Third.—The judgment of Mary Claus, entered at No. 304 July Term, 1898, D. S. B., being a prior lien to the judgment of The Fidelity Title and Trust Company at No. 238 December Term, 1898, upon the property of Charles Claus, and the amount actually due thereon in accordance with that finding being in excess of the amount realized from the sale of the real estate of said Claus, the sheriff properly appropriated the money so realized, after deducting costs and taxes and an amount due on a prior lien to account of the judgment of said Mary Claus. In accordance with the foregoing findings it is ordered that the bill be dismissed at the costs of plaintiff. For plaintiff, Chantler, McGill & Cunningham. are still outstanding; that the foregoing were acts of bankruptcy, wherefore the State statute of June 13, 1836, became inoperative in the case and the federal court obtained exclusive jurisdiction. The plaintiff thereupon petitioned for permission to intervene and traverse the auswer of the claimant, so that an issue might be framed in accordance with the interpleader act. A rule having been granted on the claimant, to show cause why the prayer of the petitioner should not be allowed, the latter filed an answer setting up in substance the same matters which were embraced in the former answer and denying the right of the plaintiff to intervene. We will primarily consider the second of the above recited reasons relied upon by the claim For defendant, Levi Bird Duff and L. B. D. ant. It is true that the doctrine may be deemed Reese. No. 587 May T., 1899. Domestic attachment proceedings. Petition of sheriff for interpleader and rule thereon. Petition of plaintiff for leave to intervene and rule thereon. For rules, Wetzel & Hambleton. Opinion by BIDDLE, P. J. Filed June 7, 1899. settled that a national bankrupt law suspends the operation of all State laws concerning insolvency which come within its scope: 2 Am. & Eng. Ency. of Law, p. 87; Black on Bankruptcy, p. 271. It is likewise true that the provisions of the thirty-ninth section of the bankrupt law of March 2, 1867, superseded and rendered inoperative the domestic attachment Act of June 13, 1836, Tobin v. Trump, 7 Phila. 123; yet the bankrupt law of 1898 does not contain any enactment concerning absconding or concealed debtors, and therefore does not come in conflict, in any way with the State law relating to domestic attachment. The fact that the answer of J. L. Williams, the claimant, alleges that the defendant committed certain acts of bankruptcy not involved in the present suit, is immaterial to this controversy and affords no ground for discharging the rule. The important inquiry therefore is, whether the plaintiff should be given leave to intervene and traverse the claimant's answer, so that an issue may be framed. The domestic attachment act provides that on the return of the writ by the sheriff, the court shall appoint three honest and discreet men to be trustees of the defendant's estate, in whom his entire assets shall be vested, and who shall have power to sue for and recover the same. The sheriff has nothing to do with the conversion of the assets or the distribution of the proceeds of sale, but his functions in the matter are fully To said rule the claimant filed an answer terminated upon the delivery to duly constialleging as follows: (1) That there is no war- tuted trustees of such attached personal proprant in law for interpleader proceedings in a erty as he may have in his possession. The domestic attachment case. (2) That in April, plaintiff in the action does not become entitled preceding the attachment, two judgments were to any preference because of his writ, but he entered and two executions issued against the may only obtain a pro rata dividend from the defendant upon which levies were made on all fund on the same basis as other creditors. The of his personal property, and these executions | statute gives to the trustees very broad powers, among these being the right to summon before them any resident of the county and to examine him, on oath, concerning the defendant's estate, and to discover and dispose of all property which was fraudulently transferred by defendant, etc. After careful reflection upon the questions involved, we are of opinion that the trustees are the proper persons to unravel disputes as to title, and that the sheriff's interpleader Act of May 26, 1897, has no application in domestic attachment suits. The recent case of Book v. Sharpe, 189 Pa. 44, does not conflict with this conclusion. And now, June 7, 1899, the rule of May 10, 1899, which was granted in pursuance of the sheriff's petition for an interpleader, also the rule on claimant of May 27, 1899, to show cause why plaintiff should not be permitted to intervene and traverse the answer, are both discharged. Court of Common Pleas, MERCER COUNTY. SNYDER v. MOYER. In an action for damages before a justice the plaintiff claimed that defendant obstructed a ditch on the highway and constructed a ditch on defendant's land and thus leading the water from the highway to plaintiff's land; a rain the next day caused the damage to plain tiff's land. Held, on appeal, that plaintiff's remedy was an action on the case and the justice had no jurisdiction. script of the justice is: "Plaintiff claims in trespass and damage for turning a natural watercourse and damaging her lands thereby to the amount of $25." The evidence of plaintiff was to the effect that the defendant had obstructed a ditch on the highway; dug a ditch or drain on his own land, leading from the highway ditch down the lane of defendant, thereby carrying the water collected in the highway ditch down the said lane into a natural water-course, and thence by said natural water-course onto plaintiff's land; that the highway ditch was obstucted on Saturday, and the ditch leading down defendant's lane to the natural water-course was dug the same day; that at that time, and until the following Sabbath night, there was no water in the highway, or lane ditches; that on Sabbath night there was an exceedingly heavy rain, and that the water collected by the highway ditch poured down the lane ditch into the natural channel, and thence onto plaintiff's land, washing the surface, washing the soil off the field, and washing the earth off a stone under-ground drain, thereby damaging plaintiff's land to the amount of $25. The plaintiff also offered evidence to show that the act of the defendant was not only unlawful but willful. The defendant denied that he obstructed the highway ditch, or dug a ditch down his lane, and offered testimony to show that the rainstorm was extraordinary and unusually severe; that owing to the contour of the surface of this farm, and the lands adjacent thereto, the natural water No. 37 June T., 1898. Motion for judgment for defendant non obstante veredicto on a ques-channel drained the surface water from a large tion of law reserved by the court. This was an appeal by defendant from the judgment of a justice of the peace. Upon the trial of the case in court the defendant presented the following point to the court: "That the plaintiff is not entitled to recover in this case, for the reason that her cause of action is one of which a justice of the peace has no jurisdiction," and the question of law thus raised was reserved by the court. After a verdict in favor of plaintiff for $25, the motion above referred to was made by defendant. For plaintiff, W. H. Cochran. acreage, and it was this condition of affairs that caused the unusual amount of water to flow from his lands onto plaintiff's and cause the injury complained of. In our view of the evidence the jury should have found a verdict for defendant; but the verdict being for plaintif, we must treat the case as though plaintiff's contention were true. In Troubat & Haly's Practice, sec. 1553, it is held that an "action on the case always lies for injuries to real property where the injury is consequential, which must always be the case when the act complained of is done upon the For defendant, S. R. Mason and James D. defendant's own land, and the effect of it exEmery. Opinion by MILLER, P. J. Filed June 5, 1899. The question whether the justice had jurisdietion of this case was raised by the defendant in a point addressed to the court at the close of the trial, and was reserved. tends to the land of the plaintiff. . . .” "Whether the act were lawful or unlawful, or were done willfully or not, does not enter into the consideration of the subject, nor affect the form of action." In Stewart v. Shaffer, 6 Pa. D. R. 226, Judge BELL held that the proper remedy for causing The cause of action as set forth in the tran- water to run from defendant's land upon plain tiff's land would be an action on the case; and in Youngblood v. Falkner, 2 Kulp, 429, it is held that a justice has no jurisdiction in an action for negligence in not preventing surface water from flowing from defendant's land onto plaintiff's land. In Keller v. Stoltz, 71 Pa. 356, defendant had originally erected a dam on his own land. Plaintiff alleged that in rebuilding the same defendant had erected it on plaintiff's land and thereby raised the water on his (plaintiff's) land above its usual height so as to cause back water on plaintiff's land, overflowed and destroyed a fording, etc. Judge SHARSWOOD, in the opinion of the Supreme Court, on page 358, says: "In this action on the case the only question was whether it (the dam) had been instrumental in producing the consequential damage complained of in the declaration. If it had it mattered not whether the act was rightful or wrongful in itself. If it had been erected on the defendant's own land, yet if it had so obstructed the water of the creek as to cause plaintiff's to be overflowed beyond that which had been the case before, it would have been ground| to recover damages in an action on the case." In Chitty on Pleading, Vol. 1, page 139, it is said that "for causing water to run from defendant's land to that of the plaintiff, the proper remedy is an action on the case." It seems plain, therefore, that plaintiff's remedy was neither common law assumpsit nor trespass vi et armis: Canan v. McCamy, 1 Penny. 397; Coteral v. Cummins et al., 6 S. & R. 343; Zell v. Arnold, 2 P. & W. 292; Meyer v. Horst, 106 Pa. 552. It follows that plaintiff's remedy was an action on the case for damages resulting from defendant's alleged wrong; that the justice had no jurisdiction of the cause of action (Congaham v. Rudolph, 4 Kulp, 504); and therefore this court had none on appeal. And now, June 5, 1899, it is considered that upon the question reserved, judgment be en tered for the defendant non obstante verdicto; and the prothonotary is directed to enter judgment for the defendant and against the plaintiff, Mary Snyder, for costs, on the payment of the jury fee. -That a bank is not liable for negligence of a notary employed by it is shown in First National Bank v. German Bank (Iowa), 44 L. R. A. 133, where a bank is held not to be liable for the negligence of its assistant cashier, who was a notary public, in failing to give proper notice of the dishonor of an inland draft which the bank held for collection. VANCE'S CASE. In 1898 commissions were issued to A. and B. as justices of the peace for the borough of Oakdale to serve for five years. In 1899 an election was held to fill an alleged vacancy in B.'s office and C. was certified by the prothonotary to the Secretary of the Commonwealth as elected. It appearing from the records of the secretary's office that no vacancy existed the secretary was advised not to issue commission to C., but that the dispute should be settled by the courts. Request of the Secretary of the Commonwealth for opinion. Opinion by FLEITZ, Deputy Attorney General. Filed May 11, 1899. Your letter of the 6th inst., asking whether or not, under the statement of facts which you present, a commission as justice of the peace for Oakdale borough, Allegeheny county, should issue to Charles J. Vance, who has been certified by the prothonotary of that county as elected and accepting as a justice of the peace for said borough, has been carefully considered. It appears from your communication and an inspection of the records in your office that on April 16, 1898, commissions were issued to G. W. Land and J. C. McEwen, to serve as justices of the peace of Oakdale borough for the period of five years, computing from the first Monday of May following. There is nothing to show that either of these officers have died, resigned, removed or in any other way vacated the offices for which they were commissioned; neither is there anything of record showing that either of them was removed as provided by law; and therefore, as there is no claim that the borough is entitled to more than two justices of the peace, it seems to me clear that no commission can be issued to Mr. Vance. Mr. Vance is asking for a commission on an election held to fill an alleged vacancy in the office now occupied by Mr. McEwen; but there is no evidence before us to sustain the contention that any such vacancy has occurred. On the other hand, you have Mr. McEwen's denial of any such vacancy existing and his protest against the issuing of a commission to Mr. Vance. It is perfectly well settled, in cases of this kind, that the burden of proof rests upon the party who alleges the existence of a vacancy. However this may be, I beg to remind you that your department is not a judicial tribunal, and that disputes of this kind should be settled in the proper forum-the courts of this Commonwealth. I therefore advise you that, under all the circumstances surrounding this case, you would not be justified, in my opinlon, in issuing the commission to Mr. Vance. Court of Common Pleas No. 2, ALLEGHENY COUNTY. In re Application of the C, COLUMBUS ITALIANAMERICAN CITIZENS ASSOCIATION OF PITTSBURGH for a Charter of Incorporation. Incorporation of charters of the first class—Under what circumstances charter should be refused. No. 264 July T., 1899. Opinion by FRAZER, J. Filed July 15, 1899. The purposes of this proposed corporation, as set forth in the articles of association, are as follows: "Said corporation is formed for the purpose of educational improvement and the acquiring of a thorough and practical knowledge of the foundation and necessities of American citizenship, the teaching and disseminating among the members thereof of the rights and duties of American citizenship, and to provide legitimate social enjoyments for the members thereof." After a careful perusal of the articles of association I am unable to approve the application for the following reasons: First.-Because the articles of association are signed by only four persons, instead of five, as the law requires. Second.-Because the character of the social enjoyment proposed to be furnished to the members is not set forth with such particularity as to enable me to certify that it is "lawful and not injurious to the public." Third.-Corporate franchises are not necessary to enable the applicants to carry out the purposes named in their articles of association. These purposes can be carried out as well without as with a charter. Fourth.-Because the application is typewritten on several single sheets of paper, joined together with eyelets, instead of being written on one single sheet. For these reasons, which have heretofore been more fully set forth by this court in applications of McKees Rocks Firemen's Ass'n, 45 PITTSB. LEGAL JOURNAL, 38, Monroe Republican Club, Id. 52, and the Accountant's Association, 44 Id. 103, this application for a charter is refused. For petitioner, Joseph M. Friedman. LEW et al. v. NOLAN et al. The submission of an action of ejectment by an attorney for one of the parties to arbitrators who are to decide the case without exception or appeal, is not binding on his client who has no knowledge of the submission and has not given his consent thereto. No. 435 July T., 1896. Rule to show cause why a judgment rendered against the defendant before arbitrators in an action of ejectment should not be opened and the defendant let into a defense. Rule absolute. For plaintiffs, Brown & Rankin and D. R. Jones. For defendants, T. B. Alcorn and Thos. M. & Rody P. Marshall. FRAZER, J. Filed July 22, 1999. This is an action of ejectment to recover possession of a lot of ground situate in the Twentysixth ward, Pittsburgh. After being instituted it was duly proceeded with and reached for trial on the 3rd of June, 1898. At that time it was agreed in writing between counsel for the parties that the case should be referred to arbitrators, whose decision should be final and conclu. sive. In accordance with that agreement the following order was made: "And now, June 15, 1898, in pursuance of the above agreement the court appoints Joseph Forsythe, S. C. McCandless and N. S. Williams as arbitrators in the above case, whose award shall be final and conclusive without exception or appeal. Per Curiam." The arbitrators subsequently met, notice of the meeting having been given to counsel for the parties. The plaintiffs and their counsel were present at the hearing before the arbitrators; the defendants' counsel was present but the defendants were not. After several meetings and after hearing the plaintiffs, the arbitrators awarded in plaintiffs' favor; judgment was entered thereon, and the plaintiffs put into possession of the property by the sheriff on the 3rd day of April, 1899, on a writ of hab. fa. On the 18th day of April, on defendants' petition, a rule was granted on plaintiffs to show cause why the judgment should not be opened and set aside and restitntion awarded, the defendants alleging (1) that their counsel had no authority to submit the case to arbitrators, and (2) that they had no notice of the submission or of the time and place of the hearings had before the arbitrators. From an examination of the authorities submitted by counsel we are not entirely satisfied that an attorney at law has power to agree for his client without express authority to the submission of a pending action of ejectment to arbitrators without exception or appeal, where the title to the property is the question involved. If the question was one of boundary, and nothing more, such submission would bind the client: Sargeant v. Clark, 108 Pa. 588. In this case, however, the question in dispute is the title to the entire lot of ground, and we have not been referred to any case which holds that an attorney may agree to a submission where title is the question involved. If a client should receive notice of the submission of his case involving his title, and not repudiate the act of his attorney, but attend the meetings of the arbitrators, he would not be permitted after an award to set up the want of his attorney's authority to submit the case. But the allegation is that this was not done in this case; the defendants say they did not give their attorney authority to submit the case, and that they reIceived no notice of either the submission or of the meetings of the arbitrators. A clerk in the employ of defendants' attorney says a notice to call at the attorney's office was mailed to the defendant upon whose petition this rule was granted. At the trial the question of notice may be important and possibly be a question for the jury. As to whether or not the fact that the case was on the trial list, at the time the agreement to submit was signed by counsel, is a question also that may have some bearing on the case here after. Court of Common Pleas No. 3, ALLEGHENY COUNTY. STAMETS et al. v. DENISTON. A. entered into an agreement with B., whereby B. was Held, that A. could revoke the authority of B. to sell the EVANS, J. Filed June 26, 1899. The plaintiffs, George T. E. Stamets and John J. Ebdy, allege in their bill of complaint filed in this case that the defendant, Laura L. Deniston, entered into a contract in writing with them on the 5th day of October, 1898, giving to the plaintiffs the sole and exclusive right to sell certain property of the defendant situate in the township of Braddock, now the borough of Swissvale, in the county of Allegheny and State of Pennsylvania; that on or about the 27th of February, 1899, the defendant refused to carry out on her part the terms of the said agreement, and on the 2nd of March, 1899, through her attorney, formally repudiated the agreement, and And now, July 22, 1899, the rule is made ab- they pray in general terms for a decree for the solute so far as it applies to opening the judg-specific performance on the part of the defendment entered in this case on the award of arbi-ant on that agreement. trators, and dircharged so far as the same asks for restitution of the premises. Under all the circumstances we think the judgment should be opened and the case put down for trial; we however decline at this time to order restitution of the premises; that can be done hereafter should it become necessary to do so. ORDER OF COURT AS TO APPOINTMENT OF COMMISSIONERS IN DIVORCE. No. 590 July T., 1899. PER CURIAM. Filed June 17, 1899. Hereafter, until the further order of court, commissioners to take testimony in divorce cases will not be appointed and the testimony will be heard in court. The clerk of court will have a separate book in which will be entered the cases when ready for testimony, on a præcipe from libellant's or respondent's attorney. This list will be taken up for trial and heard by one of the judges, during the week for hearing cases on the general argument list. The defendant alleges in answer to the bill of complaint of the plaintiffs that by a contemposell and dispose of the property described in raneous oral agreement the plaintiffs agreed to the written agreement, within a period of three months, and that they failed to comply with said part of the agreement, and further, that they failed to use due dillgence in the sale of the property described. FINDINGS OF FACT. That on and prior to October 5, 1998, the defendant, Laura L. Deniston, was the owner of a certain tract of land situate in the township of Braddock, county of Allegheny and State of Pennsylvania, fully described in the bill in this case; that on that date she entered into an agreement with the plaintiffs in writing, |