outward cargo, and chartered his vessel through to observe such stipulation-if he did so fail. them.

With regard to the actual damage suffered by the loss of the outward business libellant claimed that it was only about $81, while respondents claimed that it amounted to about $114, besides a possible loss of $40 to $50 despatch money, and the incidental advantage of securing a new client.

Walter George Smith and Francis Rawle, for libellant.

The first two items of set-off are admitted, but the third is but an incident of employment, and is included in the penalty of fifty guineas for breach of contract, if that is allowed.

The fourth item of set-off is a penalty, and cannot be regarded as liquidated damages.

12 Am. Law Rev., 287, citing— Horner v. Flintoff, 9 M. & W. 678. Astley v. Welden, 2 B. & P. 346. Where a sum is to be paid on breach of a contract, when it is possible to measure the damage, it will be regarded as a penalty.

Kemble v. Farren, 6 Bing. 141.

And when the contract contains a variety of stipulations, and one large sum is stated to be paid in breach of performance of any, that is a penalty.

Per COLERIDGE, C. J., in Magee v. Lavell, L. R. 9
C. P. 107.

The only questions in the case, therefore, are: Did libellant fail in this respect? And if he did, what sum should be paid as damages? That he did so fail I have no doubt. Having employed another, the burden is on him to show that respondents declined the service. The witness on whom he relies to prove this-(though interested to help him out, having been the runner, or drummer, of another firm, and having succeeded in capturing the business)—very distinctly says that he secured the employment immediately upon the vessel's arrival, without consultation with respondents. When the respondents' office was subsequently visited it was on account of other business. It is quite clear that they were afforded no opportunity to furnish the outward cargo. The master indeed seems entirely to have overlooked his obligation in this respect; and the witness (who secured the business for his tion. No change had occurred in the respondemployers), says he was unaware of the obligaents' firm that justified the master's course. They could, and we must suppose would, have performed the service, if employed to do so. What compensation should they have for the loss of this employment? The contract says fifty guineasdeducted from the freight. The libellant's position, that this is a "penalty," is unsound. The precise extent of injury likely to ensue from loss of such employment is difficult to ascertain; and the probable amount, looking at incidental disadvantages, is not very greatly in excess of the sum named. The parties have expressly stated it to be the amount which shall be paid, and have pointed out the manner of securing its payment. It is unnecessary to enter upon the learning respecting liquidated damages." Where the sum named is intelligently and unequivocally stated to be the ascertained or liquidated damages for the breach of a contract, and the language May 19, 1882. THE COURT. The liability is not qualified or rendered doubtful by other for freight is not denied, but the respondents expressions contained in the paper-and especlaim a set-off, first, of £4. 8s. 8d., consignee's cially where the actual extent of damage is diffiinward commission; second, $148.70, vessel's cult of ascertainment, and the sum named is not bills paid; third, $75, consignee's outward com- very greatly in excess of the probable injury, the missions, and, fourth, $250, damages for viola-amount will be treated as "liquidated damages." tions of contract-respecting employment at New Such are the circumstances here; and the fifty York. The first and second items are not dis-guineas, in addition to the two undisputed sums puted. The third cannot be allowed. These before referred to, must be deducted from the commissions would have accrued to respondents freight. For the balance thus ascertained, less if they had been employed in New York, and again become consignees of the cargo. The provision, in effect, is that the consignees, to whom the vessel is to be addressed, inward and outward, shall be paid two and a half per cent. on amount of freight. The commissions involved were an incident of the employment stipulated for, in New York; and the loss is included in the consequences of libellant's failure

Lea v. Whitaker, L. R. 8 C. P. 70.
Davies v. Penton, 6 B. & C. 216.
Lowe v. Peers, 4 Burr. 2225.
Ex parte Capper, 4 Ch. Div. 724.
Atkyns v. Kinnier, 4 Exch. 776.
Shute v. Taylor, 5 Metcalf, 61.
Dennis v. Cummins, 3 John. Ca. 297.
Spencer v. Tilden, 5 Cow. 144.
Bagley v. Peddie, 5 Sandf. 192.
Burr v. Todd, 41 Penn. 206.
Shrieve v. Brereton, 51 Id. 185.
Bigony v. Tyson, 75 Id. 157.
Charles Gibbons, Jr., contra.

respondents' costs since filing his answer, the
libellant will receive a decree, with costs to the
date of filing answer. The respondent having
tendered payment of the amount now found to
be due, with costs at the time of making answer,
should not only not be charged with costs since
that time, but should be reimbursed what he has
necessarily expended in making defence.
Opinion by BUTLER, D. J.

INDEX

ALL THE CASES REPORTED IN THIS VOLUME.

BY

RICHARD C. DALE, Esq.

ACTS OF ASSEMBLY-Continued.

Railroad. 231.

Insurance.

530.

Insurance. 125.
Mechanic's Lien. 357.
Justice of Peace. 264.
Attachment. 271, 339.
Witnesses. 205, 434.
Orphans' Court. 107.
Sewers. 314.
Streets. 446.
Corporations. 309.
Execution. 197.
Elections. 393.
Roads. 487.
Replevin. 312.
Married Women.
Evidence. 335.
Municipal Claims. 458.
Notes. 163.

Municipal Claims.
Corporations. 26.

Taxation. 89.

Oaths. 178.

Corporation. 255.

Legislature. 241.
Referee. 362.

565.

458.

Elections. 162, 278.
Errors and Appeals. 289.
Orphans' Court.

Partnership. 132.

Railroad. 231.

354.

AFFIDAVIT OF DEFENCE LAW-Continued.
private Act of Assembly authorizing such a guarantee.
Timlow v. Philadelphia and Reading R. R. Co., 218.

A guarantee by one railroad company of the bonds
of another is not such a copy as entitles the plaintiff
to judgment. Coxe v. Camden and Atlantic R. R.
Co., 451.

Upon the hearing of a rule for judgment for want of
a sufficient affidavit of defence, the Court will not take
judicial notice of a difference between the local and a
foreign law. (C. P.) Pfaelzer v. Drexel, 480.

Insufficiency in a copy filed cannot be supplied by
an averment. The practical test is, Would the book
entries put in evidence before a jury without more evi-
dence entitle the plaintiff to recover! (C. P.) Love
v. Building Association, 303.

A copy of book entries filed must prima facie charge
the defendant, and a defect in this respect cannot be
cured by looking to the affidavit. (C. P.) Farrell v.
Baxter, 400.

Book entries charging goods as per contract are not
within the affidavit of defence Act. (C. P.) Jones v.
Pennypacker, 465.

Where suit is brought upon a note made in another
State, and an averment is made in the statement of
claim filed, under the rules of practice in Berks County,
that by the law of that State the plaintiff is entitled to
recover more than six per cent. interest, the burden is
upon the defendant to deny that fact by his affidavit
of defence. Smith v. Hiester, 353.

A recognizance entered into before the Court of
Quarter Sessions to support the family of the recog

Justice of the Peace. 63, 269.nizor, is an instrument in writing for the payment of

ACTS OF CONGRESS.

Streets. 465.

Pilotage. 564.

1875, April 3.
ADMIRALTY. A proceeding in rem and a pro-
ceeding in personam cannot be joined in the same libel.
(U. S. C. C.) The Steam Tug Alida, 515.

The District Court of the United States has a general
jurisdiction, by virtue of which it may enforce, in its
discretion, a decree of another Federal Court in Ad
miralty, though no letters rogatory have been granted
from the latter Court. (U. S. D. C.) Penna. R. R. Co.
v. Gilhooley, 96.

See PILOTAGE.

ADOPTION. Under what circumstances a peri-
tion to vacate a decree of adoption will be allowed.
(C. P.) In re Daniel Blair, Jr., 239.

AFFIDAVIT OF DEFENCE LAW. What
a sufficient copy. A decree in equity by another
Court of Common Pleas for the payment of money is a
sufficient copy, and judgment may be obtained upon
it. (C. P.) Freeman v. Huntzinger, 191.

A real estate broker's commission is not a proper
charge for a book of original entry. (C. P.) Sylves-
ter v. Thompson, 203.

In a suit against one corporation upon a guarantee |
of the bonds of another, Courts are not bound upon
the hearing of a rule for judgment for want of a suf-
ficient affidavit of defence, to take judicial notice of a

money within the affidavit of defence law. Huber v.
Commonwealth, 496.

Affidavit, when sufficient. In an action to re-
cover the price of a reed-making machine, the defend-
ant in his affidavit of defence set up that the machine
when shown him was in a dark room, and he was un-
able to examine it thoroughly, but was obliged to rely
on the representations of the plaintiff's salesman,
which subsequently proved to be untrue in many
specified particulars, and that the machine had never
been delivered; held, that the affidavit was sufficient.
Scheppers v. Stewart, 106.

An affidavit of defence setting forth latent defects in
goods purchased is insufficient. (C. P.) Connett v.
Brooks, 283.

One who, in order to avoid liability upon an instru-
ment signed by him, sets up in his affidavit of defence
that his signature to the instrument was obtained by
undue influence, must set forth in detail the facts
showing such undue influence. Mathews v. Sharp, 319.

An affidavit of defence which only sets out that
notes were obtained by means of false representations,
is not sufficient to prevent judgment. Third National
Bank v. McCann, 480.

In a suit upon a recognizance for the support of his
family, an affidavit setting up that the recognizor has
returned to his family, and that he is contributing all
his earnings to their support, whereby they are rea-
sonably provided for, is insufficient. Huber v. Com-
monwealth, 496.

AGENT. Powers of insurance agent. See IN-
SURANCE. Pottsville Ins. Co. v. Miunequa Co., 507.
Lien of factor, and his right to commissions. See
FACTORS. Cabeen v. Shoener, 448.

Contract between manufacturer and merchant con-
strued to be one of sale and not of agency. See SALE.
Seyfert v. Herron, 72.

See PRINCIPAL AND AGENT.
AGREEMENT. See CONTRACT.

ALIMONY. A wife does not lose her right to ARSON. See CRIMINAL LAW.
the payment of alimony ordered by a Pennsylvania
Court, by the fact that the husband has subsequently
obtained a divorce in another State which has no jur-
isdiction over the person of the wife. (Q. S.) Phila-
delphia v. Wetherby, 154.

AMENDMENT. An amendment of the names
of the partners in a writ of foreign attachment will be
allowed after the appointment of a receiver for the
debtor firm. (C. P.) Lucas v. Diggens, 77.

After a trial upon the merits an amendment of the
name of a corporation defendant may be allowed.
(C. P.) Bohmann v. Pittsburgh, etc., R. R. Co., 340.
Under what circumstances an amendment to a bill
in equity will not be allowed after the taking of testi-
mony. (C. P.) O'Malley v. O'Malley, 39.
ANSWER. Effect of averments in equity. See
EQUITY. Burke's Appeal, 501.

APPEALS. See ERRORS AND APPEALS.

Appeal from Justice of Peace. See JUSTICE OF

PEACE.

ARBITRATION. A mere mistake by arbitrators
is insufficient to set aside an award under a submis-
sion without exception or appeal. Corruption or mis-
conduct must be alleged and proved. Liverpool, etc.,
Co. v. Goehring, 280.

Where there is no evidence of corruption or mis-
conduct it is error for the Court to leave it to the jury
to say whether under all the evidence, there was mis-
conduct or corruption. Ib.

Where the parties to a case agree to submit all
matters in dispute between them to arbitrators, whose
decision is to be equivalent in effect to a judgment of
the Court, and subsequently the arbitrators file a de-
cision whereby they find a sum certain to be due from
defendant to plaintiff, and to which they append a
clause stating that an admitted claim of defendant
against plaintiff had not been taken into account by
them because in their judgment from its nature
not properly included in their settlement of the ac-
count between the parties, and thereupou execution
issues: held, that the Court cannot subsequently
order that the defendant be credited upon the execu-
tion with the amount of his admitted claim against
the plaintiff, which the arbitrators had refused to take
into account in rendering their decision. Penna.
Tack Works r. Sowers, 83.

A judgment upon an appeal from an award of arbi
trators under the compulsory arbitration Act entered
within five years from the date of the award continues
the lien thereof for five years from the date of its
entry, entirely irrespective of the period when the
award was filed and the lien thereof attached. Appeal
of First Nat. Bank of Northumberland, 526.

Where laymen stipulate that an award shall carry
costs, arbitrators' fees are included. (C. P.) Lindsay
v. McConnell, 173.

ARREST. A married woman cannot be arrested
upon a capias ad respondendum where the cause of
action, whether it be a contract or a tort, accrued dur-
ing her coverture. Commonwealth ex rel. McDowell v.
Keeper of County Prison, 341.

A defendant who has fraudulently converted to his
own use moneys and stocks left with him for invest-
ment does not come within the Act of 1842, the rela-
tions between the parties not being contractual.
P.) Emerson v. Dow, 270.

(C.

ASSIGNMENTS. An assignment of the interest
of a partner in a firm hereafter to be formed, as colla-
teral for a loan, cannot be enforced by the lender
against general creditors in a distribution of the estate
in the Orphans' Court. (O. C.) Hulse's Estate, 499.
Rights of assignee of insurance policy. See INSUR-
ANCE. Ins. Co. v. Hagar, 281.

Assignment for the benefit of creditors. An
assignee for the benefit of creditors, who has under
order of the Court sold real estate conveyed to him by
the assignor and made use of the funds derived there-
from for his individual profit, is chargeable with in-
terest on the funds from the time of the confirmation
of the sale. Conrad's Appeal, 521.

ASSUMPSIT. Where one bona fide, and for a
valuable consideration, receives money obtained from
another by fraudulent misrepresentations, it cannot
be recovered from such recipient by the defrauded
party. Stedman v. Carstairs, 102.

When a bank has paid a check fraudulently ob-
tained from a depositor to a bona fide holder for value
the depositor has no right of action against the recip-
ient of the money.

Ib.

Water rent paid under protest under a threat that
the privilege of using the pipes will be withdrawn
cannot be recovered as paid under duress. (C. P.)
Bray v. Philadelphia, 202.

ATTACHMENT, EXECUTION. See EXE-

CUTION.

ATTACHMENT, FOREIGN. See FOREIGN

ATTACHMENT.

See

ATTACHMENT FOR CONTEMPT.
EQUITY PRACTICE. (C. P.) Robb v. Pepper, 497.
ATTACHMENT UNDER THE ACT OF
1869. Debts not due and presently demandable can
not be made the basis of an attachment under the Act
of 1869. (C. P.) Coaks v. White, 271.

Judgment for want of an appearance may be entered
on a return of nihil habet at the second term after
issuing of the writ of attachment. (C. P.) Artman
v. Adams, 339.

ATTORNEY AND CLIENT. The general
rule that confidential communications from client to
attorney are privileged, includes the custody and pro-
duction of papers as well as oral communications, and
applies as well to criminal as to civil cases. (Q. S.)
Commonwealth v. Moyer, 34.

Hence an attorney who has been entrusted by his
client with a paper alleged to have been forged can-
not be compelled to produce the same before the grand
jury. Ib.

The counsel for the plaintiff in a bill filed to settle a
partnership is not entitled to fees out of the fund. (C.
P.) Lennig v. Lennig, 18.

Allowance for counsel fees out of fund, when allowed
upon bill to establish a charity. See EQUITY. Fideli y
Company's Appeal, 104.

What are reasonable counsel fees for conducting
foreclosure of mortgage. (C. P.) Terry v. Slemmer,

155.

AUDITOR. An auditor appointed to distribute
a fund produced by a sheriff's sale, having reported a
table of distribution, and also an alternative table, de-
pendent upon the reversal by the Supreme Court of a
certain judgment, the Court below entered a final de-
cree of distribution, in accordance with the report of
the auditor: held, that the confirmation of the re-
port should have been suspended to await the result
of the writ of error in this Court. John F. Smith's

Where an action can be brought in form ex delicto, |
or on an implied contract, the plaintiff cannot by his
election to bring it in form ex delicto deprive the de-
fendant of the privilege of freedom from arrest given
by the Act of 1842. (C. P.) Cornog v. Delany, 575. | Appeal, 378.