to see that the witness stated the matter inquired | the defendant; that Joseph Shloss himself conof in detail. spired to deceive the plaintiff as to the proper HARE, P. J. On the ground that the opposite defendant, and knowing that he was the wrong party's witnesses may not be obtainable at a party, appeared by attorney and went to issue. future day, we think that the cross-interrogato- Hoffman, for the rule. ries may be propounded immediately after the witness has answered the direct interrogatories. Further, that as any witness may be called and examined by the opposite party in chief, the cross-interrogatories must be cross-examination strictly, and may be excepted to if they are not. The Examiner should explain the interrogatories when explanation is necessary. The plaintiff asks leave to amend his præcipe, file a withdrawal of his pleadings in the issue between himself and Joseph Shloss, and bring the proper defendant into court by an alias writ. As to his right to do this see Dusenberry v. Bradley, 6 WEEKLY NOTES, 413. Ledyard, contra. THE COURT. The proper remedy is to discontinue present action, and to commence action anew by issuing a writ against the true defend ant. Rule discharged. C. P. No. 2. March, 1880. Zanssig et al. v. Telegraph Co. Practice-Letters rogatory-Execution thereof in foreign language. Sur exceptions to execution of letters rogatory. This was an action of trespass on the case for negligence in the transmission of a telegram by the plaintiffs, Adolf Zanssig & Co., of Philadelthe Western Union Telegraph Company from phia, to the firm of Alexander & Co., of Gablong, in the empire of Austria. Letters rogatory had been taken out by the plaintiffs for the purpose of taking the testimony of Moritz Zanssig, who was the managing clerk of the firm of Alexander & Co., in Gablong, Austria. The return or execution of the letters rogatory was in a foreign language, and stated that the letters rogatory had been adopted or taken up by the R. I. District Court, that there were pres ent at the examination the Judge Associate of the District Court, a sworn secretary, and the witness, Moritz Zanssig; that the witness had been sworn according to custom. The return was signed by the Judge Associate and the sworn secretary, and there was appended a certificate of the R. I. District Court that the Associate Judge was empowered to execute or practice in the office of a Judge. The exceptions were chiefly that the letters rogatory had not been executed by a Judge or tribunal having jurisdiction of civil causes, and authorized to administer oaths; that the return was in a foreign language unknown to the defendants; and that the translation was incorrect. B. H. Brewster, for the exceptions. THE COURT. Exceptions dismissed. Feb. 19, 1881. Through a mistake of the District Surveyor the lien was described as against property situate on inches south of Venango Street, "instead of 69 the east side of Germantown Avenue, 69 feet 5 feet 5 inches south of Ontario Street. Plaintiff asked to amend so that the claim should appear to be filed against property on the east side of Germantown Avenue 69 feet 5 inches south of Ontario Street." Notice of this rule had been Rule to show cause why claimant in interpleader should not be permitted to file his own bond. given defendant. Pierce Archer, for the rule. The Act of April 21, 1858 (Pur. Dig. 1088, pl. 22), provides that municipal claims may be amended at any time before or at the trial on notice given to defendant under rule of Court. [BRIGGS, J. We cannot allow this amendment if it will affect an innocent purchaser for value.] The property has not changed owners since the lien was filed. THE COURT. Rule absolute, saving all inter On May 24, 1880, judgment was obtained in the Court of Common Pleas of Lebanon County by Phillips against Mrs. A. M. Quigley. This judgment was assigned to N. B. Desch, and, Mrs. Quigley having removed to Philadelphia, a transfer of the judgment was made to the Common Pleas of Philadelphia County. Execution issued, and a levy was made by the sheriff upon the furniture and fixtures in the house of Mrs. Dahl (formerly Mrs. Quigley), No. 208 Spruce Street. The property levied upon was claimed by Hans J. Dahl, and a rule of interpleader was entered by the sheriff to determine its ownership. The affidavit of the claimant stated the follow-mediate rights. ing facts: The stock and fixtures of the premises No. 208 Spruce Street, levied upon by the sheriff under the fi. fa. issued on the transferred judgment, were not the property of the defendant, but his own individual property, having been purchased by him. That he had, at various times, deposited money with the defendant to enable her to furnish and stock the place No. 208 Spruce Street, and to carry on business there for him during his absence; and had taken from her receipts worded to that effect. With this money the defendant had purchased the furniture, etc., taken in execution by the sheriff. The money was not given to the defendant for her Orphans' Court. Bucknor's Estate. Dec 22, 1880. Review Petition for modification of decree thereon Jurisdiction-Practice-Reference back to auditing judge, after final decree and decree on review thereof. Sur petition for modification of decree on petition for review. In this case, reported in 7 WEEKLY NOTES, 470 (where all the facts are fully stated), it appeared that the prayer of the petition to amend the adjudication was granted. In pursuance of the opinion then filed, the following decree was subsequently made by the Court in October 1879: "It is ordered that said adjudication is not conclusive as to the amount which said A. J. Bucknor, Jr., deceased, or his representatives are entitled to receive, but that whether there is a set-off, or advancement, and if so the amount thereof, and whether there is any balance remaining after deducting the same, are left to be determined in said attachment suits." F. F. Milne now filed a petition, which averred that the issues in said attachment suit came on duly for trial, when all the evidence was submitted, when the jury were directed to render a verdict for the plaintiff (the present petitioner) reserving the question of law as to whether the Common Pleas had jurisdiction, also that a motion for a new trial was made by counsel for the garnishee, and the Court of Common Pleas, being of opinion that it had no jurisdiction as to the question whether the due-bill was a loan or advancement by decedent to his son, directed petitioner to apply to this Court for a modification of so much of its decree, as given above, as included that question. The petitioner also alleged that there never were any advancements made and charged by the said Bucknor to his son, nor any pretension thereof, until the word advancements was introduced into the decree. The prayer was for an amendment and modification of this decree, by striking out the word advancement and as much as relates thereunto. admitted by demurrer (see report, 7 W. N. C. 470), we were of opinion, that, while the application did not come within the Act of 1840, it would be inequitable to permit a decree of distribution so made to preclude proof of the facts, and an ascertainment of the amount actually due the distributee. The prayer of the petition was therefore granted, and a decree, prepared by counsel for the accountants, and not objected to by counsel for the attaching creditors, was entered, no point being made as to the exclusiveness of our jurisdiction with regard to the matters involved. This question is now presented for our consideration. So far as advancements are concerned, it is clear that the jurisdiction of the Orphans' Court is exclusive. At one time the law was supposed to be otherwise (Earnest v. Earnest, 5 Rawle, 219), but the point was settled in Holliday v. Ward (7 Harris, 485). The reasoning which led to this decision is equally applicable to matters of set-off. The Orphans' Court is the tribunal required to make distribution of the estates of decedents, and William A. James, the accountant, filed an answer, to the effect that the decree should not be modified as prayed for, because it represented what this Court intended to decide, and because if so modified, this Court alone having jurisdic-clothed with full power to determine all matters tion of said question of advancement, the Common Pleas cannot pass upon the same, and injustice will be done the estate by depriving it of the deduction from the share of A. J. Bucknor, Jr., on account of such advancement. M. Arnold, for the petitioner. S. Gustine Thompson, contra. January 29, 1881. THE COURT. When the account in this estate was before the Auditing Judge, counsel were under the impression that all questions relating to the distributive share of A. J. Bucknor, Jr., could be determined under the attachment sur judgment then pending in the Court of Common Pleas. Nothing was said, therefore, with regard to the loans, etc., alleged to have been made to him by the decedent; and, as a necessary consequence, the adjudication awarded to him, subject to such attachment, an aliquot part of the estate, without any deduction whatever. Subsequently counsel, apprehending that the decree thus entered would be conclusive, upon the trial of the attachment as to the amount of the share, presented a petition alleging the existence of claims on the part of the estate against the distributee, and asking that the adjudication might be opened so far as to leave the question of amount unembarrassed by any technicality when the matter should come before the Court of Common Pleas the attachment in that court having preceded the adjudication. The allegations of the petition having been relating thereto. The amount withheld from a distributee's share by reason of his debt to the estate, equally with amounts advanced, must go into the balance for general distribution, and be divided among all the parties entitled. This would be impracticable in any other Court than the Orphans' Court; and the only effect of a determination by the Common Pleas that a distributee was not to receive his share because he was indebted to the estate in a sum which exceeded it, would be, so far as other distributees were concerned, to require the filing of a new account by the executor or administrator, and a redistribution to be made by the Orphans' Court. (See Springer's Estate, 5 Casey, 208; Hughes's Appeal, 7 Smith, 181; Achford v. Ewing, 1 Casey, 213.) The two cases last cited, in terms, assert the exclusiveness of the jurisdiction as to all matters affecting the question of distribution. As we are now asked to modify our former decree, so far as it relates to the alleged advancements, we have concluded, instead of thus confining the correction, to do what we should have done when the adjudications were opened, viz., refer the accounts back to the Auditing Judge for the purpose of hearing the allegations and proof with regard to the share of A. J. Bucknor, Jr., and of ascertaining what amount, if any, was due to him in respect of such share at the date of the original adjudication, or at any time prior thereto after the death of the decedent. Decree accordingly. WEEKLY NOTES of Cases. VOL. IX.] THURSDAY, MARCH 24, 1881. [No. 3i. Supreme Court. Jan. '80, 162. Notary Public, 486 Broadway, N. Y. On November 12, 1879, on motion of counsel for the plaintiff, a rule on the defendant returnable on the 15th, was granted to show cause why January 31, 1881. a commissioner should not be appointed to take testimony. After a hearing the Court discharged the rule, FINLETTER, J., delivering the following opinion: Horstmann et al. v. Kaufman. Horstmann's Appeal. "The very able argument of the counsel for defendant has left scarcely a doubt on our minds Constitutional law-Debtor aud creditor-Attachment Act of June 11, 1879, relative to the appointment of a commissioner to take testimony as to the unconstitutionality of the Act. We of fraudulent debtors-Unconstitutionality of The Act of June 11, 1879 (P. L. 129) is unconstitutional and void, because it proposes on its face to force a debtor to forego his constitutional right under Art. I. Sec. 9, of the Constitution, of not being compelled to give evidence against himself, with which the Legislature has no power to interfere. are not, however, called upon to decide this question, inasmuch as we are compelled to refuse the rule on other grounds. The Act must be construed in conformity with the construction given to the Act to which it is a supplement. The affidavit should, therefore, set out the facts which warrant the belief that the defendant has property, etc., and also the facts which warrant the averment of fraudulent concealment." (Reported 8 WEEKLY NOTES, 73.) The plaintiff took this certiorari and appeal, assigning for error, the order of the Court discharging the rule. Sharp (Alleman, with him), for the appellant. Per GORDON, J. Arbitrary compulsion and duress by Court stand on no higher ground than the duress and compulsion of natural persons. In either case because of the wrong done to the witness, the evidence thus produced with the requirements of Art. III. Sec. 3, of the cannot afterwards be used against him. Certiorari to and appeal from Common Pleas No. 3, of Philadelphia County. The case came before the Court below on a rule to show cause why a commissioner should not be appointed under the Act of June 11, 1879 (P. L. 129,) to take the testimony of the defendant and others. Charles J. Horstmann, Otto Von Hein and Gustavus Walter, trading as Horstmann, Von Hein & Co. obtained a judgment, September 20, 1879, against Charles Kaufman of June Term, 1879, No. 850, on which a fi. fa. issued upon the same day, to which the sheriff returned nulla bona. An affidavit was then filed by the plaintiff as follows: Constitution. The Act of 1879 is entitled "A supplement to an Act approved March 17, 1869, entitled 'An Act relative to fraudulent debtors.' The subject of the Act of 1879 is germane to the subject of the original Act, and, therefore, within the article of the Constitution. In re Petition of First Presbyterian Church of Pittsburgh, 6 WEEKLY NOTES, 421. State Line R. R. Co.'s Appeal, 27 Sm. 429. Allegheny County Home's Appeal, Ib. 77. The Act of 1879 is not in violation of Sec. 8 of the Declaration of Rights, which was aimed at an abuse of power entirely different from the power given by this Act. The Declaration of Rights is nearly identical in words and quite identical in meaning with Art. IV. of the Con"Gustavus Walter, being duly sworn accord-stitution of the United States, the purpose of ing to law, deposes and says, that he is a judg-which was to prevent the issue of general crimiment-creditor of Charles Kaufman, the defend-nal warrants, under which in England parties were ant in the above cause, and that he is a member arrested without being named therein. of the firm of Horstmann, Von Hein & Co., the plaintiffs therein, and that he has reason to believe that the said defendant has property, rights in action, stocks, moneys or evidences of debts, which the said defendant fraudulently conceals VOL. IX.-33 Story on the Constitution, 1895 (ed. 1833). The process given by the Act of 1879 is the common law writ of subpoena. The objection that the Act violates Section IX. of the Bill of Rights which provides that "in criminal prosecutions the accused cannot be compelled to give evidence against himself" is without force because : (1) The witness has his common law privilege of refusing to answer where such answer will have a tendency to expose him to a penal liability, to any kind of punishment, or to a criminal charge. I Greenleaf on Evidence, sec. 451. Regina v. Garbett, 1 Dennis C. C. 236. Where the answer is made under a compulsory statute requiring the witness to disclose his crime, such disclosures cannot be used against him in a criminal prosecution, and therefore he cannot decline to answer. U. S. v. Prescott, 2 Dillon C. C. 405. In re Brooks, 5 Pac. L. R. 191. (2) He has ample protection under the Act July 22, 1842, Sec. 22 (Purd. Dig. 53, pl. 70), which provides in substance that no person shall be excused from answering as a witness in relation to the fraudulent concealment of property, but no answer given by him shall be used against him in any other suit or prosecution. (2) Because it is in violation of Art. I. Sec. 9 of the Constitution, which provides that "a man cannot be compelled to give evidence against himself." The authorities cited on the other side to show the constitutionality of the Act are not judgments of Courts of last resort. It is well established that a statute making parties witnesses against themselves cannot be construed to compel them to disclose facts which would subject them to criminal punishment. Cooley on Constitutional Limitations, 394. In order to compel a man to testify against himself the statute must exempt him from criminal prosecution. Wharton's Criminal Law, & 808. If the Act is constitutional, it involves the abandonment of our present system of procedure and the adoption in lieu thereof of the inquisitorial system of the civil law. It enables a plaintiff to compel a defendant to criminate himself and others in an ex parte proceeding. The constitution does not protect a man from To the contention that a perfect analogy is to giving evidence affecting his property rights, or be found in the practice under the bankrupt Act the Act of March 27, 1865, Sec. 1 (Purd. Dig. of 1867, it is a sufficient answer to say that prac624, pl. 13) would be unconstitutional. This no tice under that Act was not uniform. On the one would claim. The argument of the other side contrary, it was held in two cases that a bankis fully answered by the practice under the Bank-rupt could not be compelled to answer when his rupt Act of 1867 where there was no provision that disclosures made by a bankrupt upon his examination should not be used against him in a criminal prosecution, and yet it has been held that the bankrupt could not refuse to answer any question concerning fraudulent concealment of property. This Act has been held to be constitutional in Loewi v. Haedrick, 8 WEEKLY NOTES, 70. Dorf v. Matthews, 36 Leg. Int. 372. Cox v. Walton, WEEKLY NOTES, 360. The Court below discharged this rule on the express ground that, in conformity with the practice under the Act of March 17, 1869, to which this Act is a supplement, the affidavit must set out the facts upon which the plaintiff has reason to believe that defendant has acted fraudulently. But this Court has since decided that an affidavit in the words of the Act of 1869 is suffi cient. Sharpless v. Ziegler, 8 WEEKLY NOTES, 190. (1) It does not clearly express its subject in its title, as required by Art. III. Sec. 3, of the Constitution. It is not a supplement to the Act of March 17, 1869, as its title professes, for that Act was only to authorize the commencement of an action by attachment instead of by summons, and it is not germane to that object. It is rather a supplement to the Act of 1836 providing for bills of discovery. answer would criminate himself. In re Koch, I B. R. 549. The Acts of 1842 and 1879 are not at all analogous, because the proceeding under the former is a judicial act, whereas in the latter the discretion of the plaintiff sets the procedure in motion. It is fatal to the constitutionality of the Act that the answers of the defendant may expose him to a criminal prosecution, for the alleged acts of the defendant are the very acts made misdemeanors by sections 130, 131, and 132 of the Penal Code of 1860. Henry Emery's Case, 107 Mass. 172. While it is true that an affidavit in the words of the Act of 1869 has been held valid, yet that affidavit swears to a fact, and not to an opinion or mere belief, and gives security for any injus tice done under it. This appeal is in effect an application to this Court to issue a mandamus to the Court below commanding it to appoint a commissioner. February 14, 1881. THE COURT. In Sharpless v. Ziegler (8 W. N. C. 190), we held that under the Act of 17th of March, 1869, where the affidavit followed in general terms the wording of the statute, it was a sufficient warrant to the prothonotary to issue the writ of attachment, and that the Court had no power to quash such writ, though it might, on proper cause shown, |