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cows, he telephoned to the plaintiff that The third reason is, that "the Court he had picked out two cows, stating what erred in overruling the defendant's offer they were, and asked the plaintiff the to show that one of the two cows in suit, price at which he held the pair. In an- for which defendant was charged fortyswer, it was stated that the price was five dollars, was warranted to be sound, $80.00. The plaintiff testified: "I asked and was an unsound cow, to wit, died him $85.00 for a certain pair of cows, of tuberculosis, from which it was sufand then, when he came on the farm, he fering or was infected at the time the didn't pick the pair, . . . but he and my defendant obtained the cow from the farmer picked on another cow that they plaintiff and at the time the warranty thought was more suitable, . . . and he was made." It will be remembered that came back to the 'phone and told me the defendant, under his own testimony, that he picked on a Jersey cow and a went to the plaintiff's stable and got the red cow, both springers, and wondered cows. There was no representation, what I wanted for them, and I told him therefore, made at that time. The only that I couldn't take less than $85.00 for talk between them as to the condition them. He said that he wouldn't give of the cows took place on the public eighty-five; that he would give eighty; road at their first interview. As has and I told him that I couldn't deliver been already said, no agreement was them for $80.00; if he wanted to buy then made. The plaintiff says that he them for $80.00, he had to take them then told the defendant that "the cattle away himself. So he came and took were sound because they were tested them away." According to the plain- with the tuberculin test on the 2nd and tiff's version, the sale was to be for the 3rd of November," 1911, and if they cash, the defendant saying that, if Esh- proved right, the defendant was to take bach would I wait until he comes up them, but there was to be no trial about through, he would give . . . the cash," it. The defendant admitted that he and that, after January 17, 1912, when bought one of the cows, and as to the he came through with a load of potatoes, other cow his defense was, that he was Book told him that he had sold his to haye the right to purchase it after it tobacco, and, when he delivered it, he became fresh, but that he never did so. would pay cash, and that he (Eshbach) If he never purchased the cow (and this said he supposed "it would be all was the one which he now says had right"; that he heard nothing more until tuberculosis), it made no difference about the 7th of March, when Book sent whether it was sound or unsound. If him a letter, enclosing a check for $35.00, he did purchase the cow with a waras payment for one of the cows, and ranty, it was his duty to return or to this check, Eshbach notified him, he offer to return it as soon as he discovwould not accept, and he, therefore, kept ered a breach of the warranty, or, in the check and produced it in Court, un- case he kept it, he should have showed used. The claim of Book was, that he the difference in the market value of the bought the one cow for $45.00, but that cow at the time the purchase was made the other cow he was to take to his place in good condition and as the cow was, until it became fresh, and if, at that affected with tuberculosis. He did nothtime, he concluded not to keep her, Esh-ing of this kind. His counsel offered to bach was to pay him $10.00 for the keep. prove that, on March 21, 1912, a veteriBook claimed that both cows had died. narian examined the cow and that she The testimony of Book appears to us to then had tuberculosis, "and that, from be somewhat confused, and the jury, no the symptoms, it must have existed predoubt, took that view of it and discred- vious to the time that the defendant got ited it. But be that as it may, if they the cow," and he also offered to show believed Eshbach and his witnesses, they that, "in a cow, symptoms may exist for were amply sustained in finding for the three years, and that, in four months' plaintiff. The first and second reasons, time, they do not die of tuberculosis, as therefore, have no merit. a rule, from the time of its inception."

He did not couple these offers with an offer to show the cow's condition when he took her to his farm, and, in fact, he did not attempt to offer any evidence on that subject. It seems to us that, even if the offers had been admitted, the jury ought not to have been permitted to find, on such meager testimony, that the cow was unsound at the time that Book drove her away from the Eshbach farm.

Where in an action on a promissory ncte the affidavit of defense alleges a parol promise by the payee that the note was not to be paid, that the money was a gift and that the note was given merely as evidence for the payment of interest if required, such alleged promise or agreement directly contradicts the terms of the note, and the affidavit is insufficient in the absence of an averment that such agreement was omitted from the note by fraud, accident or mistake, or that it was signed because of the agreement.

The essential elements of a gift inter vivos

are lacking where one gives the alleged donor a promissory note for the money received.

May Term, 1914, No. 37. C. P. of Lancaster County.

Rule for judgment for want of a sufficient affidavit of defense.

Chas. F. Hager and Chas. G. Baker, for plaintiff and rule.

Redmond Conyngham and John E. Malone, for defendant, contra.

The fourth reason is to the point that the check of $35.00 having been forwarded to the plaintiff before the bringing of the suit, it was to be considered as a payment for one of the cows (although the plaintiff refused to accept it, and so notified the defendant), simply because it was kept in the possession of the plaintiff and produced at the trial. In Philadelphia . Neill, 211 Pa., 353, Mr. Justice Brown, delivering the opinion of the Court, said: "Whether the notes and checks given by Neill to the appellees were taken by them as payment, in discharge of the surety on the bond, was a question of fact for the jury. They were instructed that, to make a note payment absolute, there must be an express agreement by the creditor to receive it as such, and that the burden of proving this is upon the debtor. This was correct: Philadelphia July 11, 1914. Opinion by HASSLER, J. 7. Stewart, 195 Pa., 309. The president The defendant obtained from the and bookkeeper of the company both plaintiff's decedent, Jefferies Miller, testified that the notes had not been three sums of money amounting to $11,accepted as payment, and Neill, the deb-000 between October 24, 1911, and Notor, upon whom was the burden of show-vember 24, 1911. At the time each sum ing that they had been so accepted, does was obtained he gave a promissory note not testify that they or the checks were to the said Miller for the amount. This so given and received." In the absence suit is upon the first of these notes, which of proof that the check was received by is as follows: "October 24, 1911. One the plaintiff as payment, it was sufficient year after date I promise to pay to the that it was presented upon the trial and order of Jeffries Miller $3.500, Thirtyshown never to have been used by the five Hundred Dollars lawful money, plaintiff. The check was not a legal with three and a half per cent interest. tender, and the defendant could not re- Signed, Charles F. Crawford." The delieve himself from liability for the price fendant has filed an affidavit of defense, of the cow, which he admitted was due and we are now asked to enter judgment to the plaintiff, by merely sending a for the plaintiff for want of a sufficient check in a letter for the amount. affidavit of defense.

I do not think that any serious error was committed upon the trial, and therefore this rule is discharged.

Rule discharged.

In his affidavit of defense the defen lant admits the execution of the note and the receipt of the money, but alleges "that the money represented by said ncte was a gift to him; that at the time

Farmers Trust Co, Admr. of Jefferies Miller, | bottle of gin had been the cause of all dec'd., v. Charles F. Crawford (No. 2).

May Term, 1914, No. 38.

the trouble, she said, and added that her husband was drunk most of the time. After listening patiently to a long tale

Rule for judgment for want of a suffi- of intemperance, Judge Marsh remarked cient affidavit of defense. to the defendant:

July 11, 1914. Opinion by HASSLER, J.

For the reasons given in our opinion filed this day in the case between these same parties to May Term, 1914, No. 37, we make absolute the rule for judg ment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff for the sum of $2.787.50, this being the amount of the note with one year's interest at three and a half per cent and one year and eight months' interest at six per cent.

Farmers Trust Co., Admr. of Jefferies Miller, dec'd, v. Charles F. Crawford (No 3). May Term, 1914. No. 39.

"If what your wife says is true. I should imagine you to be a rather bibulous person."

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"Bibulous!" snorted the old woman. Bibulous! but dat niggah doan know no mo' 'bout Ah beg yo' pahdon, suh, de Bible dan mah sistah's cat's tail-an' what's mo', ah ain't got no sistah!"— ippincott's.

Innuendo.

Congressman Eugene E. Reed, of New Hampshire, told of the reputation of a party named Abner.

Abner was haled to court to answer to a complaint that grew out of a broken bargain, and among the witnesses called to testify was Hiram Wilkins.

"Mr. Wilkins," said the examining

Rule for judgment for want of a suffi- lawyer, "you know the defendant in this cient affidavit of defense.

July 11, 1914. Opinion by HASSLER, J. For the reasons given in our opinion filed this day in the case between these same parties to May Term, 1914, No. 37, we make absolute the rule for judgment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff for the sum of $5.780.50, being the amount of the note and two years' and seven months' interest at six per

cent.

case, do you not?"

him nigh onter forty years now."
"Oh, yes," answered Hiram. "Knowed

"What is his reputation for veracity?" asked the lawyer. "Is he regarded as a man who never tells the truth?"

"Waal, I can't say that he don't never tell the truth," answered Hiram, “but I do know that if he wanted his hogs ter come ter dinner he'd have ter git somebody else ter call 'em."

-Philadelphia Telegraph.

Tegal Miscellany.

Conclusive.

Hard on the Court.

In a recent case of slander, a woman took the stand in behalf of the plaintiff, whose attorney was examining her.

"Now, madam," he began, “please repeat the slanderous statements made by the defendant, on this occasion."

She looked like a real old Southern mammy, and when she appeared before "Oh." exclaimed the woman, emphatJudge Marsh in the Stapleton police ically, "they are unfit for any respectable court over on Staten Island, as complain-person to hear!" ant in a charge of assault and battery Then," said the attorney, coaxingly, against her liege lord and master, her suppose you just whisper them to the speech did not belie her appearance. A

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judge."