the time and date the payments were made. Section 28 of the Act of May 16, 1901, P. L. 194, declares that "absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise." It would, therefore, seem that the affidavits of defense were sufficient. There is a distinct allegation of want of con not altogether harmonious, some essential features of them, if established, may constitute a defense. Of course, upon the trial, the defendant will not be a competent witness. It, however, is to be presumed at this time that he can establish his case by two competent witnesses, and thus overturn the effect of the writing. If he fails to do this upon the trial, his defense will not avail him. I am of opinion that the rule for judgment should be discharged. Rule discharged. Legal Miscellany. Chief Justice Mitchell, in a remarkable speech at the dinner given in his honor by the Alleghany Bar, October 28, 1909, said in part: * But The close of a judicial service of thirty-eight years, a little more than half my entire life, has some elements of regret, if not of positive sorrow. sharp reminder that your days of active usefulness are over. I make no pretence of a stoicism which would close its eyes to this feature of this occasion. there is some relief in the feeling that the close has come before working capacity has gone, and that in the future no legal Gil Blas will be tempted to point out that the Chief Justice's latest opinions, like the good Archbishop's sermon, had a smell of the mortuary. But the crowning consolation will be that the work, now that it is done, has met the indulgent approval of the Bar. procession, with Sterrett at one end wanting to leave everything to the jury, Green at the other wanting to take everything away from the jury, and the rest straggling along between at different paces, depending on different mental temperaments. "Medio tutissimus ibis" wrote the Roman poet, and we may be permitted to hope that we have followed the safe medium line as nearly as the ever-varying and tortuous course of unexpected injuries permits. I am sure that my brother Fell, as well as myself, both having had a long experience with juries as well as arguments in court, always have a slight feeling of satisfaction that we are on familiar ground when the call of the list strikes an accident case. times more than half through. But I found that with days only twenty-four hours long and only six of them in a week, it was impossible to accord to counsel all the time that their enthusiasm in the case and their perhaps recentlyacquired learning would like to have. This was strengthened by my experience in the first case argued after I came on the Bench. It was an appeal from a conviction of murder, and the sole point involved was the exceedingly technical one that the sheriff of the county had made the information before the justice, upon which the prisoner was arrested and had subsequently made the arrest himself. Notwithstanding the technical character of the only question involved, counsel devoted his entire hour to discussing the merits of the case, in spite of repeated cautions by Chief Justice. Paxson that they were outside of the record. Chief Justice Paxson was a very positive man, and sometimes rather abrupt in manner, and he had no hesitation in chopping off counsel when the time was up with very little ceremony. When Chief Justice Sterrett came to preside, the Bar generally thought they found a change of practice, but really it was only a change of manner. The mild and courteous manner in which Chief Justice Sterrett would warn counsel that they were approaching the end of their allotted time made a contrast which seemed like a change of substance. Among the most interesting reminiscences to myself is a glimpse of the old court-I mean before the amendment of 1851, by which judges became elective. When a youth of sixteen or seventeen, showing some out-of-town friends through Independence Hall, then generally known as the State House, we wandered into the the Supreme Court. Chief Justice Gibson was then presiding, and I remember to this day his stalwart form and imposing presence, though he was then an old man. I have heard from some of the seniors how cases were argued at that day. No printed paperbooks were furnished, and perhaps not even a short brief of the authorities. On the calling of the case the Chief Justice took the record, looked it over and then so it went on down the line. When the I may be permitted before leaving the Junior Justice had finished his examina- subject to state the present practice, tion, the Chief Justice then invited the which is not to notice the clock too counsel for the plaintiff in error. to strictly so long as counsel is discussing "break the case"; that was the phrase the merits of his case, not repeating himthen used. It was a slow process, but self and not dilating too long on the the court was not pressed for time. immaterial points. That has been the aim of the practice, however successfully or otherwise it may have been carried out. How long what is known as the hour rule has been in existence I do not know, but certainly some years, and a limitation of time in some method must have been in force long before the hour rule. I can remember hearing a case in which Mr. McMurtrie, of Philadelphia, began to complain rather brus * * * * * In the matter of time in the conduct of the business of the court, I may refer to what is known as the hour rule, the limitation of time for argument. I came to the court greatly opposed to it, as not only a restraint upon counsel, but as a disadvantage to the judges in breaking off their examination of points in the paper-book before they were some * * * * * quely that his colleague, Mr. Brightly, had left him no time, but had taken the whole allotted time for himself, when Judge Sharswood leaned forward and said pleasantly, "To express that poetically, Mr. McMurtrie, you might say, 'Behold, how Brightly breaks the morning.' Mr. McMurtrie, who was a great lawyer, but totally deficient in the sense of humor, regarded this remark as very unseemly levity on the part of the court. At the banquet given to Chief Justice Agnew, to which I have already referred, a toast was given to the Bar of Allegheny, old and young." Mr. Dalzell, then a veritable junior, spoke for the young, and Mr. R. M. Gibson for the older. In the course of the latter's address I found this rather amusing passage: "They (the judges) are to know that there are times in the life of the most patient member of the Bar when the judges do not stand nearly so high as to-night. And this is when he has lost his pet cause. "I can assure you, Mr. Chairman, that on such an occasion he takes a most desponding view of the ability of the Supreme Court and of the judges generally of the present day. He has toiled through the fact-fog of a trial at bar; has had to listen to his opponent's most illogical and even unlawyerlike-but somehow or other taking-jury speech; has seen with sadness the judge taken with some of his views; has even seen the jury, who, until then, were clearly with him, madly misled by the judge. "But now, Mr. Chairman, he has reached the court of last resort, the region of unclouded law. He has a costly and ponderous paper-book, and his client is on the back benches to see him at work before the Great Court. He sees his paper-book read through in four seconds and a-half, and learns with dismay that he has but fifteen minutes left for debate; the first five of which are devoted to interruptions from the Bench, and the last five to shoving the paperbooks into drawers. Now, after all this, if he gains his cause, that lawyer takes a hopeful view of things generally, and may even go so far as to compare the present with the old Bench. "But, Mr. Chairman, if he lose his cause, as in this day of affirmings and Per Curiams he is pretty certain to do, then, Mr. Chairman, is it putting it too strong to say, through you, to the judges of the Supreme Bench, that he will take a desponding view of the judiciary, and for a time have doubts of the permanency of free institutions? There are few things more trying to the pillars of the temple of liberty than a lost lawsuit." I had not the pleasure of knowing Mr. Gibson. I hope he is still living, and if so, I would like to hear his opinion on the modern practice. I doubt if the most pungent critic of the present day would describe the trials and tribulations of counsel in any severer terms than he used thirty-one years ago. It will be noticed that Mr. Gibson classes interruptions, affirmances and Per Curiams together as evils of the day. As to the affirmances, I think I must leave that to some of the judges of the Common Pleas to say whether they are too frequent or not. As to Per Curiams, I will only quote the remarks of a wellknown member of the Northumberland County Bar: "Some fellows say they don't like these Per Curiam opinions, but for my part I like them just as well as the others-when they are in my favor." *** "I am afraid Dulby is putting an brains." "Yes," answered Miss Cayenne; enemy into his mouth to steal away his "and it is a case of petty larceny, at t." O. C. ADJUDICATIONS. Isaac Leaman, E. Lampeter, $19,103.28. Amos L. Zuck, W. Earl, $237.16. Ida D. Livingston and Jane Livingston, Salisbury, $1,294.07. Opinion: Estate of Andrew Laukhuff, dec'd. Exceptions dismissed and adjudication confirmed absolutely. LANCASTER LAW REVIEW.ciently set out in the affidavit of defense to meet all the requirements in such cases. There is nothing in the state VOL. XXVII.] MONDAY, FEB. 7, 1910. [No. 14. ment to show that the admission by the Common Pleas--Law. C. P. OF LANCASTER COUNTY. Bard vs. Johns. defendant, that the sum stated in writing on the note as due, was a settlement of all accounts between them. If such averment had been made, it would have been necessary for the defendant to have stated that the amount claimed for professional services, which he now claims as a set-off, were admitted through fraud, accident or mistake, or the writ Set-off-Settlement-Affidavit of de- ing would have the effect of barring all fense-Professional services. In a suit on a promissory note on which the parties have signed an endorsement that a certain portion of the original indebtedness remains due at that date, an affidavit of defense is sufficient which sets off fees for professional services greater than the amount due earned by the defendant as attorney for the plaintiff, mostly prior to such endorsement, there being no averment in the statement that the endorsement referred to a settlement of all accounts between the parties. October Term, 1909. No. 50. Rule for judgment for want of a sufficient affidavit of defense. H. M. Houser, for rule. John E. Malone and Herbert Obreiter, contra. such claims up to that date. In the absence of such averment we are bound to conclude that only actual payments, or agreed items of credit, were considered by the parties when they agreed that the sum of $134.74 was due, and it was not intended to, and consequently did not, preclude the defendant from offering as a set-off to the balance due any claim which he had against the plaintiff at that time. We must therefore discharge the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense. C. P. OF LANCASTER COUNTY. January 15, 1910. Opinion by HASS- Martic Township School District vs. McCall LER, J. This is an action to recover the amount due on a promissory note. The note is dated October 14, 1896, and is made payable four months after date. Various payments have been made on it, and on April 1, 1907, the following endorsement was made, "Due $134.74 on within note as of April 1, 1907", which was signed by both parties to this suit. In his affidavit of defense, the defendant claims a set-off against the note to the amount of $175.00 for professional services to the plaintiff as his attorney, | and states fully what these services were and what they were worth. The plaintiff, alleging that the affidavit of defense. is not sufficient, has obtained this rule for judgment for want of a sufficient. affidavit of defense. We think the items of set-off are suffi Ferry Power Company. Taxation-Electric power companies— Acts of June 10, 1893, P. L., 412 and July 2, 1895, P. L., 425. An electric water-power company chartered under the Acts of June 10, 1893 and July 2, 1895 is a quasi-public corporation and that part of i's real estate which is necessary for the exercise of its corporate franchises is not liable to local taxation, but that which is not necessary is liable. December Term, 1909. No. 70. Coyle & Keller, for plaintiff. W. U. Hensel, for defendant. January 15, 1910. Opinion by HASSLER, J. The question involved in this case is whether all or any of the real estate of the defendant company located in Martic |