proceedings." It seems to us that his contention is not unreasonable. When the city repealed the ordinance under which the benefits were assessed against petitioner's lot and the judgment entered thereon, he had a right to have his property at once relieved from the encumbrance without cost or expense to himself. In fact it thereupon became the duty of the city's proper officers to have this done. In our opinion the clause of the act above quoted is broad enough to justify a reasonable allowance for counsel fees, in requiring the city to do what it ought to have done immediately upon repeal of the ordinance of 1894. It is not sufficient excuse to say that no demand was made by petitioner for the removal of the lien; it was the city's place to relieve the property from the encumbrance without being requested to do so. And now, September 13, 1899, the rnle to strike off the lien in this case is made absolute, and it is further ordered that all costs, including an attorney's fee of ten dollars for petitioner's attorney, be paid by the plaintiff. ordinary five day rule to take depositions having been issued to defendant by the prothonotary, George M. Metz, Esq., the commissioner named in said rule, subpoenaed Samuel H. Sides, one of the defendants, to appear in Altoona and to "bring with" them "all and singular the books of original entry, day books, blotters, ledgers and cash books of the said Trimble, Sides & Co., showing any and all of the accounts, dealings and transactions whatsoever of the said Trimble, Sides & Co., with W. E. Mulhollen during the years 1896, 1897, 1898." Mr. Sides appeared before the commissioner in Altoona; Mr. Miller did not; the books were not produced, but Mr. Sides brought with him an itemized copy of the account with defendant. In their answer to the present rule to attach for contempt, defendants doubt the power of the commissioner to issue such duces tecum to produce books, and further aver the virtual impossibility of the production at that time and place of all the books called for, owing to the large number of books covering said For Allegheny City, Elliott Rodgers, city period, said books making almost a dray load solicitor. For defendant, T. P. Trimble. Court of Common Pleas, BLAIR COUNTY. TRIMBLE, SIDES & CO v. MULHOLLEN. Witness subpœnaed by commissioner to take testimony -Right to issue subpœna duces tecum. When a witness of the opposite party is subpoenaed to be examined as for cross-examination, he will not be attached for his refusal to come unless he has first been tendered his costs. A commissioner appointed to take testimony has no right to issue a subpoena duces tecum to one of the parties upon the petition of the other that "the produc tion and examination of such books of account are material and necessary." Such subpoena should only issue after an application to the court, founded on affidavit setting forth the necessity for such production and due notice to the adverse .party. No. 28 Jan. T., 1899. Rule at instance of defendant to attach Samuel H. Sides and George Miller, for contempt in not producing books before a commissioner to take depositions. For rule, J. S. Leisenring and A. G. Pascoe. Contra, E. H. Faulkender and W. I. Woodcock. in bulk, and their absence utterly demoralizing the business of Trimble, Sides & Co. in the meantime. Moreover, they allege the defendant is insolvent. As to the last objection it may be sufficient to state that as Miller, Trimble, Sides & Co. are a Philadelphia firm, a member of it will have to come to Blair county if subpœnaed in reason| able time and tendered his legal costs: Commonwealth Trust Company v. Slacks, 18 Pa. C. C. R. 593. I am likewise of the opinion that Mr. Sides should be tendered his legal costs in order to compel his appearance. True, it is ruled in Leonards v. Smith, 4 Pa. Dist. 249, and Rhodes v. The Bank, 5 W. N. C. 191, that a party is not ordinarily entitled to costs as a witness, but I am inclined to think that a different rule prevails when the opposite party subpœnas his adversary to examine him as if on cross-examination. At all events I would not feel like attaching Mr. Sides under the present circumstances if he is not tendered his costs. But the main question for consideration is the right of a commissioner, named to take depositions, summarily to issue a subpoena duces tecum commanding the opposite party to produce all their books. In Thomas v. Smith, cited in note to sec. 610, Troubat & Haley's Practice, the right to compel any such production of Opinion by BELL, P. J. Filed July 3, 1899. books before a "magistrate who takes the depoDefendant, alleging payment, obtained a rule sition" is denied. It will be observed, howto open judgment, No. 300 October Term, 1898. ever, in that case that the deposition was for on which the above fi. fa. was founded. Anjury trial purposes; in the present instance the commissioner acts as the representative of the court; under our rule of court, No. 26, no oral testimony can be heard in this matter. Hence it would seem that the present case is distinguishable from Thomas v. Smith, supra. But the question still recurs, can such a commissioner, even assume that he is the representative of the court, summarily issue such subpoena duces tecum, without preliminary rule and hearing? I think not. It would seem that a subpoena duces tecum is not the proper means of obtaining documentary evidence, in the possession of the opposite party, or at least that it does not issue as of course, or why the necessity for the Act of February 27, 1798, Purd. Dig., page 813? If one party could compel his adversary to produce evidence merely by the issue of a subpoena, where was the necessity for the passage of said act, which does provide a method, "on good and sufficient cause shown by affidavit" "and due notice" and hearing for compelling parties to produce books and papers? Or, if subpoena duces tecum was the common-law remedy, is not said Act of February 27, 1798, a substitute therefor? And if a court will only compel the production of the books and papers of an adverse party after "good and sufficient cause shown by affidavit," "and due notice" and hearing much There are few merchants who would be willing, with such a power hanging over them, to have all their letter books taken to the office of a justice of the peace and there overhauled, studied and copied by their adversary or his lawyer." The subpoena duces tecum in the present case was issued without affidavit, notice or hearing. The petition to attach merely states that "the production and examination of such books of account are material and necessary without specifying how they are material, or why necessary. Permission is hereby given defendant, if he sees fit, to apply to me in vacation, supporting such application by proper affidavit containing specifications and particulars, for an order to compel the production of the books in question before Commissioner Metz. This is done to obviate delay so that the main rule to open the judgment can be heard at next argument court. The present rule is discharged. Orphans' Court, BLAIR COUNTY. IKE'S ESTATE. claims. The granting of an issue by the Orphans' Court to try the validity of disputed claims, which the purchaser of real estate at Orphans' Court sale had against the decedent, is discretionary and should only be awarded when there is a fact in dispute alleged by one party and denied by the other with some evidence of its sufficiency and not a mere allegation without any evidence in support of it. less would a mere commissioner to take deposi- Decedent's estate-Issue to try validity of disputed tions have the power to compel the production tion of same summarily, without notice, on a subpœna duces tecum. Assume that the power to compel the production of such books and papers, in a proper case and under proper circumstances, before a commissioner to take depositions does exist, still such production ought to be under the supervision of the court, and an order to produce same should only issue after an application to the court, founded on affidavit, setting forth the necessity for such production, and due notice to the adverse party. Under such safeguards in proper cases and under proper restrictions, an order to produce books at the taking of depositions would cause the minimum amount of inconvenience to the party producing the books. But to allow a subpoena duces tecum to be issued at the will of the one party would be to encourage that party to annoy and harass the other party by fishing expedi- | administration were granted to his father, the tions after evidence. In Thomas v. Smith, supra, the court forcibly points out the evils attendant on such fishing expeditions. "Were we to establish the precedent asked for, every defendant who was unwilling to pay the plaintiff's demand would resort to this mode for the purpose of fishing up a defense, or attack upon the plaintiff, from his books and papers. Application of Mrs. Emma G. Ike, widow, Opinion by BELL, P. J. Filed July 3, 1899. said Jerry Ike. The said administrator obtained an order to sell land for payment of debts, and was given permission by this court to bid at his own sale. Jerry Ike having at said sale purchased the real estate, the widow, Mrs. Emma G. Ike, filed exceptions to the confirmation of same, and M. M. Morrow, Esq., was appointed examiner to "hear testimony and make report on the following matters: First, was the purchase by the administrator fair and legal? Second, what was the indebtedness of the estate at decedent's death, particular attention being paid to the question as to the justness of the alleged indebtedness by Dr. E. M. Ike to the administrator?" At the hearing before the the examiner, Mrs. Ike, the widow, seems to have abandoned the idea of attacking the fairness of the purchase of the real estate by Jerry Ike; at least, so far as the hearing had proceeded she did not press that question. But Jerry Ike was one of the principal, if not the principal, creditors of the estate; his claims were in the form of judgment notes not entered. Counsel for the widow, in so far as vigorous cross-examination and strenuous objections could go, did attack the validity of said notes. Finally, the examiner made a ruling, on an offer of evidence, which was unsatisfactory to said counsel for the widow, and he notified the examiner that "an issue of fact to be tried by a jury to determine the validity of these notes" would be demanded. But this court, for the present at least, refuses to award any such issue for two reasons: 1. The granting of an issue by the Orphans' Court is discretionary: Kates's Estate, 148 Pa. 471; and no facts are now before the court which would move its discretion favorably towards the awarding of such issue. The trial of such issue would be neither pleasant to the parties nor edifying to the public, although, of course, if in the future it be made to appear that there is a necessity for such trial, this objection will not be allowed to stand in the way. 2. An issue is only to be awarded when there is a fact in dispute. "A fact is properly said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason. A mere naked allegation, without evidence or against the evidence, | cannot create a dispute within the meaning of the law. If it could, a party might stop the distribution whenever he chooses to make a groundless assertion:" Knight's Appeal, 19 Pa. 494. As this matter now stands, it cannot be said that any fact is in dispute, regard being had to the above definition of what constitutes such fact in dispute. At least two witnesses swore to the genuineness of the the signature of Dr. E. | M. Ike to the notes in question. In addition, we have the books of Dr. Ike, wherein he makes a menorandum showing that he owes the amount of these notes to his father. No evidence was offered, so far, in rebuttal. No witness swears that the signatures are forgeries. Mrs. Ike, the widow, in her petition for an issue, only swears "that she has grave doubts as to the genuineness of the notes," not the signatures. In view of this present state of the evidence, how can it be said that there is a fact in dispute as to the genuineness of the signatures? At most there is "a mere naked allegation," without evidence or "against the evi. dence. Then, as to the further averment in the petition asking for an issue, that Mrs. Ike, the widow, "thinks she can prove upon the trial of the issue that her husband's death was premeditated, and that if these notes should turn out to be genuine (which your petitioner doubts), then it was part of a conspiracy on the part of her deceased husband and his father, Jerry Ike (administrator), to rob your petitioner of what was rightfully due her from the estate." This is likewise but "a mere naked allegasion." The appearance of the notes, to my mind, throws no light on the question. True, it is alleged that Jerry Ike has not satisfactorily shown how and where he got the money to loan to his son, but, at best, this only raises a suspicion, and fraud is not to be presumed; it must be proven. Taking the evidence as it stands at present, I do not think that it would sustain a verdict finding that there was a conspiracy between Dr. E. M. Ike and his father, Jerry Ike, to cheat the widow by means of these notes. "An issue should not be granted on evidence so slight and insufficient that, in case a verdict should be rendered therein in favor of the petitioner, the trial judge would be bound to set it aside. In such a case testimony merely tending to prove circumstances of suspicion is insufficient. Alleged fraud must be established either by direct proof or by clearly proved facts sufficient to warrant a presumption of its existence. It is not enough to charge fraud and prove, in support thereof, slight circumstances of suspicion only:" Hagy v. Poike, 160 Pa. 522. But it is claimed by counsel for the widow that the examiner erroneously shut off inquiry as to fraud, and it was intimated that connsel intended to call Mrs. Ike, the widow, to prove suicide by her husband and fraud on his part; that she would testify to conversations of her husband, had with her probably on the last night of his life showing these facts. It seems to me that, as the testimony stood at that time, the examiner was correct in his ruling. The mere fact of suicide in itself was no proof of fraud, and I think it would be the better plan to require proof of other links in the “chain of circumstances" showing fraud before going into the question of suicide. title explains the subject-matter. But a discussion of the contents in detail is not possible in this notice. As to the allegation that Mrs. Ike, the widow, can, if permitted to testify, prove a conspiracy between her husband, Dr. Ike, and his father, Jerry Ike, to defraud her and cheat her out of The work is essentially a practice work. It her statutory rights as widow, by the giving of contains the statutes relating to the subjects the notes in question, this might be said: 1. treated and the rules of law with the decisions. This court would not be justified in granting an The subject-matter is very concisely stated. issue until it was disclosed just what facts Mrs. | The author in his preface says: "It behooves Ike would testify to. 2. It is very doubtful the writer, as a rule, to summarize the rules of whether Mrs. Ike would be a competent wit-law rather than enlarge upon them. A book that in a few words imparts to the profession the gist of the act or decision and points as an index to the authority or case where a full discussion of the point sought for may be found, is of more value to the lawyer than volumes to be searched through for the real point of law, which but a few of well-arranged pages may contain." ness. If she undertook to testify that her husband entered into a conspiracy to defraud her, would she not be testifying "against" her husband (Act of May 23, 1887, 5, P. L. 158)? Her husband is dead. She undertakes to say that a note he executed was given to defraud her. Her interest is adverse to the act of the dead man. Would not she be barred from testifying by clause (e) of section 5 of the same act? Another interesting question arises in this connection, namely: Can the widow be heard to allege fraud on the part of her husband to defraud her when she is not a creditor? It is unnecessary now to decide this point, because, for the reasons herein before indicated, the rule granted March 20, 1899, to show cause why an issue should not be awarded, is discharged. NEW BOOKS. REALTY PRACTICE.-A concise summary of the Prin ciples and Decisions relating to Realty Practice in Pennsylvania and adjoining States. By J. T. DONLY, Esq., of the Allegheny County Bar. Published by the author. THE LAW OF PRIVATE CORPORATIONS ORGAN- To lawyers who have occasion to refer to the corporation laws of Deleware this work will be of assistance. Prior to 1883 all charters in Deleware were granted by special Acts of the Legislature. In that year a corporation law was enacted which provided for the granting of charters and the control of a limited class of business corporations. The new Constitution of Deleware, passed in June, 1897, provided that no corporation should thereafter be created by special act, but by general law only. In con J. T. Donly, Esq., has been a practicing member of the Allegheny County Bar for upwards of six years past. Previous to locating in Allegheny county Mr. Donly practiced law in Butler for twenty years, and was also prominent in the politics of that county. A good work on Realty Practice in Pennsylvania is a much-formity with this provision the general corporaneeded book, not only for attorneys, but for others interested in the real estate business. We have our standard works on the principles of law relating to real estate, volumes that it would be hard to improve upon, but none on realty practice, which is essentially the subject of Mr. Donly's work. The author has been especially interested in this branch of the law, and has brought great labor, time and research to the preparation of his work. Not long ago, it The work covers two hundred and fifty pages, may be remembered, he issued a short pamphlet is well printed and carefully indexed. A set of on the Examination of Titles. Considerably forms necessary for obtaining a charter, increasenlarged and put in better form this subjecting capital stock, etc., together with a table of forms one of the chapters of the work. The fees, is attached. tion law of March 10, 1899, was passed which is the one annotated in this volume. That part of the act relating to municipal corporations is not discussed, however. As there is a great similarity between this law and the general corporation law of the State of New Jersey, the author has added to the Deleware cases cited those of the New Jersey courts, construing similar provision of the New Jersey statutes. E. B. V. Excessive tolls-Right to recover after payment. A navigation company maintaining dams on the river charged different rates of toll for certain kinds of coal. The river men paid the toll without any notice that they paid under protest or would try to recover the money back. Held, in suit to recover the excessive tolls paid, that plaintiff could not recover. Where the tolls were not acually paid, but were charged to the boat men under an arrangement for periodical payments, the fact that the tolls were excessive was a good defense to a suit by the navigation company to recover the unpaid tolls. No. 585 Aug. T., 1897. Motions for new trial. Opinion by MCCLUNG, J. Filed September 28, 1899. These eight cases were tried together. Counsel consented to this for the purpose of saving time, with the understanding that bills of exception to the rulings would be sealed in each case, if requested. With the exception of the question of the reasonableness of the lockage charge for run of mine coal, the facts were practically undisputed. | when not already paid, and as to indebtedness still existing, sought to set off such portion of the run of mine tolls previously paid as the jury should find to be in excess of reasonable rates. The two parties who are plaintiffs against the navigation company sued to recover back the alleged excess of tolls paid by them for run of mine coal. The jury was instructed that they could reduce the unpaid claims of the navigation company if they found the tolls unreasonable, by the amount of the excess, but that no tolls already paid could be recovered back, either by direct suit or by way of set-off. The instruction with respect to the right to recover back tolls already paid is the ground of this motion for a new trial. When the navigation company was satisfied of the responsibility of its patrons it did not ask payment in cash at its locks. Its method of dealing with these parties was as follows, viz.: The amount of the lockage was taken by the lockkeepers as the boats passed, and an account sent to the company's bank in Pittsburgh, and the shippers went there and paid the account for the preceding month on or before the 10th of each month. It was well understood by all purties that if a shipper failed to make the monthly payment, his credit would be revoked, and he would thereafter be compelled to pay in cash for each boat as it went through the lock. In the case of C. Jutte & Co. the practice was somewhat different. The master of the boat in charge of the coal made out a statement of the character and amount of his coal, when he came to the lock. The lock keeper then carried out the amount of toll and the captain appended an For a number of years prior to 1890, the navi- order on the firm for the amount. These orders gation company had a published schedule of accumulated frequently for some weeks, and rates for passing coal through its locks on the were then taken to the office of the firm in the Monongahela river. This showed a certain rate city and then paid by check. In no case were for lump or screened coal (or simply "coal" as any of the present parties compelled to pay cash it was called) and half that rate for slack. at the locks. On several occasions Jutte's capAbout 1890 the other parties to the suits, ship-tain made out his statement as so much coal pers of coal on the river, began to ship "run of mine," or unscreened coal. The company instructed its lock keepers to charge for this "run of mine" at the full or screened coal rate. The shippers paid this rate until the navigation company's property was taken by the U. S. Goverment and the river was made free. Then the present controversy arose. Six of the parties were in arrears for tolls, and were sued by the navigation company. They defended upon the ground that the run of mine tolls was unreasonable and should be reduced and so much slack. The lockkeeper refused to receive the statements until they were changed to "coal." The shippers of coal or some of them, several times, complained of the charge for run of mine coal, and asked the company or some of its officials to fix a special rate. This was refused and the shippers continued to pay in the ways above described. In no case, either when paying tolls or at any other time, did they in any way give the company to understand that they would attempt to reclaim any |