lowing arrangement with Mrs. Hodges: Mrs. Lane, the plaintiff, was to live in the house, furnish her room, pay Mrs. Hodges 25 cents for each meal she should take, and also pay $14 per month as rent for her room. Very few meals were eaten by Mrs. Lane under this arrangement, but she continued to rent the room at $14 a month, getting her meals elsewhere, or preparing them in her own room. The property of a stranger found on the demised premises left for no purpose of trade or other purpose requiring protection as a matter of public policy, is liable to distress for rent. It is true that a boarder's goods are exempt from distress. Kleber et al. v. Ward et al., 7 Norris, 93. Erb v. Sadler, 8 WEEKLY NOTES, 13. Jones v. Goldbeck, 8 WEEKLY NOTES, 533. These cases follow Riddle v. Welden (5 Whar On August 19, 1879, the rent due by Mrs. Hodges to the defendant being in arrears, dis-ton, 9), in which case the distinction between traint was made upon the premises, and the furniture and goods of Mrs. Lane, in her own room, were distrained upon. Mrs. Hodges having fraudulently removed her goods from the premises, the goods of Mrs. Lane were sold under the distress, notwithstanding that she had given no tice to the defendants and to the constable making the distress that the goods were hers, and of the arrangement under which she lodged. a boarder and a subtenant is admitted, and the recovered from him in an action for use and oc- the public nature of the house protect his goods in it?" The question whether Mrs. Lane was a boarder was properly left to the jury as a question of fact. March 23, 1881. THE COURT. Rule discharged. THAYER, P. J., charged, inter alia, as follows: "If Mrs. Lane only rented these rooms and paid rent, the goods are liable to distress, and the defendants were right in what they did. Mrs. Lane says that she rented these rooms at so much a month, and to have meals at twentyfive cents each, and fourteen dollars per month rent. This arrangement seems to have lasted a very short time. If it ceased before the rent accrued, and she became only a renter of the room, her goods were liable under the distress.. To constitute one a boarder he must get meals from the keeper of the boarding-house, that is, he must constitute one of the family of the boarding- Practice-Witnesses-Refusal to obey subpana house keeper; the goods of a person in that reto testify before an examiner-Attachment— lation are exempt from the distress, but not the Upon the refusal of a witness to appear before goods of a mere renter of rooms." an examiner the Court will issue an attachment. Verdict for defendant. Plaintiff obtained this rule on the ground of the alleged error in the instructions above cited. Jenkins, for the rule cited Thompson v. Ward, L. R. 6 C. P. 360. C. P. No. 4. Bowen v. Thornton. Feb. 12, 1881. Rule to show cause why an attachment should not issue against a witness to appear before an examiner. A subpoena had twice been served upon the witness (the defendant), who refused to appear before the examiner. A certificate from the exWhere the course of the business must neces-aminer showed that several meetings had been sarily put the tenant in possession of the property held, a reasonable time allowed for the witness of his customers, it would be against the plainest to appear, and that, owing to his absence, it be dictates of honesty and conscience to permit the landlord to use him as a decoy, and pounce upon came necessary to continue the case. whatever is brought within his grasp, after Gangewer, for the rule. having received the price of the exemption in the enhanced value of the rent. Brown v. Sims, 17 S. & R. 138. The goods of a boarder are not liable to be distrained for rent due by the keeper of the boarding-house. Riddle v. Welden, 5 Whart. 9. Cadwalader v. Tindall, 8 Har. 422. Howe Sewing Machine Co. v. Sloan, 6 Norris, 438. J. R. Rhoads, contra. THE COURT. Rule absolute. [Cf. Assigned Estate of Hulburt, 8 WEEKLY NOTES, 254.] Orphans' Court. Bauer's Estate. February 22, 1881. as a party in the petition, decree, and notices; but it was held in that case that as to parties who are so named, it is to be conclusively presumed, even though not affirmatively shown by the record, that all requisite notices were given; and hence, as afterwards decided in Vensel's Appeal, supra, as to such parties, the mere fact that a citation did not issue is immaterial. In the case before us, a petition for partition Partition-Act of April 14, 1835-Citation to was filed by Henry A. Bauer, in 1869, in which parties in interest-Although the proper practice the widow of the intestate, who is the present is to issue such a citation, this is not essential petitioner, was named as a party, and her intewhere the names of the parties in interest ap- rest explicitly defined. There was no citation, pear in the petition, decree, and notices-Pre- but the petition was set forth at length in the writ sumption that all requisite notices were given. which commanded the sheriff to give notice to Sur petition to award a new writ of partition."the parties aforesaid." His return showed In Bauer's estate (reported ante, 336, q. v.) the Court refused to enter a decree, that premises sold by order of Court under proceedings in partition in 1870, should be charged with dower. Catherine Bauer, the petitioner above, now presented a petition alleging that no citation issued before the award of the inquest in the partition, and consequently she was not a party thereunto. The prayer was for a citation on the widow and children of Augustus Karstien, to show cause why a new writ should not be awarded, so that by further partition being made between said parties and herself, her dower interest could be thus secured. An answer pro forma was filed by Elizabeth Karstien, which set forth the sale of the premises to her husband, in October, 1870, which sale was duly confirmed by the Court, discharged from all lien of dower, and other encumbrance. John White and J. E. Bowers, for the petition. G. W. Arundel, for the respondent, cited the Act of April 14, 1835 (Purd. Dig. 435, pl. 147), and urged that when the name of a party in in. terest appears in a petition for a partition as directed by the above Act, it will be conclusively presumed in favor of the regularity of the proceedings, that due and regular notice has been given, although not affirmatively shown on the record. Richards v. Rote, 18 Sm. 253. March 5, 1881. THE COURT. While it is undoubtedly the proper practice in proceedings in partition to issue a citation before awarding an inquest, it has long been settled that it is not essential to do so, and that the partition is not rendered invalid by reason of the want of preliminary notice to the parties. This was decided so long ago as Rex v. Rex (3 S. & R. 533) and so recently as Vensel's Appeal (27 Smith, 71). It is true, as pointed out by Judge SHARSWOOD in Richards v. Rote (18 Smith, 253), Rex v. Rex was decided under the old Acts of Assembly, while, since the Act of 14th April, 1835, a partition will not divest the interest of one not named affirmatively that such notice was given, and that the property, being incapable of partition, had been valued and appraised by the jurors. The order of sale afterwards granted, recited that "all of the parties in interest had refused to take... at the valuation, and agreed that the order of sale be made absolute," which agreement, the record shows, was in writing, signed by the widow, as guardian of two of the heirs, though not by her separately as "widow." The return to the order of sale stated that the premises now in question were sold to Augustus Karstien for the sum of $1330, and the sale so made was confirmed September 8, 1870, security being ordered in double the amount of purchasemoney. It is now alleged that in making title to the purchaser no provision was made for securing to the widow her interest in the purchase-money, and that the whole amount was paid to the administrator, by whom, under the order of Court, the sale was made. For this reason, and because of the omission to issue a citation against her before the award of the inquest, it is supposed that the partition did not affect her, and we are asked to award a new writ in order that further partition may be made as between her and the purchaser, and her interest thus charged upon the premises according to the provisions of the Act of Assembly. That this cannot be done is clear. The partition already made was a legal conversion which bound the widow, and, as was decided in Vensel's Appeal, supra, divested her interest so far as the right to demand partition was concerned. How far the omission to have the widow's interest charged upon the premises can deprive her of her rights, or how far her own actions may have estopped her from asserting them, are questions not before us. Her remedies for collection are not within the jurisdiction of this Court. Petition dismissed at the costs of the petitioner. Opinion by PENROSE, J. INDEX OF ALL THE CASES REPORTED IN THIS VOLUME. BY RICHARD C. DALE, Esq. ABATEMENT, of legacies. See DECEDENTS' ACKNOWLEDGMENT. See Deed. ACTIONS. The mere issuing of process against ACTION ON THE CASE. Where an act of Where a husband seeks to recover damages for an ACTS OF ASSEMBLY. 1713, March 27. Limitations. 465. Distress 137, 438. 1857, March 14. 1858, April 21. 1858, April 21. 321. Sheriff's Sales. 418. 1859, April 12. Orphans' Court. 380. 1861, May 1. Wills. 207. 1863, May 6. 1832, March 29. Guardians. 255. 1865, March 27. Railroads. 291. Evidence. 513. 1866, March 23. 1867, April 8. 1866, September 24. 57. 1867, April 13. 1834, February 24. Decedents' Estates. 275, 471. 1868, April 4. Railroads. 497. Trustees. 421. ( 577 ) ADMIRALTY. No maritime lien arises for sup- ADVANCEMENTS. Distribution where shares What words in will construed to create an advance- A rule upon the plaintiff to produce his books of What a sufficient copy. A contract of surety- AFFIDAVIT OF DEFENCE LAW-Continued. A claim property bond in replevin is not a sufficient A plaintiff will not be permitted to withdraw a por- Affidavit, when sufficient. In an action for rent In an action upon a promissory note, an averment In an action for liquors sold, an affidavit that they What a sufficient denial of partnership relation. What a sufficient averment of defective quality in What an insufficient averment of a set-off. (C. P.) What an insufficient averment of defect in quality. In an action by a landlord against the surety of his In an action upon a promissory note made in New An averment in an affidavit of defence of the law of In an action upon a promissory note given in pay- Affidavit of defence under rule of Court in AGENT. See EVIDENCE. PRINCIPAL AND AGENT. A new defendant cannot be Under what circumstances the record may be amend- Surplusage in judgment, when formal defects in, can Where a conditional verdict and judgment for plain- AMENDMENT-Continued. tiff in ejectment omitted to fix a time for the payment A purely formal amendment, such as the insertion of While a large discretion may be exercised by the ATTACHMENT, EXECUTION. See EXECU- TION. ATTACHMENT, FOREIGN. See FOREIGN ATTACHMENT. See ATTACHMENT FOR CONTEMPT. ATTORNEY-AT-LAW, The office of an attor- An amendment to correct an error apparent upon A Court has the power, without any formal com- Under the Act of April 21, 1858, a municipal claim 511. The Act of June 11, 1879, authorizing the amend- GAGE. See MORT- ARMSTRONG COUNTY. See AFFIDAVIT OF ASSIGNMENT FOR THE BENEFIT OF Creditors who have lent money to the grantor of real The commissions of an assignee for the benefit of ASSUMPSIT. The rule that money collected by There may be cases of misconduct not strictly pro- Ib. Attorney and Client, It is a well-settled prin- 13. A commission of two per cent. is a reasonable figure There is no definite standard of commission for the Upon a judgment for $2600 by warrant of attorney AUTHOR. The performance of an uncopyrighted BAIL IN ERROR. A recognizance of bail in The recognizance may be sustained as a voluntary But to treat the recognizance as a nullity, by issuing |