served with process. Their appearance here is entirely voluntary, having not even leave to intervene as a basis for their action. It requires no citation of authority for the proposition that only a party to a controversy can question the pleadings.

Now, December 18, 1922, motion to strike off plaintiff's statement is overruled.

LEHIGH VALLEY NATIONAL BANK v. CRAIG. Practice, C. P.-Plaintiff's Statement-Affidavit of DefenseRule for Judgment.

A judgment had been opened and the plaintiff, in his statement of claim, then declared upon a promissory note for which the judgment was given as collateral. Defendant filed an affidavit of defense, evidently intended as a statutory demurrer, or an affidavit of defense raising questions of law. Plaintiff entered a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense.

Held, that the case should have been set down for argument upon a demurrer, or upon a motion to strike off the statement of claim. Hence, the rule was discharged.

In the Court of Common Pleas of Lehigh County. No. 304 June Term, 1919. Lehigh Valley National Bank v. Addie I. Craig. Rule for Judgment for Want of a Sufficient Affidavit of Defense. Rule Discharged.

Adams Dodson, for Plaintiff and Rule.

H. C. Cope, for Defendant.

Reno, J., December 18, 1922. The judgment entered to this number and term upon a confession of judgment signed by Joseph R. Craig and Addie I. Craig, his wife, having been opened as to Addie I. Craig, (See, Lehigh Valley National Bank v. Craig, 10 Lehigh C. L. J., 8) plaintiff has filed a statement of claim. Instead of declaring upon that note upon which the judgment was entered plaintiff bases its right to recovery upon another note, that is, a promissory note for which the judgment note was given as collateral. The defendant has filed an affidavit of defense which, although not specifically called a "statutory demurrer" or an "affidavit of defense raising questions of law for the decision of the court" is

evidently intended as such, raises only one question, namely: Whether the action can be maintained upon the promissory note. Plaintiff entered a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense and now urges us to enter judgment for it upon the ground that (a) if the affidavit was intended as a defense to the merits it is insufficient because it fails to deny specifically the allegations of plaintiff's statement and (b) if intended as a statutory demurrer it is bad because it is a speaking demurrer in that the facts concerning the judgment note are therein alleged.

Unquestionably, the affidavit of defense is a speaking demurrer: "That is, one which alleges new matter, in addition to that contained in the narr, as a cause for demurrer": Bovaird v. Barrett, 78 Pa. Super. Ct., 68, 71. But that circumstance does not permit us to enter judgment for plaintiff for want of a sufficient affidavit of defense: Shifferstine v. Sitler, 264 Pa. 290; Hutchinson v. Marvel. 270 Pa. 378. The case should have been set down for argument upon the demurrer or, if plaintiff desired to test its sufficiency in form, upon a motion to strike off the demurrer: Rhodes v. Terheyden, 272 Pa. 397, 401.

In these circumstances we should confine ourselves to a discharge of the pending rule but in order to save time and further argument we shall regard the case as having been set down for argument upon the demurrer and having determined that the demurrer cannot be sustained enter the appropriate order. We realize that this disposition of the case does not solve the real controversy between the parties, (namely, whether plaintiff's action should be upon the judgment note or upon the note for which the judgment is collateral) but that question we must decline to decide until such time as it is properly raised.

Now, December 18, 1922, rule for judgment for want. of a sufficient affidavit of defense is discharged; the questions of law raised by the affidavit of defense for the decision of the court are not sustained; and the defendant is required to file affidavit of defense within fifteen days after the service upon her of a copy of this order.

Justice of the Peace-Record-Return of Constable's ServiceConclusiveness-Parol Evidence.

A constable's return regular on its face, showing service, cannot be contradicted by parol evidence.

An appeal nunc pro tunc from a judgment of justice of the peace cannot be allowed where the parol testimony advanced for relief contradicts the constable's return.

An appeal nunc pro tunc can only be allowed when the evidence which calls for its exercise is properly cognizable by a court of law.

In the Court of Common Pleas of Lehigh County. No. 418 April Term, 1920. R. N. Wetherhold v. Arthur Rex. Rule to Show Cause why an Appeal nunc pro tune from a Justice's judgment should not be allowed. Rule Discharged.

Thomas F. Diefenderfer, for Plaintiff.

Hyman Rockmaker, for Defendant, and Rule.

Reno, J., December 18, 1922. We wish that we could grant the prayer of the petition. The depositions persuade us that, notwithstanding the constable's return, the petitioner was not served with the alderman's summons by "handing a true and attested copy thereof to an adult member of his family at his dwelling house." They persuade us, also, that the petitioner, the defendant, had no knowledge of the pendency of the action or of the entry of judgment against him until advised thereof by letter of the Alderman dated almost two years after rendition of judgment. Unquestionably, such facts are a potent appeal for relief. Unfortunately, however, these facts constitute a direct contradiction of the constable's return and that return is conclusive and cannot be contradicted by parol testimony: Holly v. Travis, 267 Pa. 136.

It is altogether true, as urged by petitioner, that the granting of an appeal nunc pro tunc is a matter resting within our sound discretion which is not subject to appellate review except for manifest abuse: Kutz v. Skinner, 7 Pa. Super Ct., 346. But the term "discretion" implies the absence of a hard and fast rule regulating our conduct: Norris v. Clinkscales, 47 S. C. 488. It is sound discretion guided by law: Schlaudecker v. Marshall, 72 Pa. 206. It is not a license to a judge to substitute his will for that of the law: Osborne v. Bank, 22 U. S., 738.

Therefore, it cannot be exercised when the evidence which calls for its exercise is not properly cognizable by a court of law. Or to state the principle differently, the Supreme Court having determined that a constable's return may not be contradicted by parol testimony we are not vested with power or discretion to grant relief predicated exclusively upon a consideration of such testimony.

Now, December 18, 1922, the rule to show cause why an appeal nunc pro tune should not be allowed is discharged.

ESTATE OF ELIAS BORTZ, DECEASED. Decedents' Estates-Wills-Donee Claiming Adversely-Election-Administrative Expenses-Advances to Estate-Auditor's Report-Exceptions.

A testator made certain provisions as to farming stock in which a son had a benefit, directing that finally it and all his estate be sold. He gave a certain legacy to the son, and an interest in the residuary estate, providing for the voiding of any legacy given to one contesting or disputing the provisions of the will. The farming stock was claimed and retained by the son and title found to be in him. The son had also taken a part of his legacy. Held, that the son was required to elect whether to accept the legacy in the will or maintain his title to the stock, but that as yet he had not, by unequivocable acts, so elected.

Accountant personally advanced certain expenses for benefit of estate, testifying first, that they were still owing, and afterwards, that he had appropriated $750.00 of the funds of the estate to his own use, $440.84 thereof being to repay him for these advances, and the balance to apply on account of legacy, and the auditor found in favor of the claimant on his latter testimony. Held, that the court would not reverse the auditor.

An exception that accountant should be charged with interest on said $750.00, his mother having a life estate therein, will be dismissed, the estate of the mother not being represented upon the record. Exceptions to accountant's commissions dismissed.

In the Orphans' Conrt of Lehigh County. In re First and Final Account of John A. Bortz, Executor, etc., of Elias Bortz, Deceased. Exceptions to Auditor's Report. Sustained in Part.

Richard W. Iobst, for Accountant, John A. Bortz.
James F. Henninger, for Exceptant, Laura Hiskey.

Reno, J., January 2, 1923. Elias Bortz died August 10, 1912 and his will dated September 5, 1908, was probat

ed September 18, 1912. The provisions of his will which are deemed necessary to an understanding of the controversy, are briefly summarized as follows:

Item 1. Provision for payment of debts and funeral and administration expenses.

Item 2. Bequest to wife of entire estate for her life or as long as she remained his widow. Bequest to John A. Bortz, son, of one thousand dollars.

Item 3. Bequest to daughter Maggie Weidner of two hundred dollars.

Item 4. Bequest to granddaughter Edna and Mabel Weidner of twenty-five dollars each.

Item 5. "It is my will and I do order that in case my son John A. Bortz and my said wife, Esther Bortz shall decide to quit farming that then and in that case they shall sell all my farming stock for the best price that can be gotten for the same at public sale or sales and for the money which they realize from the sale of my stock they shall buy a suitable home for my said son and my wife which they shall occupy during the life time of my wife. After the death of my said wife I order and direct that my executor hereinafter named shall as soon as conveniently may be after the decease of my wife, sell and dispose of all my real estate and personal property and for that purpose I do hereby authorize and empower my said executor to sign, seal, execute and acknowledge all such deed or deeds of conveyance which may be requisite and necessary for granting and assuring the same to the purchaser or purchasers thereof in fee simple." Provision that if any legatees controvert the will or any of the estates or dispositions thereof, the legacies of such persons shall cease and determine.

Residuary clause. Bequeaths balance to John A. Bortz, Maggie Wiedner, Horace Bortz, William Bortz and Laura Hisky, executor, John A. Bortz.

The wife, Esther Bortz, survived her husband, did not remarry and died December 26, 1920. The executor filed no account until February 8, 1921, and that account revealed assets of decedent of $1,793.17 in cash and a nickel plated watch valued at $1.50, a total of $1,794.67. Against these charges the accountant claimed credit for administration and funeral expenses omounting to