opportunity-whatever it may be called-how- The question of the Statute of Limitations does not arise. Under the circumstances found by the Master, already quoted, the statute did not begin to run until the filing of the account in March, 1885. Decrees affirmed at cost of appellants. July '91, 8. H. C. O. the defendants took possession of him, but refused to repay the money. The affidavit of defence denied any warranty as set forth in the statement, but did not deny the agreement by which the horse was submitted to the second veterinary surgeon, or that the defendants had taken possession of the horse: Held, that the action of the defendants was a com pliance with the plaintiff's demand for a rescission of the contract, and that they were liable to refund the price paid for the horse. The plaintiff also claimed the cost of the veterinary examinations, and other expenses incurred while the horse was in his possession. It appeared from the statement that the agreement was that the expense of the second examination should be shared equally by the parties: Held, that the plaintiff could only recover half the cost of the second examination, and that there was no liability to pay for the keep of the horse, or other expenses incurred. Appeal of Joseph A. Wenderoth, Joseph H. Mundy, and Henry C. Johnson, co-partners, trading as Wenderoth, Mundy & Johnson, auctioneers, and Philadelphia Tattersall and John Reamer, defendants, from the judgment of the Common Pleas No. 3, of Philadelphia County, in an action of assumpsit brought by Henry C. Terry. Plaintiff's statement was substantially as follows: " Plaintiff, being in need of a saddle-horse, observed in the newspapers of January 28, 1891, or shortly prior thereto, that on the date mentioned, at 10 o'clock A.M., the defendant, Philadelphia Tattersall, at its place of business, Nos. January 20, 1892. 2040-54 Market Street, in the city and county of Philadelphia, would, through defendants Wenderoth, Mundy & Johnson, auctioneers, expose to Affidavit of auction sale,' among other horses selected by John Reamer, the remaining defendant, a certain animal described in the printed catalogue of said sale as follows, to wit: Terry v. Wenderoth et al. Statement of claim Where a statement of claim contains averments sufficient to sustain the action, and these averments are not denied in the affidavit of defence, it is immaterial that other averments not of the essence of the undenied cause of action are traversed in the affidavit of defence. Such averments may be treated as surplusage, and judgment be entered for want of a sufficient affidavit of defence. To mingle such immaterial averments with the statement of the real cause of action is a practice not to be commended. 6 Dark-gray saddle horse, five years old. Sired by Denmark. First dam, Glencoe Mon. Weight, 1050 pounds. He is as handsome a horse as any gentleman wishes to see. He is powerful and strong made, and can carry a man that weighs 300 pounds. He goes all the Kentucky gaits under the saddle, and is broke to harness to drive. T. having purchased a horse which he found to be unsound, after examination by a veterinary surgeon, made demand upon the vendors to repay the money "Plaintiff procured Reamer to be asked prior and take the horse back. Upon their refusal so to do, to the sale whether the horse Glory was to be he brought an action of assumpsit against them, sold as warranted sound, and Reamer thereupon averring in his statement that he had bought the warranted to plaintiff the horse to be sound in horse upon a warranty that it was sound, and with every way and urged plaintiff to buy him. Plainthe understanding that if it were not so the money should be refunded. He further averred that when tiff, not knowing, then or now, whether by the the defendants refused to refund the money he was catalogue of sale which described the horse Glory, about to sell the horse at auction, when it was pro-inter alia, as selected by John Reamer,' it was posed by the defendants that the horse should be meant to allege that Reamer was the owner of the examined by another veterinary surgeon, and that if he pronounced him unsound, the money should be horse, applied to defendant Wenderoth, of the repaid, and the horse returned; that this was done, firm of Wenderoth, Mundy & Johnson, aucand when the horse was pronounced to be unsound tioneers, who at first warranted privately to plain tiff and afterward publicly to all bidders, as presi- and after allowing time for cure of any "shipdent of defendant corporation, Philadelphia Tat- ping fever" or ordinary cold, that thereafter the tersall, and as a member of the firm of Wenderoth, wind of the horse should be thoroughly tested by Mundy & Johnson, auctioneers, who were crying Dr. Huidekoper. If said tests showed the horse the said sale, that the horse Glory was repre- not a "roarer," he should be retained by plainsented and warranted to be sound and all right tiff as his own, and defendants would agree to in every way,' and that if the horse was not pay one-half the expense of placing the horse 'sound and all right in every way, the money paid at the hospital, and the tests thereafter to follow at sale would be promptly refunded the pur- by Dr. Huidekoper; if the horse by such tests chaser.' Relying absolutely upon the warranty proved to be a "roarer" he would forthwith be and representations of all of the defendants, plain-received back by defendants and the money paid tiff became and was the highest bidder at the by plaintiff immediately be returned with the exsale, and bought the horse Glory for the price or penses incurred by plaintiff by reason of such sum of $525, which sum he paid upon the day unsoundness. following the sale to defendant Philadelphia Tattersall." Plaintiff accepted this proposal of the defendants, and ordered the horse to be delivered to Dr. Huidekoper, who some days later made a report to the effect that the horse was unsound in his wind, and had been so at the time of purchase. Four days later the horse Glory was removed from Dr. Huidekoper's hands by the defendants, who still had possession of him when this action was brought. Plaintiff employed Dr. John W. Gadsden, a veterinary surgeon, to examine the horse the next day after the said sale, who reported the horse Glory sound, except as to his wind, which it was impossible to test, owing to the inclement weather. The second day after the sale, the horse was de livered to the plaintiff; who on the same day discovered that he exhibited evidence of un- The plaintiff in his statement claimed in soundness in wind; the unsoundness being other- addition to the cost of the horse, $525, sundry wise known as "roaring." Plaintiff immedi- expenses incurred in his keep and the charges of ately notified defendants in writing that he would the veterinary surgeons, amounting to $56.40, have the horse tested for roaring by Dr. Gads-making the whole claim $581.40. den, which was done; and Dr. Gadsden gave the following certificate : PHILADELPHIA, January 31, 1891. No. 1334.-This is to certify, that I have this day examined a dark-gray horse, rising six years, at the request of Henry C. Terry, Esq., and find him unsound in his wind; cannot detect any other unsoundness in J. W. GADSDEN, the said horse. Member of the Royal College Veterinary Surgeons, Eng. Plaintiff immediately exhibited this certificate to the defendants and made demand upon them then and there to receive back the horse Glory, and to repay to him the sum paid therefor. This defendants refused to do; whereupon, the plaintiff sent the horse to Nichols's Bazaar, and ordered him to be sold at public sale, after due advertisement, "for account of whom it may concern," and notified the defendants of this action. Prior to the day fixed by Nichols for the sale of the horse Glory, plaintiff was called upon by defendant Wenderoth, who alleged and represented to plaintiff that possibly the horse had been at the time of sale and when tests were made as to his wind suffering from what is known as "shipping fever," and that the roaring had been caused by the fever or from an ordinary cold; and proposed on behalf of all the defendants, that the sale at the bazaar of D. P. S. Nichols should be stayed, and that Dr. Rush Shippen Huidekoper, an eminent veterinarian, should take the horse into his charge at his private stable or hospital, No. 1809 Sansom Street; To this statement Joseph A. Wenderoth, on behalf of himself and the other defendants, filed an affidavit of defence to the effect that the horse belonged to John Reamer, and that the other defendants acted in the matter merely as the auctioneers, having no interest in it, saving in their commissions; that no warranty that the the sale it was stated that the sale was made horse was sound was ever given, except that at subject to a veterinary examination, and that if upon such an examination the horse was found unsound, the sale would be cancelled, but if he was found sound the purchaser should forthwith pay for the horse, and upon such payment the warranty would cease; that such veterinary examination was made, the horse pronounced sound, and payment made; that there never was any agreement that if the horse was not sound in every way the money should be refunded. The Court made absolute a rule for judgment for want of a sufficient affidavit of defence. Whereupon the defendants took this appeal, assigning for error this action of the Court. John G. Johnson (Frank P. Prichard with him), for appellants, cited Church v. Jones, 25 WEEKLY NOTES, 396. Charles F. Warwick (Edward D. Wadsworth and Owen B. Jenkins with him), for appellee. March 14, 1892. HEYDRICK, J. The plaintiff avers in his statement that he purchased a horse from the defendants, paying therefor the Common Pleas. C. P. No. 3. January 2, 1892. City of Philadelphia to use of McDonald v. Cox. Municipal claims-Discharged by sheriff's sale— A sheriff's sale made after work done for municipal improvements and before the claim is filed discharges the lien of the claim. In this case a municipal claim had been filed, and subsequently, in order to determine the validity of the lien, the following case stated was agreed to: "On December 19, 1890, the plaintiff, Joseph McDonald, did certain footway paving in front of premises described in the lien. On February sum of five hundred and twenty-five dollars; that he immediately afterwards exhibited to defendants a veterinary surgeon's certificate that the horse was unsound; that in consequence of such unsoundness he demanded a rescission of the contract and return of the price paid for him, which was refused by the defendants; that thereupon he ordered the horse to be sold at auction for account of whom it might concern, of which he gave notice to the defendants; that before such sale could be made the defendants proposed to him that he should withdraw the horse from sale, and that Dr. Rush Shippen Huidekoper, an eminent veterinarian, should take the horse into his charge at his private stable or hospital, and thoroughly test him," and "that if said tests showed the horse not a 'roarer,' he should be retained by the plaintiff as his own, and that defendants would agree to pay one-half of the expenses of placing said horse at the said hospital, and the tests thereafter to follow by said 1, 1891, Frank Cox purchased at sheriff's sale Huidekoper; that Dr. Huidekoper upon making the said premises. The proceeds from this sale the tests pronounced the horse a roarer,' of which were paid into the sheriff's hands were which notice was given to the defendants, and more than enough to have satisfied all claims that four days thereafter the defendants sent for against the said premises, including the claim for the horse and took him away from the hospital which this lien is filed. On March 10, 1891, the and still have him;" none of which averments sheriff paid to the former owner of said premises were denied by the affidavit of defence. The the balance in his hands, which balance was more conduct of the defendants in sending for and than enough to pay this claim. The plaintiff to retaining the horse under the circumstances de-use did the work under a general contract with tailed is not consistent with any other theory than the city of Philadelphia, under the provisions that of a compliance pro tanto with the plaintiff's of an ordinance of the select and common demand for a rescission of the contract, and when, councils of said city, approved February 11, in compliance with that demand, the defendants 1889. The bill upon which this lien is based took the horse back, they became liable to refund the price paid for him, and the further sums agreed to be paid on account of the expense of the tests made by Dr. Huidekoper. It is immaterial that other averments not of the essence of the undenied cause of action were traversed with great emphasis; such averments may be treated as surplusage. But the mingling of a count upon a warranty with the statement of real cause of action is not to be commended. The plaintiff was not entitled to recover for the keep of the horse, or for the examination made by Dr. Gadsden. The several sums charged on these accounts and one-half of Dr. Huidekoper's bill must be stricken out, leaving the judgment to stand for five hundred and forty-five dollars. As so modified, the judgment is affirmed. S. H. T. was not delivered to the plaintiff to use in ac- William W. Smithers, for plaintiff. A judicial sale discharges liens filed and the right to file liens as well. Allegheny City's Appeal, 41 Pa. 60. Young v. Elliott, 2 Phila. 352. Shaffer v. Greer, 87 Pa. 370. Eldridge v. Madden, 7 WEEKLY NOTES, 226. Eo die. Judgment for defendant on stated. case remained with his wife until Saturday morning, when he left for Cuba, where he obtained employment. He was a cooper. Robert Agnew never returned to the United States, but died in Cuba. After he went to Cuba his wife went to live with her relatives, and remained with them until after the death of her husband, when, by invitation of his father, she went with her chil Cohabitation Legitimating offspring by subse-dren to live in his family. There she remained quent marriage-Act of May 14, 1857-Finding of fact by Auditing Judge. The finding of fact by an Auditing Judge is conclusive, unless it can be shown that there was no competent evidence to support it. Where a marriage contract is established by direct proof, reputation upon the subject becomes of little importance; and in such case the cohabitation spoken of by the Act of May 14, 1857, legitimating prior-born children, need not be either of a continued or continuous character. Sur exceptions to adjudication. David Agnew died October 6, 1887, leaving a will duly proved October 17, 1887, by which he bequeathed to his wife all his personal property, and devised to her, in fee, his house and lot No. 2206 Brown Street. As to all the other real estate he died intestate, leaving to survive him a widow, Eleanor E. Agnew, and collateral heirs or kindred, viz: a brother, since deceased; two nephews and a grand-niece. At the audit, before HANNA, P. J., one James W. Agnew claimed to be a son of Robert Agnew, a deceased brother of testator, and therefore a nephew of testator and one of his heirs and next of kin. His claim was denied and disputed by those who were conceded to be the next of kin of testator, who alleged that he was born out of lawful wedlock, and that his parents were never lawfully joined in marriage, and never cohabited as husband and wife. Robert Agnew died in Cuba in 1845; the claimant was born February 20, 1843; and the marriage of his mother and reputed father was alleged to have taken place November 12, 1844. At the audit no proof of cohabitation was offered, and the claim was disallowed. On a rehearing, the Auditing Judge found, inter alia, as follows: "From the testimony of Mrs. Agnes Jones, the widow of Robert Agnew, it appears she was married to him in Chester, Pa., by a justice of the peace, Monday, November 12, 1844. They remained in Chester, at a hotel, and the next day went to Wilmington, Del., to a house where Robert Agnew boarded, and he introduced his wife to the other occupants of the house. On Wednesday evening Robert Agnew went to Philadelphia, leaving his wife at the boardinghouse, and returned the next morning. He fourteen years, until after the death of her fatherin-law, and during all this time she was treated as a daughter, and as the lawful widow of Robert Agnew. In view of these facts, which are undisputed, the Auditing Judge must amend the adjudication filed. It now sufficiently appears that Robert Agnew and his wife did live and cohabit together as man and wife, within the spirit and meaning of the Act of Assembly. It is true it was but a few days, but, as no time is fixed by the Act, one day would be sufficient if all the other surrounding circumstances show that the relation of the parties was maintained so far and so long as the circumstances would permit." The claim was accordingly allowed. To this finding exceptions were filed. Edwin F. Glenn and John A. Bickel, for exceptants. The evidence is not sufficient to establish that a marriage ceremony actually took place, or that Robert Agnew ever acknowledged claimant as his child. Where a marriage contract is established by direct proof, reputation upon the subject becomes habitation spoken of in the Act of May 14, 1857, of little importance; and in such case the cochildren, need not be of either a continued or a and its supplements, legitimating prior-born continuous character. The exceptions are dismissed, and the adjudication confirmed. W. C. S. WEEKLY NOTES OF CASES. "This is an action known as an action for damages for malicious prosecution-for unlawful arrest. The plaintiff, alleging that he was unlawfully arrested at Harrisburg, claims from you a verdict against the defendants for causing that VOL. XXIX.] FRIDAY, MAR. 25, 1892. [No. 18. arrest. July '91, Cooper v. Hart & Co. Malicious prosecution-Malice-Want of probable cause-What constitutes probable cause. In order to recover damages in an action for malicious prosecution, plaintiff must show that there was want of probable cause and that the defendant was actuated by malice. A reasonable ground for belief of guilt constitutes probable cause. A. was arrested under a warrant issued under the Act of July 12, 1842. The warrant was issued by a president Judge before whom the cause was heard on answer filed, and he was of opinion under the proofs that A. had fraudulently contracted the debt, and, therefore, ordered him to be committed. This proceeding was reversed by the Supreme Court for the reason that the affidavit on which the warrant issued did not disclose fraud in the original undertaking, but only in the subsequent breach of the contract. A subsequently brought an action for damages for mali cions prosecution: Held, 1. That although on the certiorari brought to the action of the lower Court in issuing the warrant, this Court could only review the affidavit and the warrant, yet in this proceeding it was competent for the defendant to prove in support of his averment of probable cause, that a competent Court was of the opinion that a charge was made out. 2. That any presumption of want of probable cause is rebutted by the fact that the writ, under which A. was arrested, was issued by a Judge, who, in the law ful exercise of his judicial functions, had directed it to be issued. 3. That under the facts of this case the jury should have been instructed to find a verdict for the defendant. "It is important that you should clearly get into your minds the law upon that subject, because the law you take from the Court, while the facts are your exclusive province. 66 Before any plaintiff can recover in an action of malicious prosecution he must show two things: First, that the action brought against him was one which the then plaintiff the man who sued him-had no probable cause for bringing; and second, that it was instituted out of malice. And in this particular case, unless those had no probable cause for bringing the action, two things exist, namely, that the defendants and unless they were actuated by malice in bringing it against Mr. Cooper, he has no right to recover. Both those things must exist, and not one of them only. ["For the purposes of this case I charge you that if Mr. Cooper's story is true-and it is the only story now before you there was no probable cause on the part of the defendants to bring the action against him-that is, to issue the warrant against him.] "But the remaining question is the important question for you-whether Hart & Co., the firm by which he was sued in Harrisburg, were actuated by malice. If they were, then you ought to render a verdict against them. If they were not, you ought not to render a verdict against them. "It appears that the agent of Mr. Cooper purchased two car-loads of iron, which it is admitted according to the sale were to be paid for before Mr. Cooper's firm got them. By mistake of somebody that iron was received in their yard before the money was paid for it, and these two car-loads of iron were used in a way different from what it was intended they should be when the sale was made. By that I mean that the Appeal of William R. Hart and George T. iron was used before it was paid for. It was not Barns, trading as William R. Hart & Co., de- the intention of the party who bought the iron, fendants, from the judgment of the Common nor was it the intention of the party who sold it, Pleas No. 1, of Philadelphia County, in an action that it should be taken off the cars until it was of trespass brought by George P. Cooper, to re-paid for. But having been shot in by the railcover damages for an alleged malicous prosecution. road company upon their property, Mr. Cooper The facts, as they appeared on the trial, are claims, innocently, not knowing about it, in ' sufficiently stated in the opinion of the Supreme fact in his absence, that it was taken by his Court, infra. employés as properly belonging to his firm, and put into their furnaces and melted up. must look at this case from the other side. are not to say whether Mr. Cooper was guilty of a wrong in doing that thing only. You are to say whether the defendants, when they sent this iron to Harrisburg, it having been sent upon The defendants requested the Court to charge, "that under all the evidence in the cause the verdict of the jury should be for the defendants." Answer. "I decline the defendants' point." The Court, BREGY, J., charged the jury as follows: But you You |