Anna Hess v. John F. McAleer, Admr. of Harry McAleer, dec'd. pay when the bartenders were paid, and he replied that it would be all right, that she would get it all together some day. He also testifies that the decedent never gave her any money when she made these requests. The testimony of Andrew Hess, the other son, who is ten years old, is to the same effect. The credibility of both these witnesses was purely a question for the jury. We do not agree with the defendant's contention as to this testimony limiting the time when the regular payments stopped to the time when they heard the conversations. The mere fact that in his statement he conceded that she had not been paid regularly, but that she would get it all together some day, showed that she had not been paid regularly, and furnished an additional reason to justify the jury in finding that the presumption of periodical payments had been rebutted.

As the jury found that the presumption of periodical payments of wages to the plaintiff had been rebutted, the burden was upon the defendant to show that she had been paid. To show this he proved that she said a number of times that she had been paid, and she gave a receipt for the last four weeks of her services, in which it was stated that she was paid in full, which is the defense contained in the affidavit of defense. The jury were not convinced that she had been paid, as their verdict was in her favor.

Among the reasons for a new trial is one alleging that since the trial it was discovered that the plaintiff was a married woman whose husband is living, and therefore she could not enter into an engagement with the defendant's decedent. Depositions have been taken in support of this reason, and it has been conclusively shown that the plaintiff was married, that her husband disappeared ten years ago, that she has heard rumors that he was dead, but has no knowledge on the subject, and that she has not heard from him during all that time. Under these circumstances she could not contract a legal marriage with another person, but that does not affect the case, as the fact was proven and not contradicted or questioned at the trial, that she had entered into an engagement of marriage with the defendant. Numerous witnesses testified to this, and that all preparations had been made for the wedding. These uncontradicted facts, showing the intimate relations existing between them, leading up to and resulting in an engagement to marry, is what rebutted the presumption of periodical payments of the wages, and it can make no difference whether she was able to contract a valid marriage or not, as that would not show that the intimate relation did not exist. This after-discovered testimony, therefore, is not sufficient to justify the granting of a new trial, because we do not believe that it would result in a different verdict if it, with the other testimony, was again submitted to the jury, and one of the requirements of after-discovered testimony, to justify a new trial, is that it is likely to produce a different verdict.

We are not convinced that any error was committed in the admission or rejection of testimony or the submission of the case to the jury, which includes our answers to the points submitted at the trial. We, therefore, discharge the rule for a new trial. Both rules discharged.

Court of Common Pleas of Lancaster County

O. D. Brubaker v. The Pennsylvania Railroad Co.

Damage by sparks from locomotive-More specific statement.

A plaintiff in an action for damages for an injury set forth in the statement as that "the defendant carelessly and negligently set fire by sparks from one of its engines," etc., will, on motion, be ordered to file a bill of particulars, stating the time the engine passed and the fire started, the number of the engine and the direction in which it was going, or state his inability to supply any of these particulars.

Rule for a more specific statement. August Term, 1918, No. 125.

John A. Nauman, for rule.

John M. Groff, contra.

April 17, 1920. Opinion by HASSLER, J.

The defendant asks, in this proceeding, for a more particular statement, and sets forth in his petition in what particulars the statement should be more specific. The injury complained of by the plaintiff, as set forth in his statement, is that the "defendant carelessly and negligently set fire to by sparks from one of its engines leaves and other waste material." It does not appear in the statement how the defendant was negligent by setting fire with sparks. It would be proper for him to prove under this statement that the carelessness and negligence was, not having a proper spark-arrester on the engine, or one that was not in good condition, so that it emitted sparks, or that it was improperly operated by those in charge of the engine. In order to prove any of these acts of negligence it will be necessary for the plaintiff to prove what engine, either by number or the time it passed the place where the fire occurred, emitted the sparks which caused the fire, so that, if he depends on any of these acts of negligence, he must know what the number of the engine which caused the fire was, or about what time it passed the place where it did occur. The defendant is entitled to know what engine it was, if the plaintiff has that information, so that it can prepare its defense to plaintiff's claim, and prove, if such are the facts, either that there was a spark-arrester on it, or that it was in proper condition, or that it was properly operated by those in charge of it. We, therefore, make absolute the rule to show cause why the plaintiff should not file a more particular statement, and direct that he files a bill of particulars stating, (1) the number of the engine which caused the fire, (2) the time of day when it occurred, (3) the direction in which the engine was moving, and (4) the time at about which it passed the point where the fire started. If the plaintiff is unable to specify any of these particulars it will be sufficient for him to state, in writing, his inability to do so.

The rule to file a more specific statement is made absolute.

Court of Common Pleas of Lancaster County

Carpenter v. Wolf.

Division fence-Rebuilding of - Proceedings under Act of April 14, 1905-When void-Notice.

A report of borough auditors as to the rebuilding of a partition fence under the Act of April 14, 1905, P. L. 162, and proceedings thereon are void where there was no notice given to and no personal attendance by the party charged with the costs of repairs, and judgment for defendant should be entered on appeal from the judgment of a magistrate founded on said report.

A visit of the auditors to the defendant after they had gone over the ground and viewed it and partially made up their decision, cannot be construed as a voluntary attendance and participation in the proceedings by him.

Rules for a new trial and for judgment n. o. v. 1917, No. 43.

John E. Malone, for defendant and rules.

S. R. Weaver and B. F. Davis, contra.

April 17, 1920. Opinion by LANDIS, P. J.

October Term,

The plaintiff and defendant are adjoining property-owners, living on Main Street, in the Borough of Terre Hill. On April 17, 1917, a portion of the southern half of the fence between them blew over into the defendant's garden, and it lay there for two or three weeks. After consulting counsel, the plaintiff summoned the borough auditors to come upon the premises to decide who should fix the fence. The three auditors, who were B. Y. Plank, H. L. Slater and Henry L. Stoner, met on the ground, and subsequently they filed a report with H. B. Becker, Esq., a Justice of the Peace. After forty days had elapsed, the plaintiff got a man to make the fence, and, having paid the costs of the work, he handed the bill over to a Justice for collection. Judgment having been rendered in favor of the plaintiff, the case comes before us on appeal.

It was testified that, in 1906 or 1907, the plaintiff and defendant had a conversation about the fence, and that Wolf agreed that he would fix the southern portion, and that Carpenter was to keep the northern portion in repair. After the fence had blown down, Carpenter neither saw Wolf about it nor did he ask him to put it up. He, however, saw 'Squire Plank and told him to notify Wolf to make the fence. Plank notified Wolf by telephone, and, there having been some words between them, he told Wolf that the auditors would have to view it. The auditors met upon the ground. They gave notice to neither party of the time and place of meeting. They viewed the fence and meas

VOL. XXXVII, No. 28

Carpenter v. Wolf.

ured it up, that is, saw the deeds of other property-owners in that vicinity. Then they went to Mr. Wolf's house and spoke to him about it; but the result of the interview is not made clear by the testimony. They admit that no witnesses were called before them, but 'Squire Plank said they consulted with different land-owners. All this was done before they saw Wolf. Plank said they tried to tell Wolf what they were going to do, but could not. His words were: "We tried to talk business, and why he landed on me is a question, but I had one of the worst tearings-out that I have had at the hands of any man." After they left Wolf, they proceeded to 'Squire Becker's office, and a report having been made out, they all signed it. Mr. Slater and Mr. Stoner both testified that Plank said he had looked into the matter and it was Wolf's fence to make, and, on the faith of this statement, they signed the report, which reads as follows:

"We the undersigned auditors of the Borough Terre Hill upon Complaint of Davis Carpenter in regards to partition fence between the properties of the said Davis Carpenter and H. J. Wolf a distance of one hundred eighty two feet and six inches from Main St. to an alley in the rear of said properties.

'The fence being in bad condition a portion of which is lying down on the property of Davis Carpenter.

"The probable cost of repairing would be twelve dollars. "The section in dispute being the rear half to the east side of the property of said Davis Carpenter.

According to the fences of adjoining property holders it would be the line or section of H. J. Wolf.

"In witness whereof we have hereunto set our hands and seals this 27th day of April A. D. 1917.

"B. Y. PLANK.

H. L. SLATER.
HENRY L. STONER."

On May 7, 1917, a notice was served on the defendant by 'Squire Becker of the auditors' findings, and thereupon the plaintiff proceeded to make the fence and bring suit against the defendant for the costs thereof, as aforesaid. Under these facts as they appeared upon the trial, the Court directed the jury to find for the plaintiff for $21.30, and reserved the question of law whether he was entitled to recover.

The Act of April 14, 1905, P. L. 162, provides:

"That from and after the passage of this Act, owners of improved and occupied land shall erect and maintain an equal part of all line or division fences between them, nor shall any such owner be relieved from liability under the provisions of this Act except by the consent of the adjoining owner. And if any owner of such improved and occupied land shall fail or neglect to erect or maintain his, her or their share of such line or division fence, the party aggrieved shall notify the township

Carpenter v. Wolf.

or borough auditors, whose duty it shall be to examine such line or division fence, so complained of; and if they find said fence sufficient, the complainant shall pay the costs of their services, which shall be two dollars for each day's service; but if they find such fence insufficient, they shall so report to à Justice of the Peace, residing in the county where such fence is located, designating points and distances of such fence, whether a new fence is required or whether the old one can be repaired, and the probable costs of a new, or the repair of the old fence; and said Justice shall notify the delinquent owner of such improved and occupied land of the auditors' report, and that his part of said fence, as found by the auditors, be erected or repaired within forty days from the date of such notice; and if such notice be not complied with, the aggrieved party may cause said line or division fence to be erected or repaired, and the costs thereof collected from the delinquent owner of such improved and occupied land, as other debts are collected by law."

This Act and its predecessor, the Act of March 11, 1842, P. L. 62, were reviewed by the Superior Court in Turner v. Richards, 34 Sup. 624. It was there said: "The Act of 1842 constituted the board of township or borough auditors a sort of pie-poudre tribunal with authority to investigate and summarily determine controversies in regard to the erection of division fences. The purpose of the enactment was to provide a means of disposing of such questions expeditiously and with slight cost to the parties interested. The auditors when acting as viewers have judicial functions, but do not constitute a court, nor is their decision subject to appeal. This duty of the auditors has for a long time been looked upon with favor by the legislature and the courts, and the statute relating to their action should be interpreted as far as possible in support of their proceedings. No particular form is made essential to the validity of their report, and it has, therefore, been held that, where their duty has been substantially performed, their cer tificate should have all the force intended by the statute: Shriver v. Stephens, 20 Pa. 138. . . . Under the Act of 1842, they were directed to view and examine the fence and to make out a certificate in writing, setting forth whether in their opinion the fence, if one has already been built, is sufficient, and if not, what proportion of the expense of building a new or repairing the old fence should be paid by each party. They were also to set forth the sum which each party ought to pay to the other in case he shall repair or rebuild his portion of the fence and a copy of this certificate was to be delivered to each of the parties. The Act of 1905 requires the viewers to examine the division fence, and if they find it insufficient, they are to report to a justice of the peace residing in the county whether a new fence is required or whether the old one can be repaired, and designate points and distances of such fence with the probable cost of a new fence or the repair of the old fence. The justice is required to notify the delinquent owner of the