Company to Mrs. Jacoby was a satisfaction, to the amount of its then market value, of the bequest of $3,000, made to her under the second codicil.

question the validity of my said will or by the presentation of claims against my estate, shall demand payment for any thing in excess of their respective equal one-seventh part of my residuary estate, We cannot but affirm this conclusion such child or children shall be deprived of the learned auditor, for under all the of any interest or participation in my es- evidence before us, it accords with the tate and the share or portion of my resid-law, as it seems to have been applied in uary estate so given, devised or be- cases of this nature. queathed to such child or children shall go to and be divided among his or her brothers and sisters in equal shares; provided that the said brothers or sisters shall not have disputed, controverted or The finding by the auditor that the becalled in question the validity of my will quest made to Mrs. Jacoby by the last or by the presentation of claims against codicil was adeemed, pro tanto, by the my estate have demanded payment of gift of the forty shares of the stock of anything in excess of their respective the Pennsylvania Railroad Company is equal one-seventh part of my residuary the substance of the 1st exception filed estate." by Mrs. Jacoby.

4. On the 21st day of June, 1916, the following paper was executed by the decedent:

"York, Pa., June 21, 1916. "I. Solomon A. Alexander, of York, Pennsylvania, do assert that my nurse, Mrs. Jennie K. Jacoby, has attended me faithfully for so many years, and should she continue to do so to the end of my life, she is to be rewarded in the sum of three thousand dollars ($3,000); any of my children who dispute this claim must

be disinherited."

This provision was probated with the will as a second codicil.

5. On October 16th, 1916, the testator gave to Jennie K. Jacoby forty shares of stock of the Pennsylvania Railroad Company, which at the time had a market value of $2.310.

6. Mrs. Jennie K. Jacoby continued to attend to the testator faithfully to the end of his life.

7. The auditor found as a fact that "this stock" (mentioned in our 5th finding of facts) "was given to Mrs. Jacoby by the decedent to reward her for attending to and taking care of him."

We incorporate this finding by the auditor, in our findings of fact, because we think it is founded on the evidence before him during the performance of his duties as auditor.

8. The auditor has found as a matter of law, that the gift of the forty shares

It is in accordance with these findings that the distribution of the balance on the executor's first and final account of the testator's estate was made by the auditor.

We do not deem it necessary to add to the discussion by the learned auditor, for it is clear to us that he has founded his conclusions of fact upon the evidence in the case, and his findings of law are so clearly illustrated by the authorities that we cannot but affirm them as logically correct.

The evidence of D. M. Myers and A. J. Hershey was clear and uncontradicted as to the thought and expressed intention of the testator, when he made his bequest for Mrs. Jacoby, that he made the gift for the same expressed purpose of recompensing her as was expressed in his will.

"An ademption of a legacy by an advancement subsequently to the will may be shown by parol, and, therefore, by testator's declarations": Beiter v. Zeiter, 4 Watts 212. "Where there is nothing on the face of the will, and no circumstances to indicate an intention to give a double portion, an advancement will be a satisfaction or ademption of a legacy": Benson's Estate, 209 Pa. 108; Lefever's Estate, 39 Pa. Sup. 189; Richardson v. Eveland, 1 L. R. A. 203, and notes on same page. The presumption that the advancement was intended as an ademption of the legacy is one that might have been rebutted by parol evidence: Minor v. Atherton's Executors, 35 Pa. 528; but the exceptants never offered or produced such evidence.

We do not know of any law in Pennof stock of the Pennsylvania Railroad sylvania, under the facts of this case,

which would excuse the auditor for not imposing the state tax as he did on the portion awarded to Mrs. Jacoby. The reasons given by the auditor, and his discussion of the evidence and law pertaining to that evidence, are sufficient to sustain his findings and awards.

And now, March 16th, 1923: The exceptions are dismissed, and the auditor's report is confirmed.

Super. C.

Dusman's Appeal

ception is taken. The appellant contends that the original order died with the 1st day of January, no report and no continuance having been made at that time. We cannot accede to this proposition, for the right of the court to allow a continuance during the term is well settled. This court in re-opening of Knox Street, 12 Pa. Superior Court 534, said, "The language of the act of 1836 is clear and explicit. A report of a road jury must, in each case, be filed at the term of the court which follows that in which of Pa. the appointment of the jury is made, unless during said term a continuance is ordered." See Sewickley Township Road, 26 Pa. Superior Court 572. In Springbrook Road, 64 Pa. 451, the re

Order to view public road-Contin-port was made during an additional week

uance during term of court.

An order to view and change a part of a public road does not die on the first day of the term to which it was made returnable, if then not returned or continued, but it may be continued on a subsequent day of the same term.

Appeal from the order of the Court of Quarter Sessions of York Co., Pa., confirming a report of viewers appointed to view and change a public road.

See the opinion and order of Wanner, P. J., from which the appeal was taken, in 36 York L. R., 21. Affirmed.

James G. Glessner, for appellant.

Harvey A. Gross and Ehrehart & Bange, for appellee.

of the term and was declared to be in time. In re Road in Salem Township, 103 Pa. 250, the court said, “If for any sufficient reason the report cannot be made to the next term, the proper course is to continue the order to view and to make it returnable to the next succeedthe order has expired, that is, before or ing term; but this must be done before during the session of court to which it is returnable." We find the proceedings were entirely regular. In view of the cases above cited, which are clearly decisive of the question, we think further discussion unnecessary.

The order of the lower court is sustained. Appellant to pay the costs.

Lehigh Co.

Schleicher v. Hunsicker

Trexler. J.. April 18th, 1923.-The c. P. of order of the court of quarter sessions to view and change part of a public road in Manheim Township, was issued November 29, 1920, and the viewers were directed to make report of their proceedPractice C. P.-Appeals from justice ings to the said court at the next term thereof. The next term began January Pleading Plaintiff's statement-De3rd, 1921. On the first day of the term the court allowed an amendment of the murrer-Damages claimed excessivepetition on which the viewers had been Verification of pleading-Attorney also appointed, changing one of the termini of the road therein set forth. The au- notary public-Acts of April 14, 1921, P. thority of the court to do this is not ques-L. 144. and May 14, 1915, P. L. 483. tioned. On the 10th day of January. during the same term, the court continued the order to view to April term, and it is to this act of the court that ex

The Act of April 14, 1921, P. L. 144, amend

ing the Practice Act of May 14, 1915, P. L. the peace, and thereby providing for a plain

483, so as to include appeals from justices of

tiff's statement and affidavit of defense on assistance to thwart it entirely by applysuch appeals, will be liberally construed.

Unless a party can affirmatively show that ing to these pleadings the strict rules of he is actually injured or prejudiced by the technical common law pleading.

pleading, or that the preparation of his case The reasons which support this confor trial is thereby made more difficult, the court will not encourage in limine examina- clusion would support a like determination of such pleadings, and the strict rules tion concerning motions to strike off

of technical common law pleading will not be applied.

A pleading will not be condemned merely because the pleader has claimed more damages than he will be allowed to prove at the

trial.

In the absence of a rule of court prohibiting an attorney from acting as his client's notary, the verification of pleadings by oath before the attorney notary is permissible.

Motion to strike off plaintiff's ment in appeal from justice. overruled.

William H. Schneller, for plaintiff.
Robert H. Norgang, for defendant.

and delay its proceeding without promoting the great end of all litigation. However, while we have thus indicated our views upon motions to strike off pleadings generally, the present determination applies only to the pleadings on appeals from justices of the peace.

pleadings in actions originally instituted here. The Practice Act of 1915 was designed to simplify, not complicate, the processes of pleadings; and the motion to strike off should be employed only when the form of the pleading under attack is so flagrant a violation of the provisions state-of the act that an adversary is actually Motion injured and prejudiced thereby. Unless that factor appears the questions raised by the motion are likely to be merely academic, and, to that extent, tempt litigants to indulge in a vain pursuit of the shadow instead of the substance of their claims. Reno, J., Apri 2, 1923.-The legisla-That court best serves the law which, tive mandate subjecting appeals to the while affording parties every facility for court of common pleas from judgments securing even and exact justice, also disof justices of the peace to the provisions courages anything that tends to obstruct of the Practice Act of 1915, is, at best, an unscientific extension of the principles of pleading to proceedings which immemorially have been conducted ore tenus. Therefore, we are not disposed to be astute or assiduous in discovering defects in the statements and affidavits of defense. Unless a party can affirmative- Judged in this light the motion before ly show that he is actually injured or us to strike off plaintiff's statement reprejudiced by the pleading or that the quires us to say only that, although it preparation of his case for trial is there seems to specify elements of damages by made more difficult, we will not en- some items of which being consequential courage in limine examination of such are not recoverable in this action, we are pleadings. This disposition does not not authorized to condemn the pleading arise from any desire to shirk the labors merely because the pleader has claimed incident thereto, but results from an am- more damages than he will be allowed to bition to save parties the expense and prove at the trial: Scranton Axle Co. v. delay involved by such procedure. Liti- Scranton Board of Trade, 271 Pa. 6. We gants are entitled to an easy, cheap and have no rule of court prohibiting an ateffective system of judicature whereby torney from acting as his client's notary controversies involving comparatively and in the absence of such role verificasmall amounts may be speedily adjudi- tion of pleadings by oath before the atcated. That system the people provided torney-notary is permissible. through constitutional provisions creating the justices' courts and, although the off plaintiff's statement of claim is overlegislature has now placed an onerous ruled. Defendant may file affidavit of obstacle in the way of the complete real- defense within fifteen days from service. ization of that aim, we shall not lend our hereof.

Now, April 2, 1923, motion to strike

INDEX

OF CASES REPORTED IN THIS VOLUME

ACCOUNT.

stated and accepted as would defeat the
complainant's demand for an accounting for

Account stated-Action on account the whole period.
stated-Defense-Consideration.

The same rules of equity apply to a bill
of discovery, or for an accounting between
An account stated is an agreement be-
tween parties who have had previous trans-employer and employee, as between part-
actions of a monetary character that all the
items of the account representing such
transactions, and the balance struck, are
correct, together with a promise, express or
implied, for the payment of such balance.

The settlement of an account and striking
of a balance is a clear admission of a new
principal; it cannot be re-examined to as-
certain the items or their character, except
upon proof of fraud or mistake.

In an action on an account stated, it is
not necessary to show a new consideration
for the agreement to pay the balance on the
account.

-LAMSON & HUBBARD COMPANY, TO USE,
ETC., V. EBERLY, 182

ACCOUNTING.

Equity-Accounting - Employer and
employee-Part of profits employee's
compensation.

The fact that a complainant in a bill for
an accounting may be about to become a
competitor of the respondent in a business of
the same kind as the latter is engaged in.
does not suspend or defeat any right under
the contract or the law which he may have
to an inspection of the books of the latter,
or to an accounting of the costs of manufac-
ture and the profits of the business.

An account prepared by certified public
accountants selected by the respondent, and

covering only a part of the period during
which the complainant alleges the parties

ne:s, where the commissions of the employee
are to be a certain part of the profits of the
employer's business.

The right to an accounting is a preliminary
question which may be determined on the
face of the bill and answer, before proceeding
to ascertain what amount may be due the
plaintiff.

Where a prima facie right to an accounting
exists, the defense that nothing will be due,
or that not more than a certain sum will be

found to be due the plaintiff, or that from
time to time certain settlements of accounts
were made between the parties, will not be
legally sufficient to prevent an accounting.
-McGANN V. RUGGLES-COLES CO., 125

Practice Assumpsit-Accounting-
Partnership-Settlement of partnership
accounts in assumpsit.

--FEARON V. MEADS, 69

ACTION.

Account stated — Action on account
stated-Defense―Consideration.

-LAMSON & HUBBARD COMPANY, TO USE,
ETC., V. EBERLY, 182

ADDRESS.

Gift-Replevin-Charge of court on
degree of proof Question for jury
New trial-Address of counsel to jury.

did business together, is not such an account -JOHNSON, EXECUTRIX V. BRATTON, 73

-

Where defendant files an affidavit of de- Practice, C. P.- Partnership — Suit
fense and sets forth paragraph after para-against-Failure to set forth names of
graph that he "neither affirms nor denies the partners—Amendments.

allegations contained in paragraph.

of plaintiff's statement," and does not an-
swer specifically the facts of the plaintiff's

-BRIGHTMAN MFG. CO. V. TAYLOR & CO., 100

Husband and wife-Divorce-Libel—

claim, judgment for want of a sufficient af- Affidavit-Amendment.

davit of defense will be entered without per-
mitting a supplemental affidavit to be filed.
-EASTON NATIONAL BANK V. BAROWSKY, 128

Arbitration-Validity-Regularity of

-CASE V. CASE, 156

APPEAL.

proceeding-Assumpsit - Principal and Appeal-Failure to file appeal-Mis-
surety-Affidavit of defense-Province take of Justice of the Peace.
of the court.

Where a party to a suit has done all that

-BOARD OF PUBLIC EDUCATION V. THE the law requires in connection with perfect-

AMERICAN SURETY CO., 36

Pleading and practice — Affidavit of
defense in trespass Counter claim in
trespass.

-KEEFER V. SPAHR, 61

-

ing an appeal except filing the transcript,

and relied on the magistrate's statement that
it was part of his official duty to file the
transcript, an appeal nunc pro tunc will be
allowed.

-RICE V. STOKER, 46

Appeals Attorney and client--Agree-

Fictitious name- -Sales-Act 1915-
Defective goods-Affidavit of defense-
Single sale in this state from outside firm.ment with the court-Compromise ver-

-FILLMORE DRESS CO. V. STEINER & PRES-

SEL, 63

dict-Powers of counsel-Exceptions.

-MERCER V. NAFFAH, 126