pleted. The mechanic's lien in suit was filed for the balance due on the house. Plaintiff obtained judgment. Defendant appeals. Affirmed.

E. H. Little and Robt. R. Little, for appellant. John F. Hawkins, A. L. Fritz, and Charles G. Barkley, for appellee.

But again, in the absence of plaintiff's testimony, which, as appellant informs us, was lost or mislaid, how could we convict the learned court of error in drawing the conclusions of fact above quoted? It could not be done, and it would be a travesty of justice to attempt it. Nor does it avail anything to suggest, as appellant does in his paper book, that he has furnished us with what he alleges, and no doubt believes, to be the substance of the lost or mislaid testimony. That cannot be accepted as a substitute for the original. The plaintiff has never assented to that, nor has the court below ever had an opportunity of expressing its assent or dissent to its correctness. Lost testimony, like other lost papers belonging to a record, may be supplied by consent of all parties in interest, with approval of the court; otherwise, lost portions of the record must be supplied in the regular and orderly way, familiar to every practitioner. It was incumbent on appellant to furnish us with the record as full and entire as it was before the diminution occurred, and that, doubtless, could have been done in one or other of the modes indicated. As the matter stands, the alleged substance of plaintiff's testimony is no part of the record, and must be so treated. But, as already intimated, independently of any question as to the missing testimony, the case is with the plaintiff. The order refusing to open the judgment, etc., is affirmed, with costs, to be paid by appellant.

FULLMER v. POUST. (Supreme Court of Pennsylvania. May 1, 1893.) MECHANIC'S LIEN-SEVERABLE CONTRACT. Plaintiff agreed to sell defendant a vacant lot, and to build her a house thereon. Both agreements were written on the same paper, but the consideration for each was separate, and payable at different times. Plaintiff built the house, and then gave defendant a deed of the property. Held that, as the agreements were severable, the plaintiff was entitled to a mechanic's lien on the property for the amount due him for building the house.

Appeal from court of common pleas, Columbia county; Ikeler, Judge.

Scire facias by J. D. Fullmer against Jemima S. Poust upon a mechanic's lien. Plaintiff had agreed to sell defendant a vacant lot for $200, and to build her a house thereon for $250. The house was

PER CURIAM. While the plaintiff's agreement to sell and convey the lot to defendant for $200, payable on or before No. vember 15, 1890, and his covenant to build thereon for her a house, of the size, etc., therein specified, for the further consideration of $250, payable, $50 within 30 days, and the residue on May 15, 1891, etc., are written on the same paper, they do not necessarily constitute an entire contract. The former is so distinct from the latter as to time of payment, etc., that they may well be treated as severable. If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by the law, such a contract will generally be held to be severable. But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject thereof may consist of several distinct and wholly independent items. 2 Pars. Cont. 29, 31; Oil Co. v. Brewer, 66 Pa. St. 351; Scott v. Coal Co., 89 Pa. St. 231; Graver v. Scott, 80 Pa. St. 88; Morgan v. McKee, 77 Pa. St. 228. The distinction is clearly pointed out by the late Mr. Justice Williams in Oil Co. v. Brewer, supra. The consideration for the lot was paid within the time specified in the contract, and shortly thereaft. er, upon urgent demand of the defendant, the deed therefor was executed and deliv. ered. The payments on the building contract were not all promptly made, and within the time required by law plaintiff filed a lien against the house, etc., and afterwards issued this scire facias thereon. The contract to sell and convey vested in defendant an equitable interest in the lot on which a mechanic's lien would attach. That equitable interest was enlarged into a fee by conveyance of the legal title; and, the building covenant being severable from the contract to convey the lot, the plaintiff was clearly entitled to en. force his lien against the building, etc., for the purpose of collecting balance due him by defendant under the contract with her for erection of the house. The specifications of error do not require special consideration. Neither of them is sustained. Judgment affirmed.

PERRIN v. WELLS et al. (Supreme Court of Pennsylvania. May 1, 1893.) DISTRESS FOR RENT DAMAGES-EVIDENCE TAKEN AT FORMER TRIAL.

1. Where, in an action of trespass for distraining plaintiff's goods for rent due from a third person for the premises upon which the goods were found, there is evidence that the landlord had agreed not to seize said goods for

such rent, it is proper to submit to the jury the question whether such agreement was made.

2. The measure of damages for such taking is the value of the goods at the time of the taking, with interest thereon to the time of the trial.

3. Where a witness is at the time of the trial confined to his bed by illness, his testimony, taken at a former trial of the same cause, may be read in evidence.

Appeal from court of common pleas, Luzerne county; Rice, Judge.

Action of trespass brought by J. J. Perrin against J. C. Wells and Charles Shovlin to recover damages for an alleged illegal taking and conversion of plaintiff's goods upon distress for rent under a landlord's warrant. Plaintiff leased certain premises from defendant Wells, and afterwards assigned his lease to one Harris, leaving his furniture on the premises. Afterwards Wells gave Harris a lease. Harris defaulted in his payment under such lease, and plaintiff's furniture was seized therefor. At the trial the testimony of plaintiff's wife, given at a former trial, was read upon a showing that she was confined to her bed by illness. Plaintiff's seventh point and the answer thereto were as follows: "(7) The amount the plaintiff would be entitled to recover would be the fair value of the goods at the time of their taking in July, 1889, by the defendants, with interest on that sum to date." Answer of the court: "That is a correct statement of the measure of damages, provided you find under the law and the testimony the plaintiff is entitled to recover." Plaintiff obtained judgment. Defendants appeal. Affirmed.

Harris B. Hamlin and Edmund G. Butler, for appellants. Q. A. Gates, for ap. pellee.

PER CURIAM. Aided by the able argument of the learned counsel for appellants, we have examined this record with special reference to the several assignments of error, and have reached the conclusion that there is nothing in either of them that would justify a reversal of the judgment. The case hinged on the alleged agreement referred to in that part of the learned judge's charge recited in the second specification, wherein he says: "This presents a very important question of fact to be decided by the jury. It is alleged by the plaintiff that there was an agreement between him and the defendant that, in case Harris did not pay the rent, the defendant would not take plaintiff's goods in satisfaction of the rent. The defendant denies that such an agreement was made, and upon the one side and the other certain circumstances have been called to your attention tending to corroborate the respective parties in their allegations upon this subject. You are to decide the question, was that agreement made or was it not?" The submission of this question was warranted by the evidence, and the verdict for plaintiff necessarily implies that the fact was found by the jury against the defendant. The second and other specifications, involving substantially the same question, are not sustained. It follows that there was no

error in submitting the question of damages to the jury; nor is there any error in the instructions as to the measure of damages. In the circumstances, there was no error in admitting in evidence the testimony of Mrs. Perrin, given at the previous trial. Neither of the specifications of error is sustained. Judgment affirmed.

HAWN v. PENNSYLVANIA CANAL CO. (Supreme Court of Pennsylvania. May 1, 1893.) WRIT-SERVICE-CORPORATION-VENUE.

Act March 17, 1856, § 1, (P. L. p. 388,) which provides that in actions against a corporation begun "in any county in which the property of said corporation was wholly or in part situated" the summons may, in certain contingencies, be served outside the county, does not apply where the corporation sued has no property in the county in which the action is brought on commencing the action, even though it may have had property therein at the time the cause of action arose.

Appeal from court of common pleas, Huntingdon county; A. O. Furst, Judge.

Action by Mary J. Hawn against the Pennsylvania Canal Company. The court set aside the service of the summons. Plaintiff appeals. Affirmed.

R. B. & H. W. Petrikin, for appellant. W. & J. D. Dorris, for appellee.

PER CURIAM.

The only assignment of error is the order of court setting aside service of the summons in this case. The act of March 17, 1856, § 1, (P. L. p. 388,) provides: "When any action is commenced by any person against any corporation in any county in which the property of said corporation was wholly or in part situated, it shall be lawful, if the president, treasurer, secretary, or chief clerk do not reside or cannot be found in such county, for the sheriff or other oth cer to whom any process may be directed, to serve the same on any manager or director in such county, and the service thereof shall be deemed sufficient; and, in case no director or manager can be found in such county, it shall be lawful for the sheriff or other officer to whom such process is directed to go into any county to serve the process aforesaid." It appears to be conceded that none of the officers named resided or could be found in Huntingdon county. Suit was brought to September term, 1892, and the alias summons was served June 18, 1892, “by handing to and leaving with Joseph N. Du Barry, a director of said defendant corporation, a true and attested copy of the within writ, and informing him of the contents of the same, *** at his office and the office of said corporation in the city and county of Philadelphia." In defendant's petition to set aside service of the summons it is averred, among other things, "that by the acts of June 2, 1870, and May 7, 1889, your petitioners were authorized to abandon all their canal property in said Huntingdon county, and that since September 24, 1889, they have had no property of any kind within said county of

Huntingdon." This fact does not appear to have been controverted on hearing of the rule to show cause, and upon a proper construction of the act we think it is conclusive against the validity of the service of the summons. Service outside the county in which the action is commenced is not authorized unless property of the "corporation was wholly or in part situated" in the county in which the suit was brought, at the time the action was commenced. It is not enough that property of the corporation was situated in the county at the time the cause of action arose. It must appear that it was situated there when the action was commenced. Order affirmed, with costs, to be paid by appellant.

GUYER et al. v. PORT et al. (Supreme Court of Pennsylvania. May 1, 1893.) EVIDENCE OF PARTNERSHIP.

Where, on an issue as to whether defendants were partners, one of them, who had managed the alleged partnership business, testified that he was to receive therefor five dollars per week and half the profits, and his testimony was corroborated by facts and circumstances in evidence, the jury properly found that defendants were partners.

Appeal from court of common pleas, Huntingdon county; A. O. Furst, Judge. Assumpsit by C. Guyer and others, as the Tyrone Bank, against Lewis E. Port

and George W. Friedly, alleged by plaintiff to be doing business as the Tyrone Meat Market. There was judgment for plaintiffs, and defendant Port appeals. Affirmed.

Geo. B. Orlady, for appellant. Stevens & Owens and John M. Bailey, for appellees.

PER CURIAM. This case appears to have been carefully and correctly tried, and an examination of the record dis closes no ground on which a reversal of the judgment would be warranted. The controlling question was whether the defendants were partners in the butchering business, managed chiefly by the defendant Friedly. This question was one of fact exclusively for the determination of the jury, under instructions of the court as to what was necessary to constitute a partnership. The evidence tending to prove that defendants were partners, and that the account kept in plaintiffs' bank was connected with the business of the firm, was such that it would have been surprising if the jury had found otherwise than they did. Friedly, one of the defendants, testified, in substance, that he was a partner in the business conducted in the name of the Tyrone Meat Market, and that he was to receive five dollars per week and half of the profits. As to the main fact of partnership, he was corroborated by facts and circumstances that were in evidence. The other defendant, Port, denied that there was any partnership between them. The question was fairly submitted to the jury, and their verdict necessarily implies a finding of the fact that defendants were partners. We v.26A.no.10-35

find nothing in either of the specifications of error that requires discussion. Neither of them is sustained. Judgment affirmed.

McCORMICK v. BOTTORF et al. (No. 379.) (Supreme Court of Pennsylvania. May 1,

1893.)

CONFESSION OF JUDGMENT BY MARRIED WOMAN. Under Act June 3, 1887, (P. L. 332,) which enables a married woman to acquire property, and to contract in relation to her separate estate, as if she were a feme sole, a married woman's note, with power to confess judg ment, for money borrowed for the benefit of her separate estate, is valid; and judgment by confession, entered thereon, binds her separate estate, though such judgment does not show the consideration and her direct liability on the face of the record. Abell v. Chaffee, 26 Atl. Rep. 364, 154 Pa. St. 256, followed.

Appeal from court of common pleas, Center county.

Judgment by confession was entered by Charles B. McCormick, to the use of J. Ñ. Krumrine, against Lydia Bettorf and J. G. Bottorf, on a judgment note given by defendants. Subsequently Lydia Bottorf filed her petition for a rule to show cause why such judgment should not be vacated and stricken off as to her. From a decree disjudgment, petitioner appeals. Affirmed. charging the rule, and refusing to open the

The following opinion was delivered in the lower court, (Furst, P. J.:)

"Rules were obtained to show cause

why the judgments should not be opene:1 or stricken from the record, etc., pro ut petitions. Depositions were taken on both sides. The facts, although some contradictions appear, are readily determined. We do not hesitate to state our findings of fact from the evidence as follows: (1) J. G. Bottorf, the husband of Lydia Bottorf, is without property or credit. (2) Lydia Bottorf is the owner of separate real and personal property. (3) Lydia Bottorf was indebted by mortgage on her separate real estate, and was in need of money to pay accrued interest. (4) She was also in debt for repairs to her separate estate, and for necessaries for herself and family, for the payment of which she was liable. (5) To obtain sufficient money to liquidate this indebtedness, she sought to borrow it from her friends, and she succeeded in getting two hundred and forty dollars from three separate persons, to secure which she gave the several judgment notes, upon which judgment was duly confessed in the court of common pleas, as above stated. (6) The money so obtained was applied to her own debts, and was obtained from the plaintiffs for the specified purposes set. forth in the fourth finding. It was in each case loaned to her upon the credit of her individual estate. (7) Her husband received none of the money, unless she gave it to him subsequently to liquidate her indebtedness. (8) The judgments and single bills do not show any coverture between the parties. Neither do the same show the nature of the indebtedness. (9) The facts herein found are so clearly proven by the weight of the evidence that a

verdict upon an issue in the case would not be sustained in opposition thereto.

"The only real question in these cases is, are the judgments fatally defective because they do not show the consideration and direct liability of Lydia Bottorf on the face of the record? The married persons' property act of 1887 has enlarged the power of married women far beyond her powers at common law, and considerably beyond the act of 1848. Certain of the provisions of this act were before the supreme court in the case of Investment Co. v. Roop, 132 Pa. St. 496, 19 Atl. Rep. 278. But upon a careful reading of the case it will appear that several important provisions of the act were not discussed in that case, simply because they were not involved or necessary to the decision. The case is authority for the proposition, which is important in the case under consideration, that, where the fact of coverture does not appear upon the record, a judgment confessed by a married woman to secure the repayment of money borrowed by her to aid her husband in his business, being unauthorized by the act of 1887, is void as to her, and, that fact being made to appear by testimony, the judg ment as to her will be stricken from the record. In the cases before us the fact of coverture does not appear in the record of the judgments as confessed. It, however, is shown by testimony that Lydia is the wife of J. G. Bottorf. The testimony further shows that the money was borrowed by her for the very purposes for which she may bind herself and her estate or business by her contracts. The act of 1887 authorizes her in these respects to contract in her own name as a feme sole. Hence her contracts are as the contracts of a person sui juris. Wherever the act of assembly permits her to contract, she may do so independent of her husband, or eren against bis will. If suit be brought on such contracts, and the husband be joined as a party, we are of the opinion the husband could invoke the powers of the court to strike his name as a party from the record. In Roop's Case, supra, Chief Justice Paxson places the decision of the court upon the fact that, as the judg ment was confessed by a married woman, and it was not pretended that it was done in the management of her business, or for the benefit of her separate estate, or for necessaries, but, upon the contrary, it was shown that the judgment was given as security for her husband,-a thing prohibited by the act,-that, therefore, the judgment was void. If, however, it had been shown that the judgment was given for any of the purposes which the act of 1887 authorizes her to bind herself independent of cr against the will of her husband, we think the case is authority for the proposition that the fact of coverture not appearing in the record, and the nature of the debt not appearing also in the record, would not have avoided the judgment. If coverture is shown by parol testimony, then testimony may also be adduced to show that the contract upon which the judgment rests for its foundation and validity is a valid contract, which a feme covert may make, and which

is binding upon her and her estate. To hold that such evidence may not be shown would establish a very severe system of technicality, which the legislature of 1887 sought by more than one act to abolish or suppress. The consequences of such a construction of the act would only be productive of evil, and enable a married woman to cheat and defraud her honest creditors.

"It is not the disposition of courts to decide cases upon mere technicalities. which lead to manifest injustice. Unless bound by an iron rule or principle, which cannot be departed from, it is the duty. and also the desire, of the courts of our state to so administer the law as to do equal and exact justice between suitors. Courts will not lend a ready ear to a cause that upon its own face is without right or equity, or which rests upon a breach of faith. The practice in the lower courts has not been uniform upon this question, some of the judges holding that the judgment of a married woman may be impeached by parol testimony dehors the record, but that its validity cannot be shown by like testimony; others holding the opposite view. Stouffer v. Thomas. 10 Pa. Co. Ct. R. 421; Glassmire v. Neill, Id. 418; and McIntire v. Bimber, 9 Pa. Co. Ct. R. 465,-are examples of these several views. An examination of the first two cases will show that full effect is not given to the basis of the decision of the supreme court in the Roop Case, supra. That case clearly holds the doctrine that the judg ment is void where the evidence taken to impeach the judgment or support it does not bring the case within the provisions of the act fixing liability. It can no longer be said that the power of a feme covert to contract is exceptional. The act of 1887 goes very far in enlarging her powers. A feme covert cannot indorse for her husband, or become his surety. But where she has a separate estate she may make any and all contracts that a person sui juris can make. She can make her contracts without the consent of her husband. She can engage in business. She can buy and sell subject only, in case of sale, to the restriction that her husband must join; and this no doubt for the reason to bar his estate by the curtesy. She is liable for necessaries for herself and family. In fact, with a slight restriction, her domain of business is nearly as wide as that of her husband. She can make any kind of contract, and give single bills, with warrant of attorney to confess judgment, wherever she has power to act. Why, then, her judgment, given by her in her own name for a debt for which she is absolutely liable, is not valid because the record does not show the exact character of the transaction in which it was given, we are at a loss to understand. Why such a judgment, when impeached by facts dehors the record, cannot be supported in the same manner, we cannot comprehend, unless it is founded in fear that a feme covert will soon be recognized as the equal of her husband,-an equality she has ever held by nature, and which should not be denied her by the law. The fetters of the common law are gradually being

BELL V. MCCLOSKEY.

(Supreme Court of Pennsylvania. May 1, 1893.)

H. H. Harshberger and John G. Love, for appellant. J. C. Meyer and Orvis, Bower & Orvis, for appellee.

PER CURIAM. This appeal is from the order of court refusing to open the judgment as to the defendant Lydia Bottorf, wife of the other defendant, and let her in to a defense. The facts found by the learned judge are specifically stated in his opinion. The fourth to the seventh of these, inclusive, are the subjects of complaint in the first four specifications of error, respectively. An examination of the testimony shows that the findings complained of were fully warranted, and said specifications are therefore not sustained. The conclusions drawn by the learned judge from the evidence, etc., complained of in the fifth and sixth specifications, are not erroneous. The questions of law involved in the seventh and eighth specifications have been considered and definitely settled in several recent decisions construing "the married persons' property act" of June 3, 1887, among which are Association v. Fritz, 152 Pa. St. 224, 25 Atl. Rep. 558; Milligan v. Phipps, (Pa. Sup.) 25 Atl. Rep. 1121; Abell v. Chaffee, 154 Pa. St. 256, 26 Atl. Rep. 364; Adams v. Grey, 154 Pa. St. 258, 26 Atl. Rep. 423. The questions of law now before us are ruled by these cases, and further discussion of them is therefore upnecessary. Neither of the specifications of error is sustained. The order of court, refusing to open the judgment and let defendant in to a defense, is affirmed, and appeal dismissed, with costs to be paid by appellant.

MCCORMICK v. BOTTORF et al. (No. 380.) (Supreme Court of Pennsylvania. May 1, 1893.) Appeal from court of common pleas, Center county; A. O. Furst, Judge.

Judgment by confession was entered by Charles B. McCormick, to the use of J. N. Krumrine, against Lydia Bottorf and J. G. Bottorf, on a judg ment note given by defendants. Subsequently Lydia Bottorf filed her petition for a rule to show cause why such judgment should not be vacated and stricken off as to her. From a decree discharging the rule, and refusing to open the judgment, petitioner appeals. Affirmed.

H. H. Harshberger and John G. Love, for appellant. J. C. Meyer, John H. Orvis, C. M. Bower, and Ellis L. Orvis, for appellee.

PER CURIAM. This appeal presents the same questions that have just been considered and disposed of in another case between the same parties. (No. 379, Jan. Term, 1893,) 26 Atl. Rep. 545. For reasons briefly given in opinion just filed in that case, the order refusing to open the judgment in this case and let the defendant Lydia Bottorf in to a defense is affirmed, and appeal dismissed, with costs to be paid by appellant.

SION.

The lessee of a dairy farm, who did not live thereon, sold his cows, fixtures, and equipments to an employe whom he had placed in charge of the farm; and a few months later, the employe being unable to pay, the property was resold to the lessee. Held that, if the jury is satisfied that the resale was honest, and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and that the lessee assumed such control of the property as reasonably indicated a change of ownership, the result is valid as against the employe's creditors, though the lessee continued him in charge of the farm and of the stock.

Appeal from court of common pleas, Clearfield county: David L. Krebs, Judge.

Trespass by S. H. W. Bell against Edgar L. McCloskey, late sheriff of Clearfield county, to recover damages for the sale of 20 milch cows as the property of John Price. There was a verdict in plaintiff's favor, and from the judgment thereon defendant appeals. Affirmed.

In the spring of 1891 the plaintiff, S. H. W. Bell, leased a farm near Du Bois, known as the "Rockey Farm," and paid $1,000 for a lot of cows, fixtures, and equipments, started a milk dairy, and hired John Price to take charge of it for him. In June he sold a half interest to John Price, and it was conducted in partnership till July 20th, when the other half was sold to Price, he giving notes for the entire purchase money, payable $250 in five months, $275 in seven months, and balance at $25 per month. Bell never lived on the farm, but employed Price, who was a practical dairyman, to look after the stock, and sell the milk; and he continued to reside there from early in the spring prior to his having any interest in the dairy, in charge of it, until long after the sale. On September 17th it was apparent to both Bell and Price that Price could not pay for the stock, and it was resold to Bell for the same consideration that Price had agreed to pay, and the notes were surrendered up. Bell lived in the town of Du Bois, and could not take personal charge of the property, and it was on the same day leased or bailed to Price at the sum of $15 per month for eight months, and he was permitted to remain on the premises, that were especially fitted up for dairy purposes. That all of those transactions were carried on in the utmost good faith by both parties was found by the jury. On the 3d of September, while Price still owned the property, he gave a judgment note to Charles Schwem, which was entered on the 25th of same month, and the dairy property at once levied on, and sold as the property of Price. Bell gave notice both before and at the sale that he was the owner of the property, and finally after the sale brought this suit. At the time of the resale to Bell, the parties met in the presence of two reputable witnesses, and transferred the possession on the same day. The lease of the farm had originally