Sixth That it does not show that the plaintiff presented any evidence.

After the presentation of the petition and during the pendency of a rule on the plaintiff to show cause why the transcript should not be stricken off, plaintiff presented a petition to amend the record, alleging that the last figure of the year 1895 which formed part of the statement of the time at which the summons was returnable, was wrong and that it should be 1894, the summons being issued on May 17, 1894, and made returnable on May 22nd, 1894, at 10 o'clock A. M., as shown by the alderman's docket and further that in the constable's return the words “On oath I" were omitted and praying that the correct transcript of the docket might be filed.

The defendant denies the right of the Court to allow an amendment.

The first question to be considered is: Can the transcript be amended? As to the right of the Court to amend the transcript of a justice there are a number of cases cited in P. & L. Dig. of Dec., Vol. 10, Col. 17667.

It will be noticed in this case that there is no effort made to amend the record of the justice but it is claimed that the transcript is not a correct copy of the justice's docket.

The record of the justice can only be amended whilst it is still within his own control.

Upon certiorari where there is, an allegation of diminution of record, the Court will require him to complete it.

Stambaugh vs. Baker, 10 Dis. Rep. 79.

Bushey vs. Lewrew, 1 J. L. R. 118.

In Klingler vs. Koons, 13 C. C. R. 641, it was held that the Court could not allow the justice to amend his transcript but if the correct transcript were not before the Court it could be thereafter certified and entered.

It would seem to me a hard rule, that would render void the judgment entered on a transcript of a justice of the peace

because of verbal inaccuracies occurring in the copying of the record as found on the docket. I will allow the amendment. I am of the opinion, however, that under the circumstances in this case, the original unamended transcript is sufficient to support the judgment.

In the consideration of this case it must be remembered that the judgment was entered in 1894; that a transcript was filed November 19, 1895; that since that time the judgment has remained upon the records of the court unattacked; and that were it now set aside, the plaintiff could bring no new action, being barred by the statute of limitations.

Authorities may be found on both sides of almost every question involving the sufficiency of a justice's record and the equities of the case therefore form an important part in leading to the decision of the matter.

The first objection that the record shows that the summons was made returnable a year after it was issued, is in my opinion without merit. An inspection of the transcript shows that the summons was issued May 17th, 1894, returnable the 22nd day of May, 1895, at 10 o'clock A. M., being over a year after the issuing of it and that the defendant was served on May 18th, 1894, and that judgment was entered May 22, 1894. This is sufficient to show that the "5" in the year" 1895 1895" was merely a clerical mistake. It would be hypercritical to declare a transcript void on such grounds.

The other objections to the record are not serious except the one which alleges that the record fails to show that no evidence was heard on the part of the plaintiff.

The case of the Inquirer Printing Co. vs. Wehrly, 157 Pa. 415, disposes of the question as to whether this exception is applicable to the entire matter now being considered. In that case there was a delay of fifteen years and the lower court upon the rule to strike off the judgment expressly founded its refusal to make the rule absolute upon the reason that although a

judgment might be fatally defective, the laches of the defendant prevented the Court from interfering.

Now, January 2, 1905, the rule to strike off the judgment is dismissed.

Now, January 2, 1905, the rule to amend the transcript is made absolute.

MUMBAUER vs. MUMBAUER.

Practice-Divorce-Desertion-Evidence.

Not every leaving is a desertion under the Act, but it must appear that the desertion was willful and malicious.

In the Court of Common Pleas of Lehigh County. Lizzie Mumbauer vs. Charles Mumbauer. No. 5, October Term, 1904. In Divorce. The Master's report recommended a decree a vinculo. The matter was referred back to the Master.

Lewis and Schantz for Libellant.

Trexler, P. J., January 2, 1905. In this case the Respondent was served and was present at the meeting.

The particulars of the desertion should therefore be fully set out. The Libellant testifies, and so do some of the witnesses, that the Respondent left her. The facts surrounding the desertion should appear in order that it may appear that the desertion was willful and malicious.

Whilst in cases where the Libellant is an incompetent witness we can not exact a full compliance in this particular, yet in this case we may.

Did he merely without cause get up and leave without any preliminary conversation with the Libellant; without any quarIf so, it should be stated in the report. Not every leaving is a desertion under the Act. It must be willful and malicious.

rel.

All the testimony in regard to his falling downstairs or being drunk is entirely irrelevant. Cruel and intolerable treatment is not laid as one of the grounds in the libel.

Now January 2nd, 1905, the matter is referred back to the master and examiner to examine the witnesses further as indicated in the above opinion.

WENNER vs. Gruele ET AL.

Practice-Tort Feasors.

Where defendants are improperly joined, not being joint tort feasors, it is too late to take advantage of the error after a trial upon the merits.

In the Court of Common Pleas of Lehigh County. Thomas P. Wenner vs. William Gruele et al. No. 61 September Term, 1899. Verdict for plaintiff. Motion for a new trial refused.

Dillinger & Schwartz for Plaintiff.

M. C. Henninger and Wright Bros. for Defendants.

Trexler, P. J., January 2, 1905. The evidence in this case was conflicting. The question narrowed itself down as to whether the plaintiff in the case had renewed a lease which contained a waiver of the exemption. One of the defendants claimed he had and the plaintiff he had not and the jury believed the plaintiff.

There was sufficient evidence in the case therefore to support the verdict.

Another matter has however arisen since the trial of the case and that is that the defendants were not joint tort feasors and that no verdict could be rendered against the defendants jointly. The point was not raised on the trial of the case and was presented to the court now for the first time upon the argument on the motion for a new trial.

This point would probably have been well taken if it had been urged at the trial of the case but it is a grave question whether the plaintiff should be compelled to again go through the uncertainty of a trial by a jury because a joint recovery could not have been sustained under the evidence had objection been made.

In Hart vs. Allegheny Light Co., 201 Pa. State 234, it is stated that the point should have been brought to the attention of the court at the trial. If it had been done the plaintiff could have amended or taken a non-suit as to certain parties and the trial could have proceeded.

See Oliver vs. Wheeler, 26 Pa. Sup., 5.

Now January 2nd, 1905, the motion for a new trial is overruled.

COMMONWEALTH vs. NICHOLS.

Ownership of Property Found on Convicts.

Where articles and money found upou a convict are in the custody of the warden of a prison, the Court will not direct that they shall be turned over to the prosecutor where there is no proof that the articles were purchased with the money stolen from the prosecutor nor that the money formed part of the sum taken from him.

In the Court of Quarter Sessions of Lehigh County. Com. vs. Thomas Nichols. No. 20 September Sessions, 1904. Petition to secure money and property.

James L. Schaadt for Defendant.

H. W. Schantz for Warden of Prison.

Trexler, P. J., January 2, 1905. The above defendant was convicted of the larceny of the sum of two hundred and eighty dollars from Raymond Packard and was sentenced to a term of imprisonment, fine and directed to make restitution.