ment admitted to probate was only the testamentary paper, so to speak' in controversy, without the N. B. clause, for it appears to us that it must as a whole stand or fall.

Before the statute of April 22, 1856, P. L. 533, it is conceded no title would pass, but with that law before us, how is it possible to avoid its legal effect? That this cannot now be done will appear for many reasons, among which are the following? The register of wills is a judge, and the admission of a will to probate is a judicial act: Holiday vs. Ward, 7 Harris, 485; Lovett vs. Matthews, 12 Harris, 330. In Kenyon vs. Stewart, 8 Wright, 179, it was held that the act of the register is presumptive evidence of the validity of the will. Hence we must presume, especially after the lapse of years, that such evidence was presented to the register as induced him to admit this entire paper to probate. The register certifies that two witnesses declared that the testator "signed " this paper, presumptively, "at the end thereof;" or possibly, while the instrument does not now establish the fact, and while only the usual certificate is appended, the register may have heard testimony which satisfied him that the testator was prevented from "the extremity of his last illness" from affixing his signature.

However the fact may be, the decree of the register stands, and that it cannot be collaterally attacked has long since been decided: Carpenter vs. Cameron, 7 Watts, 51; Holiday vs. Ward, supra. Even as late as Guthrie vs. Kerr, 4 Norris, 305, the doctrine is affirmed, and letters testamentary issued are evidence of probate: Lovett vs. Matthews, supra; Carpenter vs. Cameron, supra. If this entire paper had been admitted to probate by a quasi judicial officer, if a decree has been made more than fourteen years ago, which, in any event, cannot be collaterally attacked, then the act of assembly of April 22, 1856, P. L. 533, which declares that the probate by the register of a will devising real estate shall be conclusive as to realty unless contested within five years, applies with overwhelming force, and not only settles the question, but concludes everybody: Warfield vs. Fox, 3 P. F. S. 382.

Our attention was called during the argument to Hegerty's Appeal, 25 P. F. S. 503, wherein it was decided, "that heirs at law were not concluded by section 7, act of April 22, 1856, from claiming the devised property. While we find much in that case which supports the views we have taken, we find nothing which interferes with our judgment in this cause. In Hegerty's Appeal the case turned upon an interpretation of the will; here it is a question of its existence; there the court decided that an established will could not ou that account overthrow an act of assembly. Here we only hold that the act of a judicial officer, and the law of the land, have created a will which as a testamentary paper affecting real estate cannot now be disturbed.

We think we have established enough in this case to prove that the title tendered to defendant is not a marketable one, and therefore we must refuse to grant the decree prayed for and dismiss the bill. Gustavus Remak, Esq., for the bill.

Edward Olmsted, Esq., contra.

[Leg. Int., Vol. 36, p. 115.]

DARLINGTON et al. vs. ROGERS et al., Defendants, and the PRESCOTT INSURANCE Co., of Boston, Mass., Garnishees.

A writ of foreign attachment will lie against a foreign insurance company, as garnishee, doing business in this State.

Rule to quash writ of foreign attachment for want of jurisdiction. This is a foreign attachment issued by the plaintiffs, citizens of Pennsylvania, against the defendants, citizens of New York. The defendants suffered a loss by fire before the cause of action in this case matured; holding policies of insurance in the companies which are summoned as garnishees; said companies being in and doing business in this State, although incorporated by other States and foreign countries. The attachment being duly served on the agents of the companies designated by law.

For the rule, it was argued, that a proceeding by foreign attachment against a foreign corporation as garnishee, will not lie in Pennsylvania. Such proceeding is not within the intent of the acts of assembly establishing and regulating remedies and methods of procedure against such corporations in this State: Nash vs. Rector, 1 Miles, 78; Dawson vs. Campbell, 2 Miles, 170. The words "person" and "persons" in §§ 44 and 45, act of June 13, 1836, do not include foreign corporations.

"There is no act of assembly," said Sharswood, J., "which enables a party to garnish a foreign corporation in a suit against a third person:" Barron vs. Morrison, 2 Tr. & H. Pr. 826, a. D. 1849.

In accordance with this, it was held in 1862 or 1863, that "a writ of foreign attachment cannot be served on the agent of a foreign corporation so as to bind funds in the hands of the corporation as garnishee:" State F. & M. Ins. Co. vs. The Oglesby, 3 Luz. Leg. Obs. 158. Against the rule, it was contended, the word "process " includes attachment: Boyd vs. Canal Co., 17 Md. 195. Garnishment is a suit: 48 Ga. 353.

There being no decisions on the above referred to act exactly applicable, we resort to analogous decisions in our own and sister States: Fithian vs. R. R. Co., 7 Casey, 114; McAllister vs. Ins. Co., 28 Mo. 214; Brauser vs. Ins. Co., 21 Wis. 509; Myer vs. Ins. Co., 40 Md. 595.

Non-residents have all the privileges of our own citizens in bringing actions: Constitution U. S., 4th Art. 2d Sec.; Corfield vs. Coyell, 4 W. C. C. 380; Morgan vs. Neville, 24 P. F. S. 57; Bagby vs. R. R. Co., 35 Legal Intelligencer, 134; act 10th of April, 1869, Purdon, 1164.

If the corporations garnished were non-residents (individuals), and found here, attachment would be good: Morgan vs. Neville, 24 P. F. S. 57; Shollenberger vs. Ins. Co., 5 W. N. C. 411.

Opinion delivered March 15, 1879, by

LUDLOW, P. J.-This is a motion to quash the writ for want of jurisdiction.

Whatever may have been the decisions of the courts prior to the act of assembly of April 4, 1873, it seems to us, that the language of the 13th section of that act settles this controversy in so far however only as the present motion is concerned.

By the terms of that section the companies shall file with the insurance commissioners, a written stipulation, duly authenticated by the company, agreeing that "any legal process affecting the company served shall have the same effect as if personally served on the company within this State."

The language used, any legal process affecting the company, is very comprehensive, and imposes every legal liability consistent with its

terms.

It will be observed that this is simply a motion to quash; when the garnishee shall be called upon to answer, other and different questions may arise; at present it is not possible for us to decide that no property subject to garnishment is in the possession of the company within the State. Under the act of assembly the company have agreed to be affected by any legal process, and that is enough to sustain the process. Rule discharged.

Charles Chauncey, Esq., for garnishee.

Lewin W. Barringer, Esq., for creditor.

[Leg. Int., Vol. 36, p. 115.]

In re DEVEREUX STREET.-Petition of ELLWOOD ALLEN for a

mandamus.

To obtain a mandamus on the award of damages by a road jury, a rule to show cause why a mandamus should not be granted is the proper procedure to take.

Rule to show cause why a mandamus should not issue.

The petition upon which the rule was granted set forth that regular proceedings had been taken, and a road jury had awarded certain damages, and that the report of the jury had been confirmed.

The city solicitor, having sent word that he knew of no cause why a mandamus should not issue, the rule was made absolute.

Opinion delivered March 15, 1879, by

LUDLOW, P. J.-The Supreme Court having confirmed the rulings of Courts No. 1, 2 and 3, and decided that the procedure by mandamus is a proper one in cases of award by a road jury, we wish to indicate that the proper practice hereafter will be to take a rule on the city, as has been done in the present case, to show cause why a mandamus should not issue, even in cases where no objection to a mandamus is made on the part of the city solicitor.

Lewis Waln Smith, Esq., for the rule.

[Leg. Int., Vol. 36, p. 115.]

MARTIN vs. SMITH.

The holder of a promissory note who has been induced by fraud to exchange it for another that has been rendered invalid by an alteration, may sue the maker upon the original, if he would not be injured thereby.

Sur rule for a new trial.

T. Hart Smith purchased from James H. Mearns an interest in cer

tain patent rights for the sum of $1,000, for which Smith gave his two promissory notes of $500 cach to Mearns. These notes were dated June 1, 1877. Mearns sold one of these notes to Charles F. Martin on the 27th of June, 1877. A month or more later Mearns called on Martin and informed him for the first time that these notes had been given in payment of a sale to Smith of an interest in certain patent rights. Mearns said further that since he had sold one of these notes to Martin, he, Mearns, had learned that a note so given was invalid unless the words "given for interest in a patent right," were written on the face of the note, and Mearns said these words ought now to be put on the note which Martin held, so as to cure the defect and render the note valid in the hands of Martin. The latter replied that if it was necessary to do this in order to render the note valid in his hands, he was, of course, willing to have it done, since he, Martin, had purchased it in good faith and paid for it in full. Mearns then informed him, that he, Mearns, had had the other note given to him by Smith, and which was still in his hands, altered by the insertion of the necessary words, "Given for interest in the patent right;" that this last note had not been rendered valid, and as it was identical in date, amount, and all other particulars with the note purchased by Martin, it would save time if Martin would exchange notes with Mearns by giving Mearns the note which Martin had purchased, and which Mearns would have altered by the insertion of the necessary words, and take in lieu thereof the other of the two notes originally given by T. Hart Smith, and which had since been altered by the insertion of the words as already explained. Martin and Mearns then exchanged notes. The note having been protested at maturity for non-payment, Martin brought suit and declared on the note originally purchased by him, which did not contain the words "given for interest, etc." Martin contended that having been prevailed upon to make the exchange by a misrepresentation touching its validity, a court of equity would compel a return to him of the original note, and as in Pennsylvania, equity is administered through common law channels, he could sue upon the note originally purchased by him just as though the exchange with Mearns had not taken place. Upon the trial of the case a verdict was rendered in favor of the plaintiff. Defendant moved for a new trial. The rule for a new trial was discharged.

Opinion delivered March 15, 1879, by

LUDLOW, P. J.-The plaintiff in this case, in the usual course of business, and in good faith, bought a note. He was therefore a bona fide holder for value. Subsequently, and under a misrepresentation, he exchanged that note for one upon the face of which appeared the words "Given for interest in a patent right."

If the narr had been framed upon the last-mentioned note, doubtless it would have been error to have excluded the evidence rejected at the trial. Such, however, was not the case, and the rights of the plaintiff were exactly the same under the pleadings as though the original note, and it alone, was the subject of controversy. Under the testimony but two notes, each for $500, existed, and one of them was altered as above specified. The maker is not injured, and it would be a fraud upon the

plaintiff to permit this suit now to fail for any reason which could not have affected his title to the original note.

Rule discharged.

D. W. Sellers, Esq., for the rule.

Charles Hart, Esq., contra.

[Leg. Int., Vol. 36, p. 124.]

McMAKIN vs. MAGEE et al.

An owner of a dominant tenement may sub-divide it into as many parcels as he pleases, and the easement will be appurtenant to each, but he cannot extend or attach it to other premises which he may acquire.

Bill for an injunction. In equity.

The complainant's bill set out:

1. That he is tenant in fee of all that certain lot of ground with the two story brick messuage thereon erected, situate on the east side of Strawberry street between Market and Chestnut streets, in the city of Philadelphia, No. 35.

2. That Richard R. Sooy and George Wanamaker, trading as Wanamaker & Co., are tenants for years of premises adjoining on the north, numbered 33, which extend to Second street, in which is conducted by them a large restaurant.

3. That Thomas Magee is tenant in fee of premises on the west side of Second street numbered 44, which extending westwardly touches the eastwardly boundary line of the premises of your orator.

And your orator further saith:

4. That between the premises of your orator and that of the defendant, Thomas Magee, is erected a brick privy, one-half of which is on the premises of each, and that the same is drained wholly by a vitrified drain pipe passing through the premises of your orator, one-half of the expense of which was paid by your orator, and the maintenance and repair thereof is as to a moiety thereof also at the charge of your orator, and that no one not an owner or occupier of either of these houses has any right to use said privy, or drain offal through the same.

5. That the defendant, Thomas Magee, as your orator is informed, for a valuable consideration, has permitted the defendants, Richard R. Sooy and George Wanamaker, to open a door in the party wall, so that all of the customers of their restaurant shall be permitted to use said privy.

7. That the use of said privy by the defendants, Wanamaker & Co., is a nuisance; that it brings to said premises an unusually large number of persons, and that the danger of incendiarism is increased, and he is advised that defendant, Thomas Magee, cannot by license or otherwise increase the uses of said privy.

Your orator therefore prays:

A. That the defendants, Richard R. Sooy and George Wanamaker, trading as George Wanamaker & Co., be enjoined specially until final hearing and perpetually there after, from using the privy between the premises 44 South Second street and 33 Strawberry street.

B. That the defendants and each of them be decreed to close the