It has been held by a number of the county courts of this state that the Act of March 20, 1810, Section 2, must be followed and that the summons must be directed to the constable of the district where the defendant usually resides or can be found or to the next constable most convenient to the defendant. Butz vs. Phoenix Iron Co., 11 Dist. Rep. 680.

Earle, Receiver National Bank, vs. Howarth, 8 Dist. Rep. 610.

Fire Insurance Co. vs. Keller, 9 Dist. Rep. 61.

In the case before us the summons shows a designation of the constable who was to serve it. The magistrate exercised his discretion as to who was the next constable most convenient to the defendant.

We have nothing before us to show why the particular constable who made the service was selected. There may have been reasons, such as interest or disability, which prevented the selection of a constable nearer the residence of the defendant. I adopt the opinion of Dunham, President Judge in Kans vs. School District Cherry Township, 26 C. C. R., P. 276.

The fifth exception is, that the entry of the judgment by the Alderman is vague and uncertain in not designating the amount for which judgment was intended.

The judgment was entered for $79.12 with interest from October 3, 1903. How it can be more definite, I fail to see. Whilst it is the practice to give the judgment for the amount claimed with interest up to the day upon which the judgment was rendered, the fact that the date for computation of interest is fixed as of a date prior to the judgment, in my opinion, does not invalidate the judgment. If at any time execution were issued upon this judgment, the constable executing the writ would be required to reckon interest on it in any event; in one case from the date mentioned in the judgment and in the other case, if no date were mentioned, from the date when the judgment was rendered.

The sixth and last exception is: The record of the Alderman does not disclose the date when judgment was entered.

The record states that on January 21, 1904, at seven o'clock P. M., the plaintiff appeared, and then goes on to state that the witnesses were sworn, what plaintiff's claim was, and ends by saying: "After a full hearing and upon due proof, judgment is publicly rendered by default in favor of plaintiff and against defendant for $79.12 with interest from October 3, 1903, and costs of suit."

Anyone reading this record would readily see that the date January 21, 1904, covers the transaction noted upon the record including said entry. It is a statement of the one transaction comprising the hearing which ended in the judgment rendered.

Now, May 19, 1904, after due and careful consideration of this case, the proceedings before the justice are affirmed.

SICHER VS. DAUGHTERS OF AMERICA.

Practice-Appeal from Justice of the Peace-Act of July 14, 1897, P.

L. 271,

A motion to file the affidavit required by the Act of July 14, 1897, P. L. 271, nunc pro tunc, will not be allowed merely because the Defendant alleges that the Alderman neglected to have the Defendant make it.

Frank

In the Court of Common Pleas of Lehigh County. Sicher vs. Allen Conclave, No. 7, Daughters of America. No. I20. April Term, 1903. Rule upon Defendant to show cause why appeal should not be stricken off and dismissed. Also petition by Defendant praying for an allowance to file affidavit nunc pro tunc. Appeal stricken off and petition refused.

Allen H. Focht for Plaintiff.

E. J. Lichtenwalner for Defendant.

Trexler, P. J., May 29, 1903. In the above case appeal was entered from the judgment of the justice of the peace on behalf of the Defendant, bail was entered and costs were paid, but the Defendant failed to make the affidavit required by the Act of Assembly, P. L. 1897, P. 271.

The Court upon motion of the Plaintiff entered a rule upon the Defendant to show cause why the appeal should not be stricken off and dismissed. No answer has been filed to said rule but the Defendant after the return of the rule filed a petition alleging That judgment had been recovered against it; that the Defendant took an appeal, entered bail and paid the costs, but that the alderman neglected to have the Defendant make the proper affidavit as is required by law upon an appeal, and asking that the Defendant be allowed to make said affidavit and to file the same of record.

My learned predecessor in a similar case, Ginder vs. Steinmetz, No. 61, June Term, 1898, struck off the appeal because the Defendant had not made the affidavit prior to or at the time of entering the appeal. Whilst I think that considerable latitude should be allowed in such cases I do not think that the petition of the Defendant is sufficient to move the Court to permit it in this case.

case.

Where a person wishes to invoke the aid of a Court in order that he may obtain relief from the operation of the strict construction of an Act of Assembly he should give the Court full informatlon as to the circumstances which surround the There is a bare allegation that the alderman neglected to have the Defendant make the proper affidavit. No depositions have been taken in support of the petition. It appears from the papers in the case that counsel for the Defendant filed a transcript. He was qualified to make the affidavit at the time the transcript was filed. I merely refer to this to show how meager the facts before the Court.

Now, May 29th, 1903, rule absolute, appeal is dismissed

and the petition of the Defendant for allowance to file the affidavit nunc pro tune is dismissed.

(See next case).

GINDER US. STEINMETZ.

Practice-Appeal from Justice of the Peace-Act of July 14, 1897, P.

L. 271.

The affidavit required by the Act of July 14, 1897, P. L. 271, must precede the filing of the transcript.

It is not the duty of the Justice of the Peace to require the affi lavit specified by the Act of July 14, 1897, F. L. 271.

In the Court of Common Pleas of Lehigh County. James F. Ginder vs. Milton H. Steinmetz. No. 61 June Term, 1898. Petition to file affidavit nunc pro tunc in order to perfect appeal. Rule to strike off and dismiss appeal. Rule to strike off appeal made absolute.

Erdman and Diefenderfer for Plaintif

Wm. H. Sowden for Defendant.

Albright, P. J., December 23, 1898: The Act of 1897, P. L. 271, declares that no appeal from the judgment of a justice or alderman shall be entertained (that is recognized by the Common Pleas) unless the appellant or his agent or attorney shall make affidavit that the appeal is not for delay, etc.

The affidavit must precede the filing.

This appeal was filed on June 6, 1898. That was the First day of June Term and the last day for filing.

On May 3, 1898, bail was entered. Presumably the Defendant then indicated that he appealed, but it is not stated that he did appeal.

In his petition defendant states that when he went to the justice to make the required affidavit there was but one day remaining to file his appeal and the Justice was not at home.

The inference is that this was on Saturday, June 4, 1898. Therefore the Defendant had a month's time to make the affidavit.

Said Act means that the appellant shall make the affidavit. It does not contemplate that the Justice shall demand the affidavit. It is not made his duty to see that it is made. So the default was that of the Defendant and not of the Justice. No cause has been shown why said Act shall be disregarded. Further, the Defendant has not averred that he does not owe the debt.

Defendant now presents an affidavit as required by said Act made before the Prothonotary on December 17, 1898. He could have made that on June 6th and presented it with his appeal. He had the whole of the latter day to file his appeal.

December 23, 1898, the rule to strike off the appeal is made

absolute.

(See preceding case).

THE READING CO. vs. SEIP.

Ejectment-Variance in Description Between Plaintiff's Abstract of Title and Declaration—Adverse Possession-Non-user by Railroad Company.

In ejectment, all that the abstract of title ts required to sbow is the chain of title. It need not set out the description of the property sought to be recovered. That appears in the declaration.

There can be no adverse possession of lands owned by a railroad company and this is the rule both as to lands acquired by purchase and those obtained under condemnation proceedings.

The non-user of any portion of a railroad company's land can not be considered as an abandonment of its corporate rights over and to such land.

In the Court of Common Pleas of Lehigh County. The Reading Company vs. Mrs. Elizabeth Seip. No. 62 April Term, 1902. In ejectment. Verdict for Plaintiff by direction of Court. Rule for new trial. New trial refused.