Volume 134 — Pennsylvania State Reports

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF BERKS COUNTY.</p> <p>No. 313 January Term 1890, Sup. Ct.; court below, No. 3 October Term 1888, C. P.</p> <p>On September 6, 1888, Charles Breneiser, Jr., brought ejectment against Charles H. Davis, for a strip of land 2 feet 6| inches in width and 88 feet in length. The defendant’s plea was not guilty.</p> <p>At the trial on May 16,1889, the following facts were shown: Andrew Davis died in 1875, seised of two adjoining houses in the city of Reading, Nos. 138 and 140, South Eighth street, certain ground lying in their rear and enclosed therewith, and of other properties. By his will, duly admitted to probate, he devised one of the properties mentioned to his wife, providing, however, that at her death or re-marriage it should revert to his estate. Plis will provided also that on the death or re-marriage of his wife his executor, George D. Stitzel, should sell and convey all his estate, real and personal, the proceeds to be equally divided among his children.</p> <p>On January 24,1885, the widow having re-married, the executor offered the various pieces of real property belonging to the estate of the testator at public sale. The sale was advertised in the newspapers, and the premises Nos. 138 and 140 were therein described substantially in the same manner as in the deeds afterwards executed and mentioned below. Prior to the sale, the executor had a plot made exhibiting the subdivisions in accordance with which he proposed to sell.</p> <p>The house No. 140 extended along Eighth street 19 feet 5 inches. At its northern end, an alley way, about 2 feet 5 inches in width, leading from the street to the rear, passed underneath the second story. This alley was used in common by the occupants of both the testator’s houses. A division fence between the yards in the rear of these houses started at the end of the alley and ran back upon a line with the southern edge of it, so that a person, in passing from the street through the alley, if he kept straight on, would walk into the yard connected with No. 138 ; and one, wishing to go into the yard of No. 140, would have to turn at a right angle, to the left, and pass through a gate in the fence. This fence had been maintained upon that location for some years prior to the testator’s death, the width of the lot enclosed with house No. 140, at its rear, being only 17 feet.</p> <p>The draft made by the executor adopted the line of the fence as the division line in accordance with which his sales should be made, representing the lotto be sold with house No. 140 as' 19 feet 5 inches in width, back as far as the end of the alley, and as 17 feet in width, for the remainder of its depth; and representing the space which a prolongation of the alley vrould have occupied as a part of the ground to be sold with house No. 138.</p> <p>The plot was presented at the sale, held in the Keystone hotel; and the testimony for the defendant tended to prove that, after the auctioneer had read the conditions of sale, embracing descriptions of the properties to be sold, which were to the same effect as those contained in the advertisements, the executor’s attorney announced to the persons present that all bidders desiring to examine the draft might come forward and do so, whereupon he laid it down upon the counter where it was accessible to any one who might wish to see it. Charles Breneiser, Sr., who was the father of the plaintiff and attended as a bidder on the plaintiff’s behalf, testified that he heard no such announcement and saw no draft, though the announcement might have been made before he came in, as he was a little late getting to the sale ; that the only knowledge he had of the dimensions of the lot No. 140 was derived from the advertisement describing it as having a front of 19 feet 5 inches and a depth of 120 feet; that he had examined the property before the sale and had seen the fence, but made no measurements and took it for granted the fence was on the line; and that he paid no attention to the description of the other lot in the advertisements and conditions of sale, as he did not intend to bid on . it and was not interested in it. There was evidence that the plaintiff also had inspected the property before the sale.</p> <p>At the sale on January 24, 1885, the premises No. 140 were struck off to Charles Breneiser, Sr., for his son, the plaintiff, who the same day signed a contract of purchase appended to the conditions of sale and making reference thereto. In them this property was described as being 19 feet 5 inches by 120 feet. On March 27, 1885, the plaintiff received a deed from the executor which was duly recorded on April 1, 1885. The description therein was as follows :</p> <p>“ All that certain two-story brick dwelling house, with brick back buildings, and a lot or piece of ground, situate on the west side of South Eighth street, between Chestnut and Franklin streets, in the city of Reading, aforesaid, No 140 South Eighth street; bounded on the north by other property of said Andrew Davis, deceased; on the west by other property of said deceased about to be conveyed to Charles H. Davis; on the south by property of Mary R. Marhett, and on the east by said South Eighth street; containing, in front, including alley, nineteen feet five inches, and in depth one hundred and twenty feet: subject to the joint use of the alley on the north by the owner of the premises adjoining on the north.”</p> <p>The property, No. 188 South Eighth street, was offered at the sale on January 24, 1885, and was bid for but was not sold that day. On February 2,1885, the executor sold it at private sale to Charles H. Davis, the defendant, the contract describing it as having a frontage of 22 feet and \ inch, but a width of 24 feet 7§ inches beyond the terminus of the alley. The deed in execution of this contract was made on January 26, 1887.</p> <p>At the close of the testimony, the court, Ekmentkout, P. J. delivered a charge to the jury, which, after reciting the circumstances surrounding the sale to the plaintiff and the conveyance made to Mm in pursuance thereof, proceeded as follows :</p> <p>Now, that was the property conveyed to Mr. Charles Bren-eiser; and the difficulty arises from the fact that the one boundary line, between the Breneiser property and the property claimed by the defendant, was not fully described in this deed. The mere presenting of this deed and proof of its execution, if there was nothing else in this case, would entitle the plaintiff to a verdict, if any part of the property embraced in the 19 feet 5 inches by 120 feet had been taken possession of by the defendant. For, ordinarily, in the absence of any marks upon the ground, or monuments or other proper legal evidence showing the facts to be otherwise, when a man buys a piece of ground 19 feet 5 inches in front by 120 feet in depth, the presumption would be that he bought, straight through, the 19 feet 5 inches; so that if this deed were the only evidence in the cause, the plaintiff would be entitled to a verdict.</p> <p>But there is other evidence in the cause to show the exact boundaries of this property, and to show what was really conveyed by this deed of George D. Stitzel, executor, to the plaintiff. In other words, when courses and distances given in a deed differ from the natural and artificial boundaries on the ground, the boundaries on the ground govern. If there are no monuments, no marks upon the ground, to indicate the lines, and there is a discrepancy between the courses and distances given, and the adjoining land is called for, the adjoining lands would prevail; and, in ascertaining the location of the tract of land, the inquiry is not where it should be or might be located, but where it actually was located.</p> <p>Evidence is produced here to show to the jury the monuments and marks upon this ground, and these monuments and marks upon the ground will control and fix the boundaries, regardless of what the measurements may be in a deed. This property is described as an entire property, as being No. 140 South Eighth street. In the advertisement, the adjoining property of the defendant is described as No. 138, and to determine the boundaries of these properties it is necessary for the jury to examine into the boundary marks upon the land, and where there are such, those boundary marks would control the courses and distances and measurements.....</p> <p>[Now, it is contended on the part of the defendant that the boundaries here are marked by this fence; and, if from this evidence the jury should find that there are fences upon this property enclosing the tract, those fences would govern. There does not seem to -be any dispute about that fact, so far as the court can learn in this case. There are fences there, and they mark out a plot of ground just as the defendant contends was conveyed in this deed to the plaintiff. If that is so, the plaintiff has no case.] 1</p> <p>A great deal has been said in this case about a draft. We say to the jury that, if they would believe the testimony that at this sale the advertisements were read and a notice given of a draft showing these properties so as to give notice to buyers, any one seeing that draft would be bound as to the location and boundary line of those properties hy the descriptions in the draft, and he could not complain if he got anything and everything that was contained in the draft in the particular plot which he bought.</p> <p>[But, even if the draft was thrown out of the case, we say to you that the plaintiff would be bound by the notices contained in the advertisements which were read at this public sale, and the notices contained in the conditions which he signed, which refer to this advertised list. An inspection of this advertised list will show that these.properties were put up and sold as specific properties: No. 1, as an entire property, and 2, as an entire property; and the description in No. 1, now owned by Davis, sets forth the description in full and in detail of the very strip of land which the plaintiff alleges should be in his possession. So that, from that advertisement, the plaintiff would have notice of the manner in which these properties were sold, and that this strip formed part of No. 1 and not of No. 2, which he bought. That being so, the verdict should be', for the defendant.] 2</p> <p>The plaintiff asks us to say to the jury:</p> <p>1. That if the jury find that the plaintiff, or his father, Charles Breneiser, Sr., who bid off the property at public sale, did not have actual notice when he purchased, or when the deed was delivered and the consideration money paid, that the property was not of uniform width 120 feet west from Eighth street, then the verdict must be for the plaintiff.</p> <p>Answer: This .point we cannot affirm.</p> <p>2. If the jury find that notice of a draft was given only when the sale began, and no notice was given of the draft when the plaintiff’s property was put up for sale and the printed advertisement and description of it read by the auctioneer; and the jury further find that plaintiff had no notice that the property was not of uniform width, from the building line of Eighth street westward 120 feet, at the delivery of the deed, the verdict must be for the plaintiff.</p> <p>Answer: This point is refused.</p> <p>3. That the plaintiff’s deed being recorded more than a year prior to the execution of the defendant’s deed, the recording thereof was notice to the defendant of the conveyance of the property in question to the plaintiff.</p> <p>Answer: If by this point is meant the disputed strip of ground, we cannot affirm it. The jury will recollect that the plaintiff’s deed was prior to the execution of the defendant’s deed; but that does not necessarily give the plaintiff title to that strip of ground.3</p> <p>The whole case turns upon this matter of description rather than anything else. [Here are the marks upon the ground showing the plot sold to the plaintiff. He took possession of the plot, and those marks being upon the ground were notice to him of the extent of the boundaries of the land, and under the evidence in this case the jury will probably have no difficulty in finding a verdict for the defendant. It will be unnecessary for you to leave the box. The court have already laid down to you the principles of law, and there is very little dispute in the testimony; in fact, none upon the main points, In the judgment of the court, your verdict should be for the defendant.] 4</p> <p>The jury returned a verdict for the defendant. A rule for a new trial having been discharged, judgment was entered on the verdict, when the plaintiff took this appeal, assigning for error:</p> <p>1, 2. The portions of the charge embraced in [ ] 1 2</p> <p>3. The answer to the plaintiff’s point.3</p> <p>4. The portion of the charge embraced in [ ] 4</p>

No. 31 July Term 1879, Sup. Ct.; court below, No. 82 February Term 1887, C. P. On January 29, 1887, Henry Haus and Sarah A. Haus, his wife, in right of said wife, brought trespass against the borough of Bethlehem. Issue.

<p>APPEALS BY PLAINTIPP AND DEPENDANT PROM THE COURT OP COMMON PLEAS OP NORTHAMPTON COUNTY.</p> <p>Nos. 46, 55 January Term 1890, Sup. Ct.; court below, No. 1 December Term 1888, C. P. in Equity.</p> <p>On October 29,1888, William U. Stocker filed a bill in equity against William H. Hutter, in which he averred:</p> <p>1. On or about the first day of September, 1879, with the defendant I engaged in the business of buying wood lots and cutting and marketing the timber and wood thereon, and continued so doing, at intervals, until on or about the first day of January, 1885.</p> <p>2. The first wood lot, known as the John J. Unangst tract, was purchased and operated under the following conditions and agreements : Defendant advanced the money to pay for the tract and the expenses of marketing the lumber and wood thereon, and I was to cut and market the same and pay the proceeds to him as they were received, and, after taking thereout and from the proceeds of the sale of the tract the moneys so advanced, with legal interest, he was to account to me for the balance and pay me the same when called upon.</p> <p>3. The second wood lot, known as the Bangor tract, was purchased on like conditions and agreements, with the exception that defendant agreed to advance the sum required for its purchase and cutting and marketing the timber thereon, without interest, if I would assume a certain note of Slater & Hudnit for $880, and agree that he should pay said note out of the proceeds of sales of said lumber and wood on said tract and apply the balance of said proceeds of sale to payment of balance of a mortgage amounting to $1,260, and to payment of a mortgage of $3,000, with interest, which I agreed to do.</p> <p>4. The third wood lot, known as the Point Phillips tract, was purchased upon the agreement that defendant was to advance the purchase money and the expenses of cutting and marketing the lumber and wood thereon, and I was to cut and market the same and pay over to him the net proceeds of sales as received, and after he had been repaid the moneys so advanced, the balance of the proceeds, with the amount of the sale of said tract, was to be divided equally between defendant and myself.</p> <p>5. Upon the above conditions and agreements, the said tracts were purchased, and the lumber and wood thereon cut and marketed, and the proceeds of sales, less the expense of marketing, duly paid by me, from time to time, to defendant, who, as I am not skilled in keeping accounts, was to duly keep proper accounts of the same and pay to me such balances as might be due to me, when called upon, as he had agreed and promised to do.</p> <p>6. Notwithstanding that the sums so paid over by me and received by defendant from tbe profits and proceeds of said business and sales of said land were largely in excess of the moneys advanced by defendant, and that the obligations assumed by me and to be paid out of such proceeds due me were paid by me with other moneys, defendant has never finally and fully accounted for the same, although he has repeatedly promised so to do, and I have repeatedly called upon him so to do, and he has not paid over to me or to any one for me the balance due me, amounting, to the best of my information and belief, to the sum of $2,260, although often asked so to do, and still refuses to account for and pay over the same.</p> <p>Wherefore I pray equitable relief: 1. That defendant be decreed to account for and pay to me the amount of such balance of money in his hands, due me, with interest. 2. For such other equitable relief as I may be entitled to.</p> <p>—To the foregoing bill the defendant filed an answer admitting the averments which entitled the plaintiff to an account, but, setting out specifically his defences, he denied that he was in any way indebted to the plaintiff.</p> <p>Issue having been joined, the cause was referred to Mr. Orrin Serf ass, as examiner and master, who made a report stating an account and recommending the decree: “ That William H. Hutter, the defendant, pay unto William U. Stocker, the plaintiff, the sum of three hundred, and thirty-seven dollars and seventy-six cents ($337.76), with interest from June 24, 1889; and that plaintiff and defendant each pay one half the cost of this proceeding.”</p> <p>To the master’s report both plaintiff and defendant filed exceptions. These exceptions, being overruled by the master, were renewed on the filing of the report. After argument thereof, the court, Schuyler, P. J., entered a decree dismissing all the exceptions filed and confirming the report of -the master.</p> <p>The plaintiff then took the appeal to No. 46, specifying that the court erred in dismissing the several exceptions filed by the plaintiff, in confirming the master’s report, and “ in not decreeing the full amount claimed by plaintiff, with full costs.”</p> <p>■ And the defendant took the appeal to No. 55, specifying that the. court erred in dismissing the several exceptions filed by the plaintiff, “ in imposing any part of the costs upon William H. Hutter, and in not dismissing plaintiff’s bill with costs.”</p>

<p>[To be reported.]</p> <p>1. In the absence of evidence to the contrary, the maker of negotiable paper is presumed to have issued it clear of all blemishes, erasures and alterations; and the burden of showing that a blemished instrument was defective when issued, is upon the holder, notwithstanding the presumptions in favor of innocence, or the fact that the original parties to it are dead.</p> <p>2. When it is apparent upon the face of a note or bank check that the paper, at the place where the date or the amount of it is written, is so defaced as to remove the sizing and a part of the surface, and the date or amount is afterward written therein, it is unnecessary that the paper should exhibit traces of previous matter written beneath, to bring the instrument within the rule.</p> <p>3. The mere fact that material words of an instrument appear to have been written on paper where it previously had been blurred or defaced, might not import an alteration; but, where the words so written were crowded or cramped so as to fit the same space, the manifest appearance is that of an altered instrument, and the burden is on the holder to explain it.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.</p> <p>No. 267 J- January Term 1890, Sup. Ct.; court below, No. 55 December Term 1889, C. P.</p> <p>On November 27, 1889, George G. Starck, administrator of Joseph E. Starck, deceased, brought assumpsit against the Union Central Life Insurance Company of' Cincinnati, Ohio, upon a policy for $2,000, issued October 21, 1884, by the defendant company, upon the life of the plaintiff’s intestate.</p> <p>The plaintiff filed an affidavit of claim setting out the policy and averring that the decedent had paid more than five annual premiums thereon, and in all respects had complied with its conditions; that he died on July 27, 1889, and the plaintiff, having been duly appointed his administrator, furnished to the defendant proper proofs of death. The policy set out in the affidavit contained the following conditions:</p> <p>“8. That in case the insured shall die by his own hand, whether sane or insane, or in consequence of a duel, or in consequence of the violation of the laws of the United States or any nation, state or province, or shall become a drunkard, or have delirium tremens, this policy shall become null and void.....</p> <p>“ 9. That in case of the death of the insured during or by reason of the violation of the conditions and agreements as specified above in Nos. 4, 5, and 8, this policy shall be valid for the reserve value of it, at the time of the death, calculated by the American Experience Table of Mortality, with interest at six per cent per annum, and for no greater amount.</p> <p>“10. That upon the violation of the foregoing conditions, or any of them, this policy shall be null and void, and all payments made thereon, and also all accrued surplus or profits, shall be forfeited to said company, except as provided in the foregoing ninth clause.”</p> <p>“ 13. Whether the insured reside in Ohio or elsewhere, this policy is issued subject to the following named section of the Ohio Revised Statutes: ‘Section 3626. All companies, after having received three annual premiums on any policy issued on the life of any person in this state, are estopped from defending upon any other ground than fraud, against any claim arising upon such policy by reason of any errors, omissions, or misstatements of the assured in any application made by such assured on which the policy was issued except as to age.’ ”</p> <p>The defendant filed an affidavit of defence, averring that the insured, Joseph E. Starck, committed suicide on July 27, 1889, whereby he violated a condition of the policy rendering it null and void, said condition being expressed in condition 8 thereof; admitting, however, that under condition 9, the defendant was liable for the reserve value of the policy at the time of the insured’s death, to wit, 174.62, but denying that the defendant owed the plaintiff, upon said policy, anything over and above said reserve value.</p> <p>Upon the filing of the affidavit of defence, the plaintiff, under a rule of the court below, took judgment against the defendant for the amount admitted to be due, electing not to accept the same in full satisfaction, but to proceed for the balance of his claim; and thereupon he entered a rule for judgment for want of a sufficient affidavit of defence.</p> <p>On January 20,1890, said rule having been argued, the following opinion was filed, Schuvugr, P. J.:</p> <p>This is an action to recover the amount of $2,000, being the amount of a policy of insurance issued by the defendant company, an Ohio corporation, upon the life of the plaintiff’s intestate. The person insured committed suicide, and the only defence set up grows out of that circumstance. In support of this defence, we are referred to the eighth condition of the policy, which provides that “ in case the assured shall die by his own hand, whether sane or insane, this policy shall become null and void.” Of course, if the eighth condition stood alone it would be a complete answer to the present suit, but the policy contains another condition, which reads as follows:</p> <p>“ 13. Whether the insured reside in Ohio or elsewhere, this policy is issued subject to the following named section of the Ohio Revised Statutes: ‘Section 3626. All companies, after having received three annual premiums on any policy issued on the life of any person in this state are estopped from defending upon any other ground than fraud, against any claim arising upon such policy by reason of any errors, omissions or misstatements of the assured in any application made by such assured on which the policy was issued except as to age.’ ”</p> <p>It is admitted that the three annual premiums here referred to, were paid by the plaintiff’s intestate. If the foregoing section is a fair sample of the legislation which goes to make up the revised statutes of our sister state, it may well be doubted whether revision, per se, is an unmixed blessing; for the section, as it stands and taken in its entirety, is almost, if not quite meaningless, or, if it has any meaning, it is an absurd one, which cannot be imputed to the legislature, if there is any way of escape. It is not easj" to see how the assured could have any claim under his policy “ by reason of any errors, omissions or misstatements ” in his application, which is his act, and yet this impossible claim is the only one which the defendant is estopped from defending against, if the section under consideration is read literally.</p> <p>But such a reading renders the section nugatory, in violation. of the cardinal rule, that in the consideration of statutes effect is to be given to every part: Howard Ass’n’s App., 70 Pa. 344: “ All statutes are to be considered so as to give them operation if the language will permit, instead of treating them as meaningless.” This may be done, in the case at bar, by simply transposing the words, “ against any claim arising upon such policy,” so as to make the section read as follows: “ All companies, after having received three annual premiums on any policy, are estopped from defending against any claim arising upon such policy upon any other ground than fraud, by reason of any errors,” etc. In this way we not only give effect to the section, but the very effect, we think intended by the legislature. It is well known that it has become quite common for life insurance companies to insert in their policies a clause making them incontestable after three years from date, and a very proper feature it has proved to be. There is scarcely room for doubt that some such thought as this was in the legislative mind, when this section of the act under consideration was passed, and that its involved meaning was the result of tampering, during its passage, in the interest of companies not yet prepared to accept the principle of incontestability.</p> <p>One thing is certain, the passage of the section was for the protection, not of the companies, but of the insured; and that purpose is accomplished by the construction we have reached. It is almost as certain that the object of inserting the section in the policies issued by the defendant company, was to create the impression that it was intended as an offset to the conditions against suicide. That condition to most people is very objectionable, not because they have any idea of committing suicide, but because the policy is avoided if the insured shall die by his own hand, even in a fit of insanity. A man may have been insured half a century, and may have paid his premiums promptly in hope of leaving his family provided for, and may suddenly lose his mind. If, while in this pitiable condition, which is by no means uncommon, he should take his own life, all claims of his family, under the policy, would be swept away by the condition against suicide.</p> <p>People about to insure their lives think of these things. The peculiar phraseology of condition thirteen, aided by the glib tongue of the insurance agent, is well calculated to quiet all apprehension under condition eight, so that the danger of doing the defendant injustice by our construction of the former condition is not very imminent. Moreover, the construction we have adopted accords with the well-recognized rule that “in case of doubt as to meaning of terms emanating from an insurance company, they are to be construed most strongly against the insurer: ” Burkhard v. Insurance Co., 102 Pa. 266.</p> <p>—The rule for judgment having been made absolute, judgment was entered in favor of the plaintiff for $1,943.70, whereupon the defendant took this appeal, specifying that the court erred:</p> <p>1. In making absolute the rule for judgment.</p> <p>2. In entering judgment for want of a sufficient affidavit of defence.</p>

No. 170 January Term 1890, Sup. Ct.; court below, No. 188 April Term 1889, C. P. On February 19,1889, F. J. Wall brought assumpsit against Julius B. Knapp and William M. Bailey, executors of S. P. Allen, deceased, to recover the sum of $350 alleged to have been furnished by the plaintiff to the defendants’ testator, in his lifetime, and used by the latter in the purchase, as the plaintiff’s agent, of a mortgage against the plaintiff’s brother-in-law, James T. Adams, claiming…

3 OF PHILADELPHIA COUNTY. No. 210 January Term 1889, Sup. Ct.; court below, No. 213 December Term 1886, C. P. No. 3. To tbe number and term in the court below, Joseph B. Aspell and Catharine Aspell, his wife, brought an action against Job Smith to recover damages for a libel charged to have been published by the defendant of and concerning the said Catharine Aspell.

<p>[To be reported.]</p> <p>1. By virtue of his acceptance of a trust, a trustee does not become an insurer of the trust funds against the possibility of loss, nor a surety for his co-trustees. His undertaking is personal, requiring of him good faith and reasonable diligence; and if these requirements be met, he is not liable for losses occasioned by the bad faith or embezzlement of his co-trustees: Hall v. Boyd, 6 Pa. 270; Wilson’s App., 115 Pa. 95; Stell’s App., 10 Pa. 149 ; Jones’s App., 8 W. & S. 143.</p> <p>2. When two of three trustees for investment have put it into the power of the third to collect the principal of a mortgage belonging to the trust, it becomes their duly to see that it is properly re-invested. If they neglect this duty, and do nothing for several years beyond inquiring whether the re-investment has been made and ascertaining that the co-trustee has paid annually to the cestui que trust the usual sum as income thereof, they are responsible for his embezzlement of the fund.</p> <p>(а) Certain trust funds were invested in mortgages held in the names of three testamentary trustees. For convenience the original mortgages and the accompanying bonds were left in the custody of one of the trustees, who lived near the cestui que trust, was in good repute and had been intrusted by the testator with the management of his financial affairs, with authority to collect and pay over the interest on the mortgages. This duty he performed satisfactorily for some years.</p> <p>(б) Finally, however, without the knowledge of the co-trustees, he entered satisfaction upon one of the mortgages, signing it as acting executor, and received the principal which he embezzled: he also entered judgment on the bond accompanying another mortgage, and had the property embraced therein levied on and sold: the property was bought by his daughter for less than the mortgage debt, and he embezzled the proceeds:</p> <p>3. The arrangement under which the securities were left with the third trustee, not being shown to have been improvident or an act of negligence on the part of the other trustees, and they having had no reason to anticipate his frauds and having done nothing to render them possible, said co-trustees were not responsible for the embezzlement of the proceeds of these mortgages.</p> <p>4. A trustee who has embezzled trust funds, for a part of which his co-trustees are responsible upon the ground of negligence, may, upon confessing a judgment in their favor for the amounts so embezzled, direct that the moneys to be collected thereon shall be appropriated to the payment of the fund for which the co-trustees are liable, and they will have the right to apply it as so directed.</p>

Suit was brought in the name of the payee of an unindorsed note, to recover against the maker, for the use of the administrator of a decedent among whose papers it was found on his death, with writs of scire facias sur judgments against the payee on which the decedent had become bail for stay of execution, and which had been paid by decedent. The payee testified that he had not transferred the note to the decedent, but had left it with him to have it discounted in bank.

<p>[To be reported.]</p> <p>(a) By § 16, act of April 9, 1849, P. L. 527, it is provided that after confirmation of the sale and execution and acknowledgment of the deed, a purchaser at an Orphans’ Court sale shall have the right to obtain possession of the premises by proceeding in the same manner as provided in relation to sheriff’s sales:</p> <p>1. The decree confirming the Orphans’ Court sale does not operate of itself to transfer the title: Leshey v. Gardner, 3 W. & S. 314; and hence the title of the heirs is not divested by such sale until the purchaser has complied with the terms of sale and received his deed for the premises purchased.</p> <p>2. Wherefore, the heirs of a decedent are entitled to the rents accruing between the date of confirmation of an Orphans’ Court sale and the date when the deed is delivered to the purchaser, and the payment of such rents to the purchaser is no defence to an action by the heirs therefor.</p>

No. 61 January Term 1890, Sup. Ct.; court below, No. 594 September Term 1886, C. P. ■ On August 3, 1889, the record of the ease reported as Run-dell v. Kalbfus, 125 Pa. 123, having been remitted to the court below, Kalbfus & Jones, the plaintiffs, caused a writ of capias ad satisfaciendum to issue, which was executed by the arrest of the defendant Rundell.

No. 232 January Term 1890, Sup. Ct.; court below, No. 1 September Term 1887, C. P. in Equity.

The act of March 13, 1873, P. L. 285, providing that, “instead of the pay heretofore received,” the election officers in Lycoming county should receive “ $2.50 per day, to be computed from the opening to the closing of the polls, and 25 cents per hour for each additional hour they may be necessarily engaged in counting the votes and making out the returns after the polls shall be closed,” a return judge is not entitled to the per diem allowance under § 92, act of July 2,…

<p>[To be reported.]</p> <p>(a) A spendthrift, to prevent the dissipation of his estate, conveyed property to a trustee, the income thereof, after paying the expenses of the trust and the s.ettler’s debts, to be paid to his wife and children, during his life, for their sole and separate use, share and share alike, and so as not to be subject to his debts; after his death, the corpus to be distributed to his wife and children in accordance with the intestate laws:</p> <p>1. When the creation of such a trust has been rendered necessary by the folly and extravagance of the settler, and he has voluntarily and intelligently executed such a deed, equity will not relieve him by setting it aside, though it convey practically his whole estate, without reserving any power of revocation or of support for himself, beyond his incidental rights as a member of his wife’s family.</p> <p>2. If one of the settler’s properties was omitted from sueh conveyance, the fact that the trustee, although required by the terms of the trust to pay the settler’s debts, did not pay off the liens upon that property out of the trust funds, but permitted the property itself, admittedly encumbered to its full value, to be applied to their payment, calls for no equitable relief against him.</p> <p>3. Under such a trust, the settler has the benefit of a home and support, as a member of his wife’s family, so long as his conduct is such that he may properly reside with his wife and children; but, after the affirmance by the Supreme Court of a decree dismissing a bill to set aside the trust as having been procured by fraud, such bill cannot be amended so as to aver the settler’s improper exclusion from those benefits.</p> <p>4. The settler, in such a deed, is a competent witness to testify before a master in support of an allegation that the deed was procured from him by a fraudulent combination between his brothers and the trustee, al7 though his wife has an interest in the trust, when the wife is not a party to the deed, and, not being a purchaser of her interest under it, has no standing to resist its cancellation: Per Bucher, P. J.</p>

No. 327 January Term 1890, Sup. Ct.; court below, No. 486 August Term 1888, C. P. On August 6, 1886, R. J. Gallagher and others, doing business as Gallagher & Co., issued a scire facias sur mechanics’ lien against W. C. Sharpless. Issue. At the trial on January 21, 1890, the plaintiffs sought to recover a balance of 1425 due for the erection of a summer cottage for the defendant, under a written . contract, and for extra work done upon the defendant’s order.

<p>[To be reported.]</p> <p>1. While a court of equity will sometimes issue an injunction in cases of private trespass, it will do so only when the right is clear. If the facts be disputed, and the right not clear, the plaintiff must first establish the right at law, and the objection that he has not done so, goes to the jurisdiction of equity and may be raised by the court itself, at any time, though not raised in the pleadings nor asserted by counsel.</p> <p>2. Where the findings of a master have been approved by the court below, clear error must be pointed out to justify their reversal by the Supreme Court, and it is not enough that there is a conflict of testimony; if, however, the master’s findings have been set aside by the court, the Supreme Court, having equal advantages in arriving at the truth, will examine the testimony and determine whether it sustains the master.</p> <p>3. A bill in equity praying for an injunction against an alleged nuisance, consisting of the percolation into the plaintiff’s cellar of water from the defendant’s premises, and for damages on account thereof, should be , dismissed, when the source of the water complained of must be ascertained by deduction from the facts proved, and those facts support the inference that such percolation results from natural causes, and not from any act or default of the defendant.</p>

1 OP PHILADELPHIA COUNTY. No. 244 January Term 1890, Sup. Ct.; court below, No. 279 December Term 1881, C. P. No. 1. On February 11, 1882, a rule for a sheriff’s interpleader was made absolute, Abel P. Shive, the claimant of goods levied upon as the property of Shive Brothers, saloon-keepers, being made plaintiff, and J. C. and V. B. Finn, trading as J. C. Finn & Son, execution creditors, being made defendants. Issue.

<p>APPEAL BY PLAINTIEES EROM THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>No. 281 January Term 1889, Sup. Ct.; court below, No. 691 December Term 1884, C. P. No. 3.</p> <p>On January 31,1885, J. Lewis Crew and Lewis J. Levick, trading as Crew, Levick & Co., brought case against the Bradstreet Company, filing a declaration, which averred in substance that the defendant was engaged in carrying on the business of a commercial agency, and represented to the plaintiffs and the public that for certain fees and rewards it would use due diligence and care in ascertaining the financial standing of all persons and corporations doing business in the United States, and issue a book giving a statement thereof and of the amount of capital paid into the treasuries of the various corporations of the United States; that, relying on said representations, the plaintiffs subscribed to the said agency and purchased one of the said books, paying therefor the sum of $100 ; that it was the duty of the defendant to use great care and diligence in obtaining the information aforesaid and in printing the said book; but the defendant, not regarding its said duty to the plaintiffs, carelessly and negligently printed and published in said book that the Union Refining Manufacturing Company, a corporation of the state of New Jersey, had $600,000 capital paid in, and the plaintiffs, relying upon said representation of the defendant, sold goods to said refining company on credit to the amount of $1,500; whereas the defendant had not used due care or diligence in ascertaining the pecuniary ability of said refining company and in printing and publishing said book, and said refining company did not have said amount of capital or any part thereof, but was at the time of publishing said book, insolvent and not fit to be trusted with goods on credit; that said sum of money was wholly unpaid to the plaintiffs, and-they were likely wholly to lose the same, to their damage, etc. The defendant’s plea was not guilty.</p> <p>At the trial, on October 30, 1888, the plaintiffs presented testimony tending to show the following facts :</p> <p>For a number of years prior to 1884, the plaintiffs, whose place of business was in Philadelphia, were subscribers to a mercantile agency carried on by the defendant. On January 3,1884, their subscription was renewed for the ensuing year, bjr a written contract signed by the plaintiffs, as follows:</p> <p>“ The Undersigned hereby employs The Bradstreet Company, from January 1,1884, to January 1,1885, to procure, to the best of its ability, information concerning the responsibility and character of Mercantile Persons inquired for, within the states represented in the volumes loaned, said inquiries not to exceed 200, except as hereinafter agreed. And in consideration of such service, including the loan of the January, 1884, July, 1884, 188 and 188 volumes of its U. S. & Ca. reports, the undersigned hereby agrees to pay The Bradstreet Company One hundred and twenty-five dollars, $62.50 each January 15, ’84, and July 15, ’84, and for each inquiry exceeding the 200 before mentioned, thirty-three and one third cents on demand. And it is further expressly agreed by the undersigned, that all information, whether printed, written or verbal, furnished by The Bradstreet Company to the undersigned, shall be held in strict confidence, and shall never be revealed to the persons reported; that the undersigned will neither ask for information for the use of other parties, nor permit it to be done; that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company, in procuring, collecting, and communicating said information; that the said company does not guarantee the correctness of the aforesaid information, and that the said volumes to be loaned, as aforesaid, shall be returned to the company, without notice from it, upon the receipt by the undersigned of any subsequent edition of its books, or at the expiration of the subscription term</p> <p>About the middle of December, 1884, a salesman of the plaintiffs went to New York to sell a lot of parafine wax for the plaintiffs. His instructions were to sell for cash. Receiving from the Union Refining etc. Company an offer to purchase at thirty days’ acceptance, he sent a telegram to the plaintiffs at their place of business in Philadelphia, stating the offer. Upon receiving this telegram, Mr. Levick, one of the plaintiffs, referred to the volume of reports issued by the defendant in July, 1884, which was furnished to the plaintiffs in pursuance of the contract of January 3,1884, and found therein the statement that the refining company had “ capital paid in, $600,000.” Thereupon he telegraphed to the salesman to accept the offer. In pursuance of his telegram the sale was made, and the plaintiffs after shipping the goods drew on the purchaser for their price, $1,500, at thirty days.</p> <p>Some days afterward, Mr. Crew, who was not present when the telegrams from and to the salesman were received and sent, learning of the sale of the wax, sent to the defendant for a special report as to the standing of the refining company, and received a reply stating that the company was reported by its president to have $20,000 paid-in capital and an indebtedness of about $5,000. He then sent to the defendant the following communication: “Gentlemen:' We notice in your book you have the ‘Union Refining & Manufacturing Co.,’ Jersey City, rated as $600,000 capital paid in. In the report which we received from you to-day, you state that only $20,000 capital has been paid in. How are we to reconcile these two reports. We should be glad to hear from you.” The reply to this letter was written at the foot thereof, and was as follows: “ Typographical error in book, which should read auth. cap. $600 M.”</p> <p>The draft of the plaintiffs upon the Union Refining & Manufacturing Company was not paid at maturity nor thereafter. The plaintiff Levick testified that when it matured the company was insolvent; that, as the president had informed the witness, the company’s works had been destroyed by fire and having no insurance it had lost thereby $15,000. The books issued by the defendant in July and October, 1883, and January, May, July and October, 1884, all contained the statement that the Union Refining & Manufacturing Company had a paid-in capital of $600,000.</p> <p>At the close of the testimony for the plaintiffs, the court, Gordon, J., on motion of the defendant, entered a judgment of nonsuit, with leave, etc.</p> <p>A rule to show cause why the judgment of nonsuit should not be taken off having been argued, the following opinion was filed, Gordon, J.:</p> <p>The contract upon which suit is brought is that the defendants shall furnish information in reply to inquiries made by the plaintiffs, and in consideration of such service, including the loan of the January and July, 1884, volumes, the plaintiffs agreed to make certain payments. It is expressly stipulated in this agreement, “ that the company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company, in procuring, collecting and communicating said information; that the said company does not guarantee the correctness of the aforesaid information.”</p> <p>There seems to have been but one inquiry, and that was correctly answered; and,'therefore,strictly construing the contract as relating only to information upon inquiries, the plaintiffs had no cause of action. It is contended, however, that the defendants are responsible for the false information contained in the July report. This volume makes no part of the defendants’ duty under the contract. It is true that the loan of the book was paid for, but the information therein contained was in no way stipulated to be correct. Nor could it be inferred from the loan of the book that the subject matter of it was to be considered as written in the contract.</p> <p>It is also contended that this contract, so far as it saves the defendants from liability for the falsity of the information furnished, is inoperative upon the ground of public policy. The defendants are private individuals, performing a private business for private persons. It gives them no privileges which every citizen has not, and imposes no duty which is not imposed upon the individual citizen. They are not compelled by the nature of their occupation to deal with any one; and no one has a right to compel them to take business. In other words, they perform no public functions and therefore owe no duties to the public.</p> <p>This contract has already received judicial construction by Judge Bxjtler : Duncan v. Dun, 7 W. N. 246. He says: “We understand the class of cases to which reference has been made by counsel, in which it has been held that a party shall not, cannot protect himself by such a saving clause against his own gross negligence. But these are cases in which public policy forbids such a rule; as, for instance, the cases of hotel keepers, common carriers and the like, who are engaged in a calling of a public nature. This is not of that description, in the judgment of this court; and this proviso is not therefore to be so read.”</p> <p>—Thereupon the plaintiffs took this appeal, specifying the entry of the judgment of nonsuit and the refusal to take off said judgment for error.</p>

<p>APPEALS BY DEPENDANT EROM THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>Nos. 115, 116, 117, 118 July Term 1889, Sup., Ct.; court below, Nos. 273, 274, 275, 276 September Term 1888, C. P. No. 3.</p> <p>To tbe numbers and term in the court below, the city of Philadelphia brought four actions of scire facias against The Contributors to the Pennsylvania Hospital,” upon municipal claims filed against four lots of ground belonging to the defendant for the laying of water pipes in front of said properties.</p> <p>The defendant filed an affidavit and supplemental affidavit in each case, averring that the claim for laying water pipe was' a tax assessed against the defendant, and stating the following matter as a defence thereto.</p> <p>2. That the said defendant was incorporated by an act of the general assembly of the province of Pennsylvania, passed May 11, 1751, entitled “ An Act to encourage the establishing of a hospital for the relief of the sick poor of this province and for the reception and cure of lunaticks,” [1 Sm. L. 208,] and it is one of the provisions of the said charter “ that no general meeting of the said contributors, nor any person acting under them, shall employ any money or other estate, expressly given or added to the capital stock of the said hospital, in any other way than by applying its annual interest or rent towards the entertainment and care of the sick and distempered poor that shall be from time to time brought and placed therein, for the cure of their diseases, from any part of this province, without partiality or preference.”</p> <p>3. That by an act of assembly, approved March 19, 1845, entitled “ An Act to exempt from taxation the estate of the Pennsylvania Hospital,” P. L. 187, which is made part of this affidavit, it is enacted that its property and estate, real and personal, should be and remain free from the payment of taxes of any kind whatsoever, provided that nothing in said act should exempt from the assessment and payment of road and poor taxes, any part of the property of said Pennsjdvania Hospital located in Blockley township.</p> <p>4. That by the seventh section of the act of April 18, 1853, P. L. (1854) 834, it was enacted “ that the estates and property, real and personal, belonging to the contributors to the Pennsylvania Hospital, shall be and remain free from the payment of taxes of any kind whatsoever, as long as the income from said estates and property is used for the relief of the sick and insane poor, any law to the contrary notwithstanding.”</p> <p>5. That the real estate, against which said claim for water-pipe or tax sued for is levied and assessed, is part of certain real estate formerly situated in Blockley township and which was acquired by the corporation defendant by deeds from various persons, all prior to April 18, 1853. Said corporation defendant is, therefore, by the express terms of the legislation above referred to, exempt from the payment of all taxation.</p> <p>6. Defendant further avers that the real estate in question forms part of its capital investments, and the whole of the net income from the said real estate, as well as all the rent and profit-producing property of the defendant, ooth real and personal, has been and is appropriated exclusively for the purposes specified in its act of incorporation, viz., the relief of the sick, and insane poor; and neither the president nor any of the directors of the corporation get any salary or emolument of any kind for managing and superintending the affairs of the institution.</p> <p>7. That the said corporation has no capital stock, and no profit nor other benefit or advantage is in any way derived by any of the contributors thereto from any moneys received by the corporation from any source; but, on the contrary, there is annually more money expended by the institution in carrying out the purposes of its incorporation than is received from all sources of its income, including the rents and profits from the real estate hereinbefore specifically mentioned, and this deficit is made up by annual contributions and donations made to it, from time to time.</p> <p>8. That the said corporation is maintained by voluntary contributions from its members and others, and from the income derived from the capital accumulated from time to time by gift, devises, and bequests.</p> <p>9. That no distinction is made in the reception of patients by the defendant, on the ground of sex or color, and the said corporation is a charitable trust, open to the public indefinitely, and conducted without a view to corporate or individual profit, and is an institution of purely public charity, founded, endowed, and maintained by public and private charity; and this defendant is therefore advised and believes that the real estate, hereinbefore specifically described, is exempt by law from the payment of each and all of the sums assessed against it for the taxes aforesaid.</p> <p>Upon the filing of these affidavits, the plaintiff took rules for judgment for want of a sufficient affidavit of defence; and after argument, the court, without opinion filed, made the rules absolute, entering judgments for the plaintiff for the amounts of the claims.* Thereupon the defendant took these appeals, specifying that the court erred:</p> <p>1. In entering judgment against the defendant.</p> <p>2. In entering judgment for want of a sufficient affidavit of defence.</p>

8 OE PHILADELPHIA COUNTY. No. 208 January Term 1890, Sup. Ct.; court below, No. 146 December Term 1888, C. P. No. 3. On November 17, 1888, Henry Myers brought replevin against Louis Esery and C. A. Esery, for certain furniture. Issue.

1 OF PHILADELPHIA COUNTY. No. 133 July Term 1889, Sup. Ct.; court below, No. 287 September Term 1882, C. P. No. 1. To the number and term in the court below, A. L. Bonaffon brought ejectment against Emanuel Peters and Emanuel K. Peters for three parcels of land in the city of Philadelphia. The defendants pleaded not guilty. At the trial, the plaintiff put in evidence the writ of ejectment and the return thereto, to show possession by the defendants.

1 OF PHILADELPHIA COUNTY. No. 164 July Term 1889, Sup. Ct.; court below, No. 22 March Term 1888, C. P. No. 1. On March 27, 1888, James S. McCord, administrator of Joshua D. Williams, deceased, brought assumpsit against William L. Durant. Issue.

<p>An order opening a judgment entered upon a soire facias to revive and staying proceedings upon an execution issued, to let the defendant into a defence, rests in the sound discretion of the court below, and such order is not reviewable on appeal to the Supreme Court.</p>

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 124 January Term 1890, Sup. Ct.; court below, No. 644 March Term 1888, C. P. No. 4.</p> <p>On March 17,1888, James Whitaker and Theodore Whitaker, trading as James Whitaker and Bi’other, brought assumpsit against Alexander T. Richards and R. J. Watson, upon a bond of indemnity to the plaintiffs against mechanics’ liens, etc., alleged to have been given by the defendants. The defendants pleaded non-assumpsit. Before the trial, the defendant Watson died, and his executors, James Y. and Sallie J. Watson, were substituted as defendants in his place.</p> <p>At the trial on April 17, 1889, the plaintiffs offered in eviclence the bond in suit, dated September 17,1886, the material parts of which were as follows:</p> <p>“ Know all men by these presents, That Alexander T. Richards, contractor, as principal, and R. J. Watson and F. C. Gillingham, trading as Watson & Gillingham, lumber merchants, as sureties, all of the city of Philadelphia, state of Pennsylvania, are held and firmly bound unto James Whitaker and Theodore Whitaker, trading as James Whitaker & Brother, of the aforesaid city, county and state, manufacturers, in the sum of fifteen thousand (15,000) dollars, lawful money of the United States of America,.....”</p> <p>[After reciting that the contract for the erection of a certain building had been awarded by James Whitaker & Bro. to Alexander T. Richards, and stating the condition of the obligation, the bond concluded with the following:]</p> <p>“ Alexander, T. Richards, [seal.] ”</p> <p>“R. J. Watson, [seal.]” “ [seal.] ”</p> <p>The offer of the bond was objected to by the defendants, on the ground that they had denied its execution, and, also, that the bond sought to bind the defendant Watson.</p> <p>By the court: Offer admitted; exception.1</p> <p>The plaintiffs then showed breaches of the condition of the bond by the defendant Richards, among other things, by the filing 'of mechanics’ liens against the building by material men, which liens tire plaintiffs were compelled to pay. Thereupon the plaintiffs rested.</p> <p>The defendants put in evidence the testimony of R. J. Watson, deceased, given upon the trial of a former action upon the same bond, wherein the firm of Watson & Gillingham were sued as such. The witness testified, inter alia, as follows:</p> <p>Mr. Richards came to us and asked us for an estimate for the lumber for this contract, which we did afterwards furnish and deliver. Pie had got the contract, and wanted us to serve the lumber. We tried to persuade him not to take the contract, but he said he had got into it, and he asked me to go on the bond. I was in some doubt about it. Finally he came and said there would be no risk about it. He said Michael Magee had agreed to go on the bond with us, and he would take half the risk. On those conditions I agreed to go on.....</p> <p>Q. State the conditions under which the bond was signed, and under which you went to Mr. Geissinger’s office. A. I had satisfied myself that Mr. Magee' was a good man, and I talked the matter over with my partner, and, although he was loath to do it, he said Mr. Magee was a good man, and he would go on the bond with me and take half the risk, if there was any. In pursuance of this agreement, I impai’ted this information to Mr. Richards, and he made an arrangement by which we were to meet Mr. Magee on the seventeenth day of September, 1886, the day the bond was signed, in 'Mr. Geissinger’s office. Mr. Gillingham at that time was out of town, and I went down to the office, and when I got there I found Mr. Magee sitting inside of the railing. I did not know him personally. I went in and sat down and in a few minutes afterward Mr. Richards came in.....</p> <p>Q. State to the jury what occurred at the time of the execution of this bond, when you were in Mr. Geissinger’s office. A. I went into the room. I saw Mr. Magee there. I sat down, and in a few minutes Mr. Richards came out and spoke to us, and said, “ Mr. Magee, this is Mr. Watson, of the firm of Watson & Gillingham. He is willing to go on my bond.” I then turned to Mr. Magee. Mr. Watson [Richards] turned to me and said, “ This is Mr. Magee, and he is going on the bond with you.” A clerk came out then, and said that Mr. Geissinger was ready, and we went into his office. I was introduced to Mr. Geissinger. I never had the honor of his acquaintance before that. Mr. Magee was acquainted with him, and was not introduced. He was notified that we were there as co-sureties of Mr. Richards.....</p> <p>I was introduced to Mr. Magee. I was aquainted with Mr. Geissinger. I was introduced as a co-surety to go on Mr. Richards’ bond. I asked him to let me see the bond, and I examined it, whatever conditions there were there, which I was prepared to sign, and I said, “ I find the conditions are such as I desire to sign,” and I said, “ Do you desire the firm name, or do you want the individual names ? ” And Mr. Geissinger said, “ I want the individual names.” I said, “ Then this will have to stop, because Mr. Gillingham is out of town.” He says, “ That is of no account; you can sign that and Mr. Gillingham can come down afterwards.”</p> <p>Q. How about Mr. Magee; did he sign there ? A. I thought he did. Q. Why do you say that ? A. I was sure he did. I thought I saw him do it. He took the pen from me, and I was- sure he signed it, and would have sworn to it. Q. How long did you remain in the room after you signed? A. A few minutes. I said, “I suppose now you are ready for me?” And Mr. Richards and myself left, leaving Mr. Magee there.</p> <p>The witness further testified that to the best of his knowledge the names of the sureties were not filled in, in the body of the bond, at the time he signed it, and had they been written in, omitting Magee’s name, he would never have signed it; that his understanding was that Magee was to sign the bond, as well as Gillingham.</p> <p>The defendant Richards testified in corroboration of the foregoing testimony of Watson, and stated that it was his impression that Geissinger was where he could hear, at the time the witness introduced Magee to Watson as his co-surety; that the witness thought Magee had signed the bond, and did not learn that he had not done so until about a week afterward; that the witness had previously offered Magee, as well as Watson & Gillingham, to Geissinger, as sureties, and Geissinger said they were perfectly satisfactory. The defendants showed further, by cross-examination of one of the plaintiffs, that Geissinger was their agent in getting the bond executed.</p> <p>In rebuttal, the plaintiffs called Geissinger, who testified that the names of the sureties were already written in the bond at the time Watson signed it, and that no change was made in it after the signing. In this, Geissinger was corroborated by his assistant, Harold Godman. Geissinger testified,' further, that Watson stated at the time of signing that Gillingham would call in and sign in a day or two, and the witness replied that that would be all right, provided there would be n'o trouble about it; that Gillingham did not call, and the arrangement that he should do so entirely escaped the memory of the witness ; that the witness did not know on what business Magee called at his office on the day the bond was signed. Magee testified for the plaintiffs, denying that he had ever agreed to become a surety in the bond, that he had taken a pen from Watson’s hand after the latter had executed it, or that he had been introduced as a co-surety to Watson. He admitted that on the former trial he stated that he might have been so introduced, and might have forgotten it.</p> <p>At the close of the testimony, the defendants requested the court to charge the jury:</p> <p>1. If the jury find that Richards, the other defendant, agreed with Watson that if Watson and Gillingham would go on the bond, Michael Magee would also go on the bond with them; that, on the faith of this agreement, R. J. Watson executed the bond; that Magee did not execute it; that Geissinger was the agent and architect of the plaintiffs; and that, at the time of the execution by Watson, he had knowledge of such an agreement, the verdict must be for the defendants.2</p> <p>2. If the jury find that Geissinger was the agent of the plaintiffs, and that the bond was executed by Watson and left with Geissinger, upon an agreement that the same should not be complete or binding upon Watson, unless also executed by Magee, your verdict will be for the defendants.3</p> <p>3. The bond, in the body thereof, purported to be executed by Gillingham as well as by Watson, trading together as Watson & Gillingham. Until Gillingham signed it, in the absence of proof of an agreement to the contrary, Watson’s signature did not bind him.4</p> <p>4. The bond, in the body thereof, purported to be executed by Gillingham as well as by Watson, trading together as Watson & Gillingham. If you find that Geissinger was the agent of the plaintiffs; that the bond was executed by Watson and left with Geissinger, with the mutual understanding that the same was not completely executed until signed by Gillingham ; and that Watson never assented to the bond being complete without the signature of Gillingham, your verdict must be for the defendants.6</p> <p>5. If the jury find that Geissinger was the agent of the plaintiffs; that it was agreed between Geissinger and Richards, before the bond was signed, that the firm of Watson & Gillingham should act as sureties on the bond; that Watson agreed with Geissinger that the firm of Watson & Gillingham would act as such sureties; that he called at the office of Geissinger, where the bond was, for the purpose of signing the bond on behalf of the firm; that he then signed the bond, as lie did, at Geissinger’s request, with the understanding between himself and Geissinger that the signature of Gillingham thereto should also be afterwards affixed, and left the bond with Geissinger with this understanding; and that Watson neyer thereafter agreed that the bond need not be executed by Gillingham, the verdict must be for defendants.6</p> <p>6. The verdict must be for defendants.7</p> <p>Answer: I have listened to all that Mr. Johnson has said, and have read the points which the defendants have presented. I must refuse all these points, and will charge you to find a verdict for the plaintiffs for so much of their claim as represents the sum paid in settlement of mechanics’ liens, in excess of what was due to Mr. Richards.</p> <p>There is a vital point of evidence lacking. This defect runs through all the points’. There is no evidence in the case that Watson signed upon any condition that his signature should not be complete and binding upon him, unless Magee also signed. So with Gillingham; there is no evidence that the execution as to Watson was not complete and binding upon him unless Gillingham signed.....</p> <p>The jury rendered a verdict for the plaintiffs for $7,940.77. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendants took this appeal, specifying that the court erred:</p> <p>1. In admitting the plaintiffs’ offer.1</p> <p>2-7. In refusing the defendants’ points.8 *° 7</p> <p>8. In instructing the jury to find for the plaintiffs, as to the amount paid for mechanics’ liens above the amount of the contract.</p>

<p>As it is the duty of the gripman of a traction car to ring his bell at all street crossings: Phila. Traction Co. v. Bernhei ner, 125 Pa. 615, if the plaintiff’s horses, standing near a crossing, are frightened by the ringing and run away, whereby the plaintiff is injured, the gripman is not chargeable with negligence which will render the company liable.</p>

<p>APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 4 OP PHILADELPHIA COUNTY.</p> <p>No. 185 January Term<i!Í90, Sup. Ct.; court below, No. 381 March Term 1886, C.'P. No. 4.</p> <p>On May 19, 1886, Margaret S. Clopp brought trespass for negligence, resulting in personal injuries, against Alfred H. Mear and others, trading as Mear Bros. & Co. Issue.</p> <p>At the trial on November 1, 1887, it was shown that on January 15, 1886, the plaintiff, with a lady friend, went into Second street for the purpose of making purchases of chinaware. Reaching the store of the defendants, the plaintiff saw the articles she desired in a bulk-window, and, as she opened a door to enter, she fell through an open hatchway and was seriously and permanently injured. The arrangement of the doom and the position of the hatchway appear fully in the opinion of this court.</p> <p>At the close of the testimony, the court, Thayer, P. J., Charged the jury in part as follows:</p> <p>The defendants request the court to charge the jury:</p> <p>' 1. If the plaintiff attempted to enter the store of defendants in any other way than that provided by them, which resulted in the injury for which she complains, the defendants are not responsible and the verdict must be for them.</p> <p>Answer: Refused.1</p> <p>2. If the defendants had provided a safe and secure entrance into their store building, through which persons doing business with them could pass in safety, and it was sufficient to enable the pláintiff to avoid the accident, then she was guilty of negligence, and cannot recover.</p> <p>'Answer: Refused.2</p> <p>3. Under all the evidence in this case, the verdict must be for the def on flints.</p> <p>Answer: Iwd.used.3</p> <p>I need not say to you that a man who keeps a store for the sale of goods, extends a general invitation to the public, to everybody who has business in his line and who wants to deal with him, to come inAhere; and every person who wants to purchase goods which he\koe.ps has a right to go in there. His keeping the business io an invitation to everybody who wants to buy, to come in there and buy. And doors are made in stores for the purpose of gbing into stores; that is the object of a door, ordinarily. , N-'.</p> <p>Now there were two doors in this place' There was one door which was a safe door, behind which there was nothing ; and there was another door behind which was this hatchway. Was there anything in the door at which the plaintiff entered, to warn her that it was not a safe door to enter at.. Could she see from where she stood, when upon the step or-elsewhere, that there was a hatchway behind it? Was she guilty of any lack of prudence or care in going, into that. door ? In other words, was she guilty of any contributory negligence (bat contributed to bring about this accident ? Because, as has been argued, if the accident resulted partly from the negligence of the plaintiff herself she cannot recover. 'Now was Mrs. Ciopp guilty of any negligence ? That depends upon whether thfere was anything there which would naturally warn her that’-it was an unsafe door to go in at. Was there any sign, or anything in the appearance of the door, which would operate as £t caution to a person of ordinary prudence not to enter there ? Unless there was some indication to put her upon her guard\ not to enter there, she had a right to enter. If there were signs or indications which would indicate to a man of reasonable care that it was dangerous to enter there, then she had no right to enter there.</p> <p>These are the facts you have to determine. The only duty of the court is to instruct you upon the law bearing upon them. The first question in the case is, were the defendants guilty of any negligence ? It is argued that they had a right to have the hatchway there. Of course, they had that right, but of course, equally also, it was their duty to guard that hatchway against accidents to strangers entering the store. And if they did not guard it in some proper manner, and if the plaintiff was not guilty of negligence in'going in there, then you should find a verdict for the plaintiff, Mrs. Clopp. Now what was the duty of the defendants ? Was it their duty to put a watch there, to caution people against going in there when the hatchway was open ? Or, to keep the door locked when the hatchway was open, so people could not walk in there and walk into a hole to death or dismemberment? Now, I leave all the evidence to you which relates to that subject, and you are to find whether this accident was caused by the defendants’ negligence. If you find it was, and that no negligence was attributable to her, you are to find a verdict for the plaintiff; otherwise, for the defendants.</p> <p>If you should find a verdict for the plaintiff, the only question that remains is what damages you will find.....</p> <p>The jury returned a verdict for the plaintiff for $3,500. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendants took this appeal, specifying that the court erred:</p> <p>1-3. In the answers to the defendants’ points.1 to 3</p>

<p>Churches, meeting houses, or other regular places of stated worship, with the grounds thereto annexed necessary for the occupancy and enjoyment of the same, and all burial-grounds not used or held for private or corporate profit, are exempt from assessment of the cost of laying a city water-pipe in the street in front thereof: See act of May 14, 1874, P. L. 158.</p>

4 OE PHILADELPHIA COUNTY. No. 188 January Term 1890, Sup. Ct.; court below, No. 714 March Term 1888, C. P. No. 4. On March 19, 1888, Francis Gillen, by his father and next friend, Michael Gillen, brought trespass against Salmon B. Rowley and Francis W. Kennedy, trading as the Hero Glass Works, to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. Issue.

<p>APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>No. 192 January Term 1890, Sup. Ct.; court below, No. 70 June Term 1887, C. P. No. 3.</p> <p>On May 12, 1887, Harry J. Zurn, by his mother and next friend, Mary Zurn, brought trespass for negligence against William Tetlow. Issue.</p> <p>At the trial on October 10, 1888, a verdict was rendered for the plaintiff for $3,500. Subsequently, a rule for a new trial was made absolute.</p> <p>At the second trial on April 17, 1889, it was made to appear that in August, 1886, the plaintiff, being then a little over fourteen years of age, entered the defendants’ cotton mill, as a “ spare hand,” to learn the duties of a “ creeler.” At first he received no wages, but when he left subsequently for want of work he was receiving $3 per week. In October, 1886, he was regularly employed as a creeler, at |4 per week. The duties of a “ creeler ” were to wipe the “ fly ” or waste off the roller-beam of the “mule” or “jenny.” There was testimony tending to show that the employment was not dangerous. When the time came to “ wipe down,” the creeler would signal the spinner, who would throw off the belt, and stop the mule; but the creelers were in the habit of wiping the beam when the mule was in motion. About a week after the plaintiff last went into the mill, when cleaning the roller-beam with his hands, while the mule was in motion, his arm was caught by the centre band and badly fractured and mangled.</p> <p>At the close of the plaintiff’s case in chief, the defendant moved for a nonsuit.</p> <p>By the court, Finletter., P. J.: This case was discussed in the court in banc, and we came to the conclusion that the machine itself was not dangerous, and therefore required no special instruction; that the machine, in the manner in which it was to be cleaned, was not of itself dangerous, if the person employed took ordinary care; and therefore, upon the whole case, we came to the conclusion that we would not be satisfied to sustain a verdict in this case upon the evidence; that, inas- ■ much as it was almost impossible to let a case of this kind go to a jury without a verdict being obtained, we have concluded to take the responsibility of entering a nonsuit. At the same time, we are conscious that the Supreme Court may say that ■there is evidence enough in this case to take it to the jury; and while we have to meet that question at some time, we might as well meet it now. I do not think, in any event, we could conscientiously sustain a verdict in this case. It would be continuously setting aside verdicts. The last witness said there is no danger if the boy looks at what he is doing. A minor is required to use his senses ; he is required to look at the machine; he must look at it. This machine was not dangerous, and it could not be prevented, — there was no way, I suppose, really, of preventing a boy putting his fingers into it.</p> <p>—A judgment of nonsuit, with leave, etc.,' having been entered, and a rule to show cause why the judgment should not be taken off afterwards discharged, the plaintiff took this appeal, assigning the entry of the judgment and the discharge of said rule for error.</p>

<p>[To be reported.]</p> <p>(«) The maker of promissory notes defended against an action thereon, upon the ground that their consideration was the purchase of a certain business, the principal value of which lay in a peculiar process of etching on glass, and that he was obliged to give up the business by reason of a written notice, from a person claiming to be patentee of said process, to discontinue using the same or he would “ be dealt with according to law.”</p> <p>1. Standing alone, unaccompanied by an offer to show that the party claiming to have a patent had bi'ought suit and established his right thereto, or had taken any further steps, after giving the notice, to deter the defendant from using said process, or, that in fact the process was ever patented, or even patentable, the written notice to stop using it was not admissible in support of such defence.</p> <p>2. Conceding that a warranty of the seller’s title to said process was implied in the sale, the more notice and threat to sue did not absolve the defendant from liability to pay the notes: a purchaser of personal property, in full possession thereof, cannot refuse to pay for it because a third party has asserted a superior title and threatened to bring suit for the recovery of the property or its value.</p> <p>3. A stipulation in a receipt for a promissory note, given for the prioe of a business sold, to the effect that if it is not paid, or other satisfactory arrangements made, the business shall belong to the vendor, does not give the vendee the’ right to surrender the business in discharge of his note, but merely gives to the vendor an option to repossess himself of the business, in case the note is not paid at maturity.</p>

4 OP PHILADELPHIA COUNTY. No. 225 January Term 1890, Sup. Ct.; court below, Nos. 198, 194 September Term 1886, C. P. No. 4. N On November 15,1887, certain actions of covenant brought in 1886 by John T. Kille against the Reading Iron Works were by writing filed referred to Mr. George Tueker JBispham, as referee, under the act of May 14, 1874, P. L. 166, and the same day the referee’s acceptance and oath were duly filed.

APPEAL BY Gr. W. BARTHOLOMEW, EXR., EROM THE COURT OE COMMON PLEAS NO. 2 COUNTY. No. 182 July Term 1889, Sup. Ct.; court below, No. 828 June Term 1888, C. P. No. 2.

3 OE PHILADELPHIA COUNTY. No. 94 January Term 1890, Sup. Ct.; court below, No. 228 June Term 1889, G. P. No. 30.

<p>[To be reported.]</p> <p>1. When a will, after directing the sale of the testator’s real estate, blends the realty and personalty into one fund for the payment of legacies, and the gift made to residuary legatees is described as consisting of what should be left after the payment of the particular legacies, the latter will be a charge upon the real estate, both because of such blending and because of the form of the residuary bequests.</p> <p>2. If the executor of such will, after a sale of the real estate to himself, subsequently ratified by the parties in interest, settles his account, taking credit for a legacy charged on the land, the interest of which was bequeathed to one person for life and the principal to others at her death, and thereafter treats himself as a trustee of such legacy, it'becomes a personal debt, which, in the event of his death will be a lien upon his property paramount to his will.</p> <p>3. When a will directs that the testator’s debts and legacies shall be paid by his sons out of the farms devised to them, an additional provision that each son shall pay in proportion to the amount- of the valuation placed upon his farm in the will, fixes the rule for adjusting the relative liability of the sons as between themselves, but in no way affects the right of creditors to be paid in full, upon a distribution of the proceeds of sale of one of the farms.</p> <p>4. Such a testamentary charge of debts and legacies cannot affect the right of priority over legacies which is given to debts by § 48, act of February 24, 1834, P. L. 82, nor does it attempt to change the legal rule settling their relation to each other; ■ wherefore, upon distribution in pursuance of a sale under the act of April 18, 1853, P. L. 503, the debts so charged must be first paid in full.</p>

<p>APPEAL BY PHEBE A. SHARPLESS EB.OM THE ORPHANS’ COURT OF CHESTER COUNTY.</p> <p>No. 90 July Term 1889, Sup. Ct.; court below, number and term not given.</p> <p>On September 13, 1888, Phebe A. Sharpless, entered an appeal from the decision of the register of wills admitting to probate a testamentary paper as the will of Ella E. Sharpless, deceased, and on October 29, 1888, presented her petition to the Orphans’ Court praying for an issue devisavit vel non.</p> <p>A citation having been awarded and served, and an answer filed, testimony was heard before the court, Butler, J., who on April 27, 1889, filed the following opinion:</p> <p>“ In case of my death, I order all of my estate to be distributed as follows: To my uncle, Walker Rogers, and my aunts, Caroline Thomson, Harriet Andrews and Phebe Singles, I give three hundred dollars eaeh.</p> <p>The remainder of my estate I order to be equally divided between my uncle Joseph, Aunt Eliza, Harvey, Joseph, Jr., Roger and Lelia' May Fronefield; and I order my cousin, W. Roger Fronefield, to settle up my estate.</p> <p>“ April 8,1887. Ella E. Sharpless.”</p> <p>This paper is alleged to be the last will and testament of Ella E. Sharpless, and was probated by the register of wills of Chester county on September 3, 1888. From the decision of the register, Phebe A. Sharpless, a half-sister of Ella E. Sharpless, appealed, and now asks the court to direct a precept for an issue to the Common Pleas to try a dispute said to have arisen touching the validity of this writing.</p> <p>Ella E. Sharpless died on April 19, 1887, from the effects of a hurt received on the 13th of the same month. When she was about six years old her father died, and soon after her mother went with Ella, her only child, to the home of Joseph M. Fronefield to live. The death of Ella’s mother occurred about two years after this, while they were still at Mr. Fronefield’s house. Before the mother died she requested Mrs. Fronefield, who was her full sister, to take Ella, raise her and care for her as though she were her own child. Ella continued to live in the Fronefield family until her death, with the exception of the time she spent at the Normal school in West Chester. From her parents she inherited quite a large estate. By the will of her mother, Joseph M. Fronefield became her testamentary guardian, and, her father dying intestate, the Orphans’ Court of Chester County appointed him the guardian of her person and such estate as she should receive from him. It seems that her life in the Fronefield family was almost without incident, and was spent as those of children usually are. She was in all respects treated as one of them; the heads looking upon her as a daughter, and the children as a sister. She seems to have been satisfied with her usage as a member of the family, as well as the care and attention given her by her guardian, with, perhaps, a few exceptions, when she complained to her school-mates that he did not give her enough money to buy the necessaries which she thought her estate entitled her to have. Her father, by his first wife, had three children, one of whom resided in West Chester, within six or seven miles of the home of the Fronefields. Between Miss Sharpless and her kin of the half blood there seems to have been no intimacy. It was said by some of the witnesses, on the hearing, that she complained at times that her half-sister, Phebe A. Sharpless, was wanting in the conduct usually exhibited by so near a relative, and “ she did not think she would know her if she would meet her in the street.” Six weeks she lay sick with a fever, but they did not visit her, and her funeral took place without their presence.</p> <p>The cause for this estrangement was not shown on the hearing, but the fact of its existence was developed by the proponents of this alleged will, as a circumstance to support their theory that Miss Sharpless was anxious that those who had neglected her while living should not profit by her death. Of her character, disposition and attainments, but little was shown in the testimony. She seems to have spent her time as girls usually do similarly situated. She was sent to the State Normal School at^West Chester for several years, and appeared to have made a number of friends amongst the girls there. To some of them she seems to have confided her intentions as to the disposition she proposed to make of her property.</p> <p>She reached the age of twenty-one years on December 27, 1886, at which time the money bequeathed her by her mother became her own, without limitation or restriction, as, under the mother’s will, it was given over to collaterals in case Ella should die in her minority without leaving issue to survive her.</p> <p>The name to this paper is admitted by the contestant to be the signature of Ella E. Sharpless. Over this fact, all controversy is therefore at an end. But the contestant says, that some one found the paper upon which Ella E. Sharpless had written her name, and, above this name, forged what the proponents insist is the girl’s will. .The contestant further says that the facts and circumstances, as well as the mystery surrounding the making, finding and producing of this paper, considered along with the condition of Miss Sliarpless’s estate at the time of her decease, in the hands of her guardian, point with certain conclusion to her guardian, Joseph M. Fronefield as the forger; perhaps, not with his own hand, but by some one at his especial instance.</p> <p>The contestant in aid of this proposition called a number of witnesses. Eight of them were young ladies about the age of Miss Sharpless; seven of whom were at the Normal School with her. They were all well acquainted with her, and speak of her habit of writing her name on any piece of paper she could find. It seems to have been an uncontrollable desire of this young lady to write her name on anything, whether it was a fly leaf in a book, a blank piece of paper or a tablet; in fact, on any space large enough to hold it. It mattered not the character or value of the thing to be scribbled on; neither was she particular as to the ownership. Sometimes her name was accompanied with her address, but usually appeared without it. Her practice in this respect is pointed to by the contestant, to show how readily a blank piece of paper, with her name upon it, might be found after her death, to tempt and enable someone whose needs demand it to forge a will above the name.</p> <p>The contestant goes one step further, and calls a witness to show that Ella E. Sharpless, two days before her fatal injury and three days after the date of this instrument, had declared she. had not made a will. This witness was Mary D. Garrett, a lady in middle life, a near neighbor of the Fronefields, on terms of intimacy with Miss Sharpless, and she impressed the court with her sincerity and a desire to be strictly accurate. Miss Sharpless was hurt on the fourth day of the week, and this conversation with Mrs Garrett is said to have occurred on the second. She says Miss Sharpless called at her house about three o’clock in the afternoon, and talked with her more than an hour. She said she had beeu driving somewhere (Mrs. Garrett could not remember where), and intended taking her little sister (by adoption), Lelia Fronefield, home from school with her. About four, she left and went in the direction of the schoolhouse, as Mrs. Garrett supposed, to get the little girl.</p> <p>This recital of facts it is necessary and important to remember, because the proponents introduce testimony later on tending to show that this conversation could not have occurred on that day, even if it ever did occur.</p> <p>Mrs. Garrett says she told her that her guardian proposed giving her some of her estate that spring, and that she intended helping her cousin, Harvey Fronefield, build and furnish his house, and he was then contemplating marriage; “ that the folks up there (meaning the Fronefields) wanted her badly to make a will,” but says she, “ I told them I guess I did not need to do it; I am not going to die yet a while,” or something to that purpose.</p> <p>Then, as to the inducement to the forgery of this paper, the contestant directs the court to the state in which the guardian had this property at the time of Miss Sharpless’s death. Within one month of the time she was of age, or in January, 1887, he filed an account of his management of the estate coming to her from her father. This account was -confirmed by the Orphans’ Court, January 31, 1887. On July 11, 1887, after his ward’s death, he filed an account as testamentary guardian, under the will of the ward’s mother, and charged himself with the sum of $14,021.92. In this account he claimed, amongst others, credits for mone3rs paid his wife for clothing purchased his ward, the sum of $500; cash paid his ward, $2,603.75; cash paid his wife for care and nursing the ward, $2,000, and compensation to himself, $1,500. Exceptions were taken to these items, and sustained in part by an auditor in a report made to the Orphans’ Court. To this report exceptions were taken by the guardian, and, during their pendency, this alleged will was found. Upon an examination of the guardian, it was discovered that he had property sufficient to pay his indebtedness to his ward’s estate, as ascertained by the auditor, although but little of it was invested by him as guardian. This is the contestant’s side of the case.</p> <p>The defence to this is, that Ella E. Sharpless procured some one for her, to write this paper; that she then signed it on the day it bears date, placed it in an old atlas where it was found, and that it is her last will and testament, and must stand until evidence is produced which will warrant a judicial tribunal, in a careful review of the whole case, to allow a jury to set it aside upon the ground that it is a forgery, and further, that Miss Sharpless repeatedly declared she intended making just such disposition of her property by will as this paper makes; that by reason of her feelings of antipathy to her kin of the half-blood, and her relations to the Fronefield family, this disposal of her estate is the natural result of her manifest intentions ; that the discovery of this paper was a mere accident and without any pre-arrangement, as suggested by the contestant.</p> <p>The proponents produced, as they claimed, the person to whom Miss Sharpless would have been most likely to have made known any inclinations which she might have had concerijing the people whom she desired to reward after her decease. This witness was Annie J. Vernon, who resides in Delaware county. They were schoolmates and continued their acquaintance after they parted at school. Miss Sharpless paid her frequent visits, and staid sometimes as long as a month. The last visit was made in February, 1887, on which occasion Miss Sharpless expressed her fondness for her Fronefield relatives, and that she intended to make a will. She spoke of a protracted illness which she had had just about the time she reached her majority, and-was glad she had lived to be able to make a will and leave her property to whom she pleased. In this conversation, she expressed her dislike for her half-sister, the present contestant, and said she was glad she had lived to deprive her of the property she otherwise would have gotten, had she, Miss Sharpless, died in her minority. Miss Vernon testified that similar conversations had been had between them before, but the details of them were not given, with the exception of one about Christmas, 1887, when she expressed herself as “ glad she had lived to cheat her (meaning her half-sister) out of what belonged to her.” She had informed Miss Vernon that she was aware of the disposition the law would make of her estate should she die without a will, and she was very particular about making one to prevent her half-sister from sharing therein. Another witness, Sarah J. Smeadley, called to see Miss Sharpless sometime in January or February, of 1887. In a conversation had on this occasion, Miss Sharpless, referring to her late illness, remarked that she did not know how long she would be here, and that she had not yet made her will. She said she knew it was important, and that she meant to do it soon. Twice in the month of March, 1887, George Weidner testified, Miss Sharp less told him she intended making a will, and that she would go to Philadelphia and get a young lady whom she knew there, to write it. He says he asked her to whom she meant to will her property, and she replied, to the Fronefield and Roger families. This witness was a hired man in the employ of Dr. Fronefield, (who resided with his father,) and claimed to have known Miss Sharpless very well during his two jrears’ service at the place. These three witnesses were corroborated upon the principal points in their testimony, by Eliza A. Fronefield and Dr. J. R. Fronefield, respectively the wife and son of the guardian, and named in this paper as legatees.</p> <p>The proponents endeavor to meet the testimony of Mrs. Garrett, as to Miss Sharpless’s declaration that she had not made a will, by showing that the decedent did not see Mrs. Garrett at her house the Monday afternoon before the accident, and therefore the conversation could not have taken place. This particular day was the 11th of April, and Miss Sharpless’s whereabouts, in the afternoon of that day, are fixed by the fact that a public sale was held by Mr. Fronefield at his house that afternoon, and Miss Sharpless was not away. That the sale was that afternoon there can be no doubt. Several witnesses speak with great distinctness of her being at home assisting in work to be done in the house; and Lelia Fronefield says she can remember that Ella did not come to school for her that afternoon, and that she walked home. It is true, Dr. Fronefield says his sister was not at school this day, and in this there is a contradiction of Mrs. Garrett, as well as of his sister. Mr. Fronefield was called to show the circumstances under which this will was found. How, in looking for a strap to fix some harness, they accidentally pulled from the top of his book case, an old atlas, out of which this paper rolled with a lot of letters and other papers, the property of Miss Sharp-less.</p> <p>This is about all the testimony offered on one side or the other, and from a review of it, the action of the court must be determined. Does it present “such, a dispute as should be submitted to and passed upon by a jury ? ” In Knauss’s App.,-114 Pa. 20, Justice Sterrett says: “In rightly determining that question, there is only one safe and reliable test. If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of this act, has arisen.” The rule to be observed by tlie lower court in making the proper disposition of an application of this kind, has been several times defined by the Supreme Court.</p> <p>The last case passing upon the question, seems to be the one above cited, in which it is plainly held that a dispute, as contemplated by the act, does not exist, if the evidence of the fact as set up here by the contestant is so full of doubt that a verdict in her favor should be set aside on that account. The fact alleged here is, that this paper is a forgery. What proof of it is offered us? The mere fact that the contestant charges a forgery, and the proponents deny it, does not raise a dispute for any tribunal to pass upon. It is the proof of the fact, on one side, and the denial of it on the other, by competent evidence, which raises such a substantial and material dispute as the court must alone consider in determining the application asked for. The signature to this paper was proven by two competent witnesses, to be genuine. This is all the act of assembly, concerning the probate of wills, requires, to admit them of record. The presumption then, is, that it is what it purports to be, although the body of it may not be in the handwriting of the decedent.- Miss Sharpless was given to scribbling her name, and probably left behind her many pieces of paper with her name on them. Evidence of this fact does not raise a substantial dispute, for it is not denied by the proponents. Neither do the further facts of the alleged necessities of Joseph M. Fronefield, and the inducements for him to make this paper, the finding of it, in the manner and the time so seasonable to himself, and the character of it as to size and appearance, raise such a substantial dispute as would entitle its submission to a jUI7-</p> <p>The contestant says all the facts surrounding this transaction are mysterious and full of suspicion. The proponents say, suppose they are, there is nothing to submit to a jury until substantial and material proof is adduced, tending to show that the paper is not the act and deed of Miss Sharpless. In the judgment of the court, the testimony of Mrs. Garrett, unanswered and taken along with the other circumstances already alluded to, would entitle the contestant to the issue she asks. But the proponents insist that the probabilities of this paper being an honest one are with them, and that Mrs. Garrett is mistaken. On the first part of their proposition they point to decedent’s declarations, that this arrangement of her affairs should be effected by her as it is here found; that it is natural that it should be done in this way; that Mr. Fronefield has enough property to enable him to pay the money he owes this estate, and that by the will he profits but little better than he did by the intestate law.</p> <p>Be these suggestions as they may, if the answer of the proponents leaves the testimony of Mrs. Garrett in doubt, the whole of the contestant’s side will be unsatisfactory to the court, and a verdict for her would not be sustained. To disprove her, the proponents call several witnesses who say Miss Sharpless was not away from her home the afternoon Mrs. Garrett says she was at her house and conversed with her. Moreover, they produce one witness, Mrs. Fronefield, who testified that Mrs. Garrett told her a month after Miss Sharpless died, that she, Miss Sharpless, had never spoken to her on the subject of the making of a will. This was denied by Mrs. Garrett. This declaration of decedent was unlike all others she ever made, as testified here, on the subject of how and to whom she intended disposing of her estate. If Miss Sharpless told Mrs. Garrett, in substance, that she had not made a will, could it have been at a time anterior to the date of the paper, and yet Mrs. Garrett believe that it was after its date as she testifies ? This paper being proved as required by the act, it is presumed to have been made by Miss Sharpless, and the burden of showing otherwise is upon the contestant. While the evidence offered by her, and the circumstances surrounding the production of the paper, may be sufficient to excite some suspicion of its honesty, and present a case somewhat remarkable in its character, yet in a review of all offered on both sides, the court cannot feel satisfied that a verdict in her favor should stand. If a jury on this testimony would find a verdict against the proponents of this alleged will, no court justly exercising-its sound discretion could sustain it. It is full of doubt, full of uncertainty, unsatisfactory to the court, and should be to a jury.</p> <p>Therefore, relying on the rule given us, we must find that no dispute has arisen herein, within the meaning of, the act. The appeal is therefore dismissed, and the issue asked for is denied.</p> <p>—The petitioner then took this appeal, specifying that the court erred in dismissing her appeal and denying the issue dévisavit vel non prayed for.</p>

<p>[To be reported.]</p> <p>1. An innkeeper is bound to pay for goods stolen in bis house from a guest, unless stolen by the guest’s servant or companion ; and he is not absolved from this liability, in any case, by the fact that no negligence upon his part has operated to bring the theft about or to render it possible : I-Iouser v. Tully, 62 Pa. 92; Walsh v. Porterfield, 87 Pa. 376.</p> <p>2. But the conduct of the guest, contributing to his loss, whether voluntary or negligent, is always a defence; and his failure to deposit valuables in a safe place provided for the purpose by the landlord, after express notice so to do, and his neglect to make use of sufficient fastenings provided for the security of the room from which they were stolen, are evidence of contributory negligence.</p> <p>3. The provisions of the act of May 7, 1855, P. L. 479, in regard to the places where notice that a place for the deposit of valuables has been provided in a hotel shall be posted, may be said to be mandatory, in the sense that, as they provide for constructive notice, they must be complied with strictly, if constructive notice bo relied on; but, if actual notice be shown, these provisions become immaterial.</p> <p>4. Jurors are not bound to believe an incredible story because no witness contradicts it; wherefore, if the circumstances, surrounding a theft in a hotel, indicate that it could not have occurred if the guest had fastened the door of his room, the question of contributory negligence is for the jury, notwithstanding the guest’s testimony that he did fasten the door is uncontradicted.</p>

<p>[To be reported.]</p> <p>1. Where the principal contractor for the erection of a building has stipulated that upon its completion the building shall be delivered to the owner’, “free of all liens and encumbrances,” a mechanics’ lien cannot be filed by a sub-contractor, for work done or materials furnished by him toward the erection of the building.*</p> <p>2. The only connection between the owner and the sub-contractor being through and by means of the contract between the owner and the principal contractor, the sub-contractor is chargeable with notice of all its terms and stipulations and is bound thereby; he cannot have the benefits of the builder’s contract without accepting its conditions.</p>

<p>1. Where, in the principal contract for the erection of a building, there is a stipulation that the contractor shall permit no liens to be filed against it, such stipulation will deprive a sub-contractor of the right to file a mechanics’ lien: Schroeder v. Galland, ante 277.</p> <p>2. If, after a contract with such a stipulation, a sub-contractor join in a guaranty of performance on the part of the contractor, the fact that alterations of the plans are subsequently made will have no effect upon the sub-conti-actor’s right to file such lien.</p> <p>8. That the sub-contractor did not sign his name at the foot of the guaranty, but wrote it in the blank left at the head thereof for the names of several obligors, is a good execution of the guaranty, and the same will be obligatory upon him as such.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.</p> <p>No. 386 January Term 1889, Sup. Ct.; court below, No. 36 April Term 1885, C. P.</p> <p>On March 14, 1885, the Lehigh Valley Railroad Company, lessee of the Morris Canal, entered an appeal from a judgment for the plaintiff entered by a justice of the peace in an action wherein William H. Beatty, to the use of J. M. R. Shimer, was plaintiff, and the Lehigh Valley Railroad Company, lessee, etc., was defendant.</p> <p>At the trial on January 24, 1889, the plaintiff claimed to recover, inter alia, arrears retained by the company from his pay as a boatman for the year 1884. It was admitted by the defendant that arrears to the amount of $88.32 had been retained for that year, but evidence was adduced that the money had been attached in its hands, and paid over to the attaching creditor. The facts of the case appear in the opinion of the Supreme Court.</p> <p>The court, Schuyler, P. J., charged the jury in part as follows:</p> <p>But the defendant alleges that this money was attached in its hands by proceedings before a justice of the peace in the state of New Jersey; that judgment was entered against it, and that, in pursuance of that judgment, it paid to the attaching creditor, William Whelan, this amount of $88.32. Under these circumstances the question arises, and it is a question for the court, what effect is to be given to the attachment proceedings in the state of New Jersey.....These proceedings come before us in the shape of a certified record. That record shows that an attachment was issued; that the proceedings advanced to a judgment against the defendant, and'that the defendant handed a draft to the justice of the peace for the amount of the judgment, to be applied to its payment.</p> <p>[I say to you, gentlemen, that the record of the attachment proceedings is conclusive upon the plaintiff, to the extent that it shows the existence of such proceedings, and to the extent that it shows a judgment in the proceedings; and, also, to the extent that it shows payment of that judgment. The record does not show that that judgment was satisfied. It shows that a draft was given to the justice of the peace, but whether that draft was ever paid or not is a question which you will have to determine. There is also testimony that the draft was indorsed over to William Whelan. Whether or not William Whelan accepted this draft in payment or full discharge of the judgment, and whether or not the draft was paid, are questions which I submit to you. I say, however, that you cannot go behind the judgment. That is conclusive. Therefore, the only question for }mu, in connection with the attachment proceedings, is, was the judgment in those proceedings paid by the defendant company ? If it was, then the plaintiff cannot recover for the $88.32. If it was not, then the attachment proceedings would not be a bar to recovery in the present suit of the $88.32.] 5</p> <p>• — -The jury returned a verdict in favor of the plaintiff for $165.52. A rule for a new trial having been discharged, and judgment entered on the verdict, the defendant took this appeal, assigning for error, inter alia: 5. The portion of the charge embraced in [ ] 5</p>

<p>APPEAL BY PLAINTIEES EROM THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY.</p> <p>No. 449 January Term 1889, Sup. Ct.; court below, No. 47 August Term 1888, C. P.</p> <p>■ On August 19, 1888, there was entered in the court below, by appeal from the judgment of a justice of The peace, an action of trespass brought by James Roberts and Mary Roberts, his wife, in right of said Mary Roberts, and Elizabeth, Hannah and Ellen Griffith, by their next friend, James Roberts, against I. J. Messinger and David Parsons, to recover damages for the seizure and sale by the defendants, under an execution, of goods and chattels alleged to belong to the plaintiffs. The plea of nil debent was entered by the prothonotary, sec. reg.</p> <p>'The action was tried December 6, 1888, and a verdict rendered in favor of the plaintiffs for $801.55, but after argument a rule for a new trial was made absolute. At the second trial, on March 25, 1889, the following facts were shown on the part of the plaintiffs:</p> <p>Robert Griffith died about 1884, intestate, possessed of household goods worth in the aggregate less than $300, and leaving a widow, Mary Griffith, and three daughters, Elizabeth, Hannah and Ellen Griffith, who are plaintiffs in this case. The widow subsequently married James Roberts, but at what date did not appear. The daughters were all in their minority at their father’s death, and so continued at the time of the trial. There was no administration upon the estate of Robert Griffith, but soon after his death an understanding between the mother and daughters, respecting the ownership of the goods belonging to his estate, was expressed in conversations between them. The only testimony on this subject was that of the three daughters, which was as follows :</p> <p>Hannah Griffith testified : Q. The furniture was household furniture, left in the house at the time of his death ? A. Yes, sir. Q. After he died, was there anything said to you and the rest of the children about your mother’s interest in that property? A. Mother told us that the things were ours now, since father died. Q. At that time was your oldest sister at home? A. Yes, sir. Q. And your younger sister? A. Yes, sir. Q. And your mother ? A. Yes, sir.</p> <p>Ellen Griffith testified: Q. After your father’s death was anything said by your mother to you and your sisters as to what should be done with that property ?» A. She said the furniture was to be ours after father died. On cross-examination: Q. You stated that the day after your father’s death your mother said all these things belonged to you girls? A. Yes, sir. Q. How did she come to say that? A. Because they were father’s things. Q. Did she say that, because they were your father’s things ? A. Yes, sir. Q. Did she use that language ? A. She only said all the things belonged to us girls. Q. Did she say anything about the property belonging to her under the |B00 law ? A. No, sir; she didn’t. Q. Did she say anything about it belonging to her at all ? A. No, sir. Q. You don’t know how long these things staid there in the house? A. No, sir. ......Q. Is that all your mother said abou the ownership of the propert}*-, simply that it belonged to you girls ? A. Yes, sir. Q. How often did she say that ? A. Many times. Q. Do you mean she said it many times on that day, or many times after your father died ? A. She often told us that, after father died. Q. How many times did she say this ? A. I don’t know how many. Q. Do you remember one time ? A. Yes, sir. Q. When was it? A. Just a couple of weeks after father died. Q. What did she sajr ? A. The same that she always said, that the things belonged to us girls. Q. How did she come to say that ? A. I don’t know. Q. Did she say anything else ? A. No, sir. Q. What did she say would be done with the property, Miss Griffith ? A. Nothing; I don’t know nothing she said about that. Q. Was it never talked about what should become of it — whether it was to stay there, or whether you girls were to take it away? A. No, sir.</p> <p>■ Elizabeth Griffith testified: Q. After your father died, was anything said to you children by your mother, as to who should have that property ? A. Mother said the things belonged to us children, the next day after father died. Q. Did she ever say it at other times ? A. She always said it.</p> <p>The goods referred to in the foregoing testimony remained in the household, and were used by the family in the same manner as before Robert Griffith’s death, until the sale complained of in this action. A short time after their father’s death, Elizabeth and Hannah went to New York and remained there, at service, most of the time until the trial, but they had no other home than with their mother’s family, and occasionally they would come back to see her. The youngest child, Ellen, remained continuously with her mother.</p> <p>On April 2, 1888, I. J. Messinger obtained a judgment before a justice of the peace against “ James Roberts and Mary Griffith” for f>8.75, being a balance of rent due for a house belonging to Messinger which the defendants in the judgment had jointly leased from him, on May 15,1887, the lease waiving exemption. A writ of execution was issued upon that judgment and placed in the hands of David Parsons, a constable, who levied thereunder upon the household goods referred to. At the time of the levy, both the mother and the daughter Hannah notified the constable that those goods were the property of the three Griffith children. The execution was then stayed by order of Messinger, and so returned. Subsequently, having given to Parsons a bond of indemnity, Messinger caused to be issued a second execution, placed it in the hands of Parsons, and had him make a new levy upon the same goods. The notice that the goods belonged to Elizabeth, Hannah and Ellen Griffith, was renewed, but under the direction of Messinger the constable proceeded and sold them.</p> <p>The plaintiffs having concluded their testimony and rested, the defendants moved the court to enter a judgment of nonsuit for the reason that the action was not properly brought, the plaintiffs named upon the record being Mrs. Roberts and her husband, in her right, and her three daughters; and for the additional reason that, the testimony showing that the property sold by the defendant Parsons belonged to the estate of Robert Griffith deceased, that no letters of administration were ever taken out in said estate, and no proceedings were instituted by the widow or children to establish any right to said property under the widow’s exemption law, an action for the value of the property, or for damages upon the basis of such value, could not be maintained by any person but a legal representative of the decedent.</p> <p>Thereupon the plaintiffs offered “ to prove that there were no other assets of the estate, no other property of the decedent, Robert Griffith; that the property that was taken by the defendants, as the property of Robert Griffith, included all the property of which he died possessed; that the actual value of the property, as now proven, is under $800; and that, by agreement between the widow of the decedent and the children, she transferred her interest to the children, who are now the plaintiffs upon this record. Offered for the purpose of showing that no creditors of the decedent have any interest in the distribution of the fund; that the assignment to the minor children of the widow of her right and interest in the property, was made before her marriage to James Roberts, a day or two after the death of Robert Griffith, her first husband, for the purpose of investing- them with absolute title to this property; to enable them to maintain this action; to be followed by a motion to amend the record by striking out the name of James Roberts and Mary, his wife, in right of said Mary Roberts.”</p> <p>Objected to, as incompetent and irrelevant, and that there is no tribunal except the Orphans’ Court to decide the question.</p> <p>By the court: Offer overruled; exception.2 As I understand the law, these minor children were in no sense in the actual possession of this property; nor were they the owners of the property; nor did they have such an interest in the property as would carry with it the constructive possession, and, without that, the plaintiff would have no standing in court. For that reason, there being no evidence that the children were in the actual possession of tiffs property, I will grant the motion for compulsory nonsuit.1</p> <p>A motion by the plaintiffs that the judgment of nonsuit be lifted having been argued, the court, Schuyler, P. J., filed the following opinion:</p> <p>We directed a compulsory nonsuit, conceiving that the plaintiffs had not shown in themselves either actual possession of the goods, or such an interest in them as would carry with it the constructive possession, without one or the other of which they could not maintain their action. The principle just stated is in almost the identical language of the Supreme Court. “ To maintain trespass,” says Mr. Justice Thompson, in Weitzel v. Man-, 46 Pa. 464, “ there must be in the plaintiff either actual possession, or the right to immediate possession flowing from the right of property.” But the principle is not seriously disputed ; and ‘the only question raised by the present motion is whether the plaintiffs have brought themselves within it.</p> <p>As to the actual possession, the question is free from difficulty, since by the plaintiffs’ own showing the goods were at the time of the levy in the custody of their mother and stepfather. This, we take it, is conclusive against the plaintiffs, they being all minors, on the subject of actual possession. As well might a babe in arms dispute the possession of its parents.</p> <p>The next inquiry is whether the plaintiffs have shown in themselves such a right of property as gives them a standing in court. In support of that right, great reliance is placed by the learned counsel for the plaintiffs on Walworth v. Abel, 52 Pa. 372; but a very slight examination of that case will show that it is not an authority in point. This is manifest from the first two sentences, in the opinion of the Supreme Court, as follows: “ It is material to bear in mind, in this case, that the widow and heirs are not seeking to recover property of the estate without letters of administration. Ordinarily this cannot be done.” But this is exactly what the present plaintiffs are trying to do. A much stronger case in favor of the plaintiffs is McLean v. Wade, 53 Pa. 146. The grounds of the decision in that case are clearly stated by Thompson, J., who delivered the opinion of the court, as follows: “We have another question, and that involves the plaintiffs’ right to sue in their own names, without administration, in a case circumstanced as this is. Undoubtedly, the estate of a decedent descends to his heirs at his death, subject to the claims of creditors, and the laws in force for administering it. But if there be no debts, and no distribution needed, and only a solitary heir, administration would seem to be useless. In this case, I see no reason why the heir may not assert her rights. Indeed, this point was decided in Lee v. Wright, 14 S. & R. 105, and in Same v. Same, 1 R. 149. This suit was instituted by the heir some twenty-six years after the death of her father. After such a lapse of time, and in the absence of any evidence to countervail it, there is a conclusive presumption of the payment of every species of debt which might have existed against the estate of her father at his decease. This being so, the authorities cited seem to settle the points in favor of the maintenance of this action, there being no creditors.”</p> <p>We have been able to find no reported case, either in our own state or elsewhere, that goes as far as this. The two cases referred to by Judge Thompson as supporting his position are, strange to say, inimical to it. In the first case, Judge Duncan, who delivered the opinion of the court, says: “ It is quite clear, that the children of a decedent cannot bring any action for his property without administration; ” and, in the second case, the same principle is distinctly announced. But we have no inclination even if we had the right, to question the correctness of the decision in McLean v. Wade. It is enough for present purposes that the decision is not in point. In that case, it was made to appear affirmatively that all the debts of the estate had been fully paid, and the case turned upon that fact. In the case at bar, it does not appear whether there are any debts or not. If there were no debts, we think it clear that the burden was on the plaintiffs to show that fact. They are executors de son tort, and the general rule is that an executor de son tort can maintain no action: Lee v. Wright, 1 R. 151. The one exception to the rule is where there are no debts. Surely, to obtain a standing in court, the plaintiffs should bring themselves within the exception, and that is a fair inference from all the cases above referred to.</p> <p>It has been urged, however, that a different rule should prevail where, as here, the entire estate would be swept away under the widow’s claim for the $300 exemption. The argument is that the estate was beyond the grasp of creditors, and that therefore it is immaterial whether any creditors existed or not. But this argument, instead of being an answer to what has been said, introduces an entirely new element into the case, which calls for the application of a new and different set of principles. Thus far we have been considering the plaintiffs’ rights as if there had been no widow and no exemption ; now we are called upon to consider them as derived exclusively from the widow, for the entire amount of the exemption vests in her, without respect to the children: King’s App., 84 Pa. 345.</p> <p>Under the phase which the case now presents, two questions arise. In the first place, did the widow by the death of her husband acquire any title whatever to the goods in controversy without administration? The answer is at hand. In Davis’s App., 34 Pa. 256, Strong, J., speaking of the widow’s claim to the exemption, says:. “ Her rights under the statute are only sub modo. She can obtain property only in the way designated by the legislature. Without an appraisement, she cannot take as a distributee as against creditors.” And in Lyman v. Byam, 38 Pa. 478, Woodward, J., says: “The statutes, which give the widow $300 worth of the estate, contemplate a regular administration.” So also in Neely v. McCormick, 25 Pa. 256, Knox, J., says that “ the widow has neither a general nor special property in any particular goods until after the election and appraisement.”</p> <p>But even if we concede for the sake of the argument that by the death of her husband the widow acquired an absolute title to the goods in controversy, that would not help the plaintiffs without evidence that they had succeeded to that title. Is there such evidence ? That is the second question suggested under the aspect of the case now under consideration. The plaintiffs claim the property as a gift from the widow, and they were the only witnesses examined on that branch of the case. Their entire testimony will be found embodied in the following questions and answers, only premising that the declaration referred to was made soon after their father’s death, in the presence of all of them, and at their home where the furniture, being the goods in controversy, was. To Hannah: “ Q. After your father died, was there anything said to you and the rest of the children about your mother’s interest in the furniture ? A. Mother told us that the things were ours now since father died.” To Ellen: “ Q. After your father’s death, was anything said by your mother to you and your sisters as to what should be done with that property? A. She said the furniture was to be ours after father died.” To Elizabeth: “ Q. After your father died, was anything said to you children by your mother as to who should have that * property ? A. Mother said the things belonged to us children the next day after father died.” We think that this testimony standing alone, and it does stand alone, falls short of establishing a gift. The language of the mother is vague, indicating rather a denial of title than an intention to transfer it. This, in connection with the fact that there is no evidence of acceptance, or of delivery, either actual or symbolical, and with the additional fact that the mother retained possession of the furniture, leaves the theory of a gift with nothing to rest upon.</p> <p>As to the hardship of turning the plaintiffs out of court, it is only necessary to refer to the remarks of Tod, J., in Lee v. Wright, 1 R. 148, a case which is in principle almost on all fours with the present. And in our sympathy for the plaintiffs we must not lose sight of the fact that to permit them to recover would be a hardship on the defendants, for a recovery in this case could not be pleaded against a rightful administrator, who might recover damages a second time : Lee v. Wright, supra, 151. See also Leber v. Kauffelt, 5 W. & S. 445; Holcomb v. Roberts, 57 Pa. 494.</p> <p>1889, March 26th. Motion overruled.1</p> <p>—Thereupon the plaintiffs took this appeal, specifying that the court erred:</p> <p>1. In entering the judgment of nonsuit and refusing the motion to lift said judgment.1</p> <p>2. In refusing the plaintiff’s offer.2</p>

1 OP PHILADELPHIA COUNTY. No. 420 January Term 1889, Sup. Ct.; court below, No. 356 September Term 1887, C. P. No..l. ■ On October 15, 1887, Herman Weiller brought trespass against the Pennsylvania Railroad Company, claiming, in the statement of claim filed, to recover the value of four barrels of whiskey (less forty-five gallons) delivered to the defendant on June 15, 1887, by Moore & Sinnott, at Belle Vernon, Pa., for transportation to the plaintiff, the owner and…

<p>[To be reported.]</p> <p>(«) A writ of habere facias possessionem having been issued upon a judgment in ejectment, the sheriff returned that he found a third party in possession claiming by title paramount to the defendant, setting forth the nature of his claim. The court ordered the sheriff to proceed to execute the writ; whereupon the claimant took a writ of error to the Supreme Court.</p> <p>(b) The recognizance given in connection therewith was conditioned that the “ plaintiff in error prosecute his writ with effect; and, if the judgroent be affirmed, or the writ of error be discontinued or non-prossed, that he pay the debt, damages and costs adjudged or accrued upon such judgment, and -all other damages or costs that may be awarded upon such writ of error,” etc.:</p> <p>1. The recognizance, on the affirmance of the order by the Supreme Court, did not bind the obligors to pay to the plaintiff in the ejectment, as “ damages,” the rental value of the premises during the pendency of the writ of error; such damages, not being included in the judgment, nor awarded upon the writ of error, were within neither the letter nor the spirit of the condition stated in the recognizance.</p> <p>2. Moreover, the statute 16 & 17 Car. II. c. 8, is not in force in this state; and the remedy of the plaintiff in a judgment in ejectment for the recovery of mesne profits of land, retained in possession pending a writ of error to the judgment, or to an award of execution thereon, is that prescribed by act of June 11, 1879, P. L. 125: Warren v. Steer, 118 Pa. 529.</p>

<p>APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 2 OP PHILADELPHIA COUNTY.</p> <p>No. 156 January Term 1890, Sup. Ct.; court below, No. 536 December Term 1887, C. P. No. 2.</p> <p>On January 28, 1888, Emily L. L. Parker filed a bill in equity against Samuel W. Broadbent and Robert C. Broadbent averring:</p> <p>That prior to November 14,1884, the defendants were carrying on the business of photography at, 914 Chestnut street, Philadelphia, and on that date the plaintiff purchased from them a third interest in said business, paying therefor the sum of $6,000, with the arrangement that she should have the right to withdraw the same at any time; that in October, 1886, the firm removed to 1415 Chestnut street where the defendants were still located; that shortly after the removal an account of the business was stated by an expert accountant, showing the interest of the plaintiff to be worth $7,715.88; that prior to July 1, 1887, the plaintiff notified defendants of her desire to withdraw her one third interest from the firm, and requested them to wind up the business so as to permit her so to do; that thereupon the defendants caused a new statement to be prepared, showing the interest of the complainant on July 1,1887, to be worth only $1,521.10; that since July 1, 1887, the defendants continued to carry on the business, have had full control and possession of the books, assets and business, and have refused to render an account or make settlement with complainant for her share.</p> <p>The defendants filed an answer denying that any partnership existed between the complainant and defendants; averring that the plaintiff’s husband, M. E. Parker, was their partner, and that he had entered his interest on the books of the firm in the name of his wife, te protect it from his creditors. The answer averred, further, that the difference in the two statements, noted in the plaintiff’s bill, was largely owing to the depreciation in the value of the assets, caused by the removal of the business from 914 Chestnut street.</p> <p>Issue having been joined the cause was referred to Mr. Joseph, J. Broadhurst, as master, who reported as follows:</p> <p>The facts found from the proofs submitted by both complainant and defendants are as follows:</p> <p>Prior to the fourteenth of November, 1884, the defendants advertised for a partner with capital to purchase an interest in their business of photography. Among others answering the advertisement, M. E. Parker called upon them, and after considerable negotiations be was selected; and, when the terms had been agreed upon, the settlement for the third interest was made with money furnished by Mrs. E. L. L. Parker, and receipts were given therefor by the defendants to her, the first one reading as follows: “Received, November 14, 1884, from E. L. L. Parker twenty-five hundred dollars on account of six thousand dollars which will be in full payment for one third interest in our business; ” and was signed, “ Broadbent Bros.” All other receipts for the remaining payments were given in her name, M. E. Parker attending to the payments.</p> <p>The books of the new firm were opened with Mrs. E. L. L. Parker’s name thereon as one of the firm. The husband, M. E. Parker, went into the counting-room of the new firm and took charge of the accounts, kept the books and attended to the finances. No salary was paid him; he was consulted as a partner would be. Mrs. E. L. L. Parker was not seen by the Broadbents, when the purchase was made, nor was she at anytime seen or consulted about the business. Payments, however, were made to her husband for her, by checks drawn to her order for money drawn out, and after the dissolution negotiations were carried on by the Broadbents, for some time, with her, for a settlement of the share that was coming to her or her husband. These facts show that, while the husband attended to tire negotiations, the Broadbents recognized that the wife, Mrs. E. L. L. Parker, was the real party in interest, and that the husband was only the agent for his wife.</p> <p>Since these proceedings have been pending, however, counsel for complainant and defendants have agreed that upon M. E. Parker filing a disclaimer of any interest in the said firm, or its assets, the proceedings for an account shall proceed, and whatever fund may be found due by the master shall be awarded to the complainant, with the same effect as if the defendants had not made the claim in their answer, that M. E. Parker, and not his wife, was the person with whom defendants had formed and carried on the copartnership business. This disclaimer has been filed with the master and is attached to the report, marked exhibit 1, so whatever effect the pleadings may have had on the issue raised, the agreement of counsel and filing of the disclaimer withdraws from the master the duty of deciding the question of the right of Mrs. E. L. L. Parker to an account. It is therefore the duty of the master to proceed to determine the value of the respective interests of each party in the effects of the firm.</p> <p>The defendants, after the dissolution on June 80,1887, have carried on the business at the location of the firm prior to dissolution. No sale was made of the property; everything remained as it did prior to June 30, 1887, Mrs. Parker only withdrawing. The Messrs. Broadbent had control and possession of everything, and still have possession and control; therefore, whatever valuation is to be placed on the effects is to be taken as of June 30, 1887.</p> <p>—The master thereupon stated an account, ascertaining the shares of the several partners in the net assets, that of the plaintiff'being $5,136.84, and proceeded:</p> <p>The defendants have had possession and control, and have had the use of Mrs. Parker’s share since July 1, 1887; and would, therefore, according to the well-settled practice in equity, be accountable to her for profits or interest for that time, and to charge them with profits would necessitate an accounting to the present time. The complainants have not required this, but have asked the master to allow her interest. There is an abundance of authority for this allowance, without the master setting out the numerous cases in this and other states where this allowance has been made; and even some cases appear where a gross sum has been fixed as a share of profits, without taking an account: Brown’s App., 89 Pa. 139. The complainant will therefore be entitled to interest on the sum of $5,136.84 from the 1st day of July, 1887, until the said amount shall be paid.....</p> <p>A decree in accordance with this report is hereto annexed.</p> <p>—To the foregoing report, thirty exceptions were filed by the defendants. Said exceptions having been argued before the court in banc, they were dismissed, without opinion filed, the master’s report confirmed, and a decree entered as recommended by the master. Thereupon, the defendants took this appeal, filing twenty-nine assignments of error, one of which, the twenty-eighth, specified for error the dismissal of the several exceptions filed to the master’s report.</p>

<p>1. Where a husband and wife joined in the assignment of a policy upon the life of the husband for the benefit of the wife, and the assignee transferred the policy to another and died, in a feigned issue between the second assignee and the widow of the assured, to determine the ownership of the proceeds, the widow is incompetent to testify as to matters occurring before the death of the first assignee: § 5 (e), act of May 23, 1887, P. L. 159.</p> <p>2. Where the assignment of such policy was made as collateral security for tire husband’s note, and provided for the public or private sale of the policy and the application of the proceeds “ to the payment of this note and all necessary expenses and charges,” the expenses and charges contemplated were those incident to the sale of the collateral, and would not include a counsel fee for the trial of the feigned issue.</p>

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 273 January Term 1890, Sup. Ct.; court below, No. 90 September Term 1888, C. P. No. 3.</p> <p>On September 5, 1888, Joseph H. Wunder and Rosanna, his wife, in right of said wife, brought trespass against James H. McLean and Catharine Craven, to recover damages for an alleged nuisance affecting the dwelling of the plaintiff’s wife. Issue.</p> <p>At the trial, on October 8, 1889, the court, on motion of the defendants, made an order that the jury be permitted to view the premises where the nuisance complained of was alleged to exist, and the jury accordingly examined the same. The testimony adduced tended to show the following facts :</p> <p>Rosanna Wunder was the owner of a house and lot, No. 4239 Leibert street, in Manayunk, Philadelphia, and had resided there for thirty years. Catharine Craven owned and occupied the premises No. 139 Mechanic street, and the adjoining premises, No. 141 Mechanic street, were owned by James H. McLean, but occupied by his tenant, Edward Rooney, to whom they were first leased in 1882 or 1883. The lots of Mrs. Craven and Mr. McLean were hounded at the rear by Mrs. Wunder’s property. Upon the lots of the defendants were privies, used by the occupants of the respective premises, for which there was a common cess-pool. According to the testimony for the plaintiffs, this cess-pool was less than two feet, but, according to .the testimony for the defendants, more than three feet, from the wall of the plaintiffs’ house.</p> <p>■ Testimony for the plaintiffs tended to show that for about four years prior to the trial their cellar was made very offensive by foul matter coming through the cellar wall, on the side of the house next to the cess-pool of the defendants, and that the condition of the cellar was at its worst about August 6, 1888, after a violent rain storm which had flooded many cellars in the vicinity. Mrs. Wunder testified that she first complained of the nuisance in 1886. Testimony for the defendants tended to show that her first complaint was in 1888, after the storm mentioned; that soon after its occurrence, Mr. McLean, in consequence of a notice from the board of health, had the cess-pool cleaned out and its walls examined, when they were found to be in good condition; that they were not cemented, as the cleaning out was thought to be sufficient; and that after that cleaning the cellar of the plaintiffs was in good condition. The testimony disclosed the fact that there was another cess-pool near to the plaintiffs’ house, located on property of one Mrs. Higgins.</p> <p>The above-stated facts having been shown, the court interrupted the trial and inquired whether either of the parties had dug down to see what the actual cause of the nuisance was. Both parties said that they had not; whereupon the trial judge asked that a laborer be sent to dig, and see whether there was a leak or not, stating that he could not sustain a verdict either way until such was done, as otherwise it would be but conjecture at the best. Both sides agreeing that such should be done, the case was adjourned till Monday, October 14,1889, at which time testimony was adduced to the effect that, during the interval, a laborer in the employ of the board of health had dug down between the cess-pool and the plaintiffs’ house, and had ascertained that the filth came from that cess-pool. Further testimony was produced to show the extent of the plaintiffs’ damages.</p> <p>At the close of the testimony, the court, Finletter, P. J., charged the jury as follows:</p> <p>[From the evidence you have heard to-day, there can be no doubt that defendants are liable; it is now only a question of damages. Plaintiffs are entitled to compensation for the damages. Plaintiffs are entitled to damages to be computed from the time nuisance began.] 4</p> <p>The defendants request the court to charge:</p> <p>1. That, as to the defendant, James H. McLean, there is no evidence that the premises were out of repair at the time they were rented, and the verdict must be in favor of the said James H. McLean.</p> <p>Answer: Refused.1</p> <p>2. The defendant, James H. McLean, had no right to enter to make repairs during the term of the lease to Edward Rooney, and the verdict must be for the defendant.</p> <p>Answer: Refused.2</p> <p>8. As the evidence shows that at the time of the alleged damage to plaintiff, the premises No. 141 Mechanic street were leased by the defendant, James H. McLean, to one Edward Rooney, the verdict must be for the defendant, as to the defendant, James H. McLean.</p> <p>Answer: Refused.^</p> <p>The jury rendered a verdict for the plaintiffs for $>400. A rule for a new trial having been discharged, judgment was entered upon the verdict, whereupon the defendants took this appeal assigning for error :</p> <p>1-3. The answers to defendants’ points.1 to 3</p> <p>4. The instruction embraced in [ ] 4</p>

8 OF PHILADELPHIA COUNTY. No. 328 January Term 1890, Sup. Ct.; court below, No. 49 June Term 1888, C. P. No. 3. \ On May 7, 1888, Kate Price issued capias in trespass, for libel, against Josephine M. Conway, filing a statement of claim which set out that the plaintiff was the proprietor of the Haven College of Short-hand and Type-writing Instruction, at 1322 Chestnut street, Philadelphia, and that the defendant had caused to be published of and concerning the plaintiff, and…

4 OF PHILADELPHIA COUNTY. No. 468 January Term 1889, Sup. Ct.; court below, No. 405 December Term 1887, C. P. No. 4.

<p>APPEAL BY DEPENDANT PB.OM THE COURT OP COMMON PLEAS NO. 3 OP PHILADELPHIA COUNTY.</p> <p>No. 59 January Term 1890, Sup. Ct.; court below, No. 185 September Term 1888, C. P. No. 3.</p> <p>On November 3, 1888, Thomas Martindale brought assumpsit against the Wilson-Cass Company, filing the following statement of claim, verified by his affidavit:</p> <p>“ That in the month of May, A. D. 1888, in consideration that Thomas Martindale, the plaintiff, had rendered services 'for the Wilson-Cass Company, the said defendant, in and about its business, at its special instance and request, it, the said defendant, agreed with the plaintiff to pay him the sum of $1,000 on demand.</p> <p>“ That the said plaintiff performed all the services, for which the said compensation is claimed, at the special instance and request of the said defendant, but the said defendant has neglected and refused to pay the said plaintiff said amount, or any part thereof, and on the said date the said defendant was indebted to the said plaintiff for said services in said sum, and still remains so indebted for the whole amount thereof.”</p> <p>The defendant filed an affidavit of defence and a supplemental affidavit, made by its president, averring that the plaintiff was one of the directors of the defendant company during the time in which the services mentioned in his statement of claim were alleged to have been rendered; that the services were not rendered to the defendant; that the plaintiff did render certain services to some of' the directors of the said company, consisting of an effort to sell some of the holdings of stock of said directors, but said efforts were unsuccessful, and he failed to make said sale; that, in any event, said services were not rendered to said defendant, or, if rendered, were rendered as an officer' of said company, and there was no consideration for said promise, even if made; that the plaintiff was elected president of the defendant company on April 21, 1888, at a salary of $1,800 per annum, which salary was fixed at the meeting at which he was so elected, he being present and accepting said office upon those terms; that thereafter he attended meetings of the company upon May 8, May 4, May 5; and on May 14, 1888, resigned as president of said company, and at his instance, and with his consent, one Ephraim Young was elected president in his stead, and that thereafter said Thomas Martin-dale did not act as president of said company; that the only services rendered by said plaintiff to the defendant company, for which any compensation was agreed at any time to be paid, thereby meaning services as director, etc., were those as president between the dates above mentioned, at a salary of $1,800 per year; and that the only amount due by the defendant to the plaintiff is the sum of $112.50, being the proportionate part of his salary for his services as president, during the time he acted as such, at the rate stipulated and agreed upon.</p> <p>' A rule for judgment for want of a sufficient affidavit of defence, after argument thereof, was made absolute by the court, without opinion filed, and judgment was entered for the plaintiff for $1,091.25; whereupon the defendant took this appeal, specifying that the court erred :</p> <p>1. In not discharging the rule for judgment.</p> <p>2. In entering judgment against the defendant.</p>

<p>[To be reported.]</p> <p>1. A certificate of acknowledgment of a deed or mortgage, executed by a husband and wife prior to the passage of the act of May 25, 1878, P. L. 149, and which is defective in omitting the venue, in failing to show that the justice was of the proper county, and in omitting to state an acknowledgment by the husband, may be reformed under said act on proof of the requisite facts.</p> <p>2. An answer which avers, by way of defence to a bill praying for such reformation, that the part of the certificate setting out a separate examination by the wife, (which is in due form and needs no reformation,) is untrue in point of fact, is not responsive to the bill, and, if regarded at all, must be treated as a cross-bill to have that portion of the certificate set aside.</p> <p>3. But, if the instrument was in fact executed by the wife voluntarily and without coercion, with a full knowledge of its contents, and for a valuable consideration actually received, and the transaction was free from all fraud, equity will not set aside the certificate of the wife’s separate examination, though the same may be untrue.</p> <p>4. A certificate of acknowledgment is a judicial act, which, in favor of bona fide purchasers without notice, is conclusive of the facts therein stated, and, as to other persons, in the absence of proof of fraud or duress connected with the acknowledgment, it is also conclusive; and this rule is applicable to mortgages as well as to deeds.</p>

<p>APPEALS BY J. E. OBERHOLTZER FROM THE COURT OE COMMON PLEAS OE LEBANON COUNTY.</p> <p>Nos. 244, 245 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On February 2, 1886, John W. Gibble made an assignment of bis property for the benefit of creditors. Among the assets thereby transferred, was a farm containing 216 acres and 92 perches, of which 82 acres and 10 perches lay in Lancaster county and the remainder in Lebanon county. The buildings erected upon the farm were on the Lebanon county part of it. The entire. farm was subject to a purchase money mortgage for $6,000, in favor of Christian C. Snyder, which was the first lien upon the whole.' Other liens, subsequent thereto, in favor of Thomas Logan’s estate and other creditors, were entered in Lebanon county and bound that part of the land lying therein ; and Jacob F. Oberholtzer held two judgments entered in Lancaster county, one of them in favor of himself individually, and the other as executor of Henry Oberholtzer, deceased, which were the second and third liens, respectively, upon the Lancaster county part of the land.</p> <p>In the execution of their trust, the assignees obtained from the Court of Common Pleas of Lebanon county an order for the sale of all the real estate of the assignor. Under this order they sold said farm to John G. Stauffer, subject to the $6,000 mortgage, which was to be deducted from the amount of the purchaser’s bid. The sum realized to the assignees from the sale was $2,875. The Lancaster county lien creditors afterward released the land so sold from their liens, reserving the right to claim payment of the same out of the fund realized, with like effect as though said liens were discharged by judicial sale.</p> <p>On June 7, 1888, the account of the assignees having been settled and confirmed, the court below appointed Mr. Gharles M. Zerhe auditor, to make distribution of the balance shown thereby among the creditors entitled to it. The auditor found that the value, by the acre, of the Lancaster part of the 216 acre tract was far in excess of the value of the Lebanon portion, the former being worth $96 per acre, at least, and reported a distribution by which the proceeds of sale of the farm in the hands of the assignees, and the income received by them therefrom, prior to the sale, were apportioned between the Lancaster county and the Lebanon county liens, upon the basis of that valuation. Exceptions to his report, after argument, were sustained by the court below, in an opinion by McPherson, J., holding, inter alia, that the farm must be valued as a whole at so much per acre, and the expenses of the trust apportioned upon that basis, and that the income must be divided according to the same rule, and not according to the value of the Lancaster land as a detached tract; referring the report back to the auditor to modify his distribution in accordance with the opinion. The auditor thereupon filed a second report making distribution in accordance with the opinion of the court, which report the court confirmed, ordering distribution as therein made.</p> <p>Upon appeals by Jacob F. Oberholtzer, executor of Henry Oberholtzer deceased, and Jacob F. Oberholtzer, individually, at Nos. 287, 288 January Term 1889, the Supreme Court sustained. the rule laid down in the opinion of the court below for the valuation of tire farm and the apportionment of its price, but reversed the final decree upon another point, remitting the record for distribution in accordance with the opinion of Mr. Justice Williams, filed March 18, 1889 : Oberholtzer’s App., 124 Pa. 583.</p> <p>Upon the return of the record to the court below, the case was again referred to the auditor, to make distribution in accordance with the opinion of the Supreme Court, and on April 22, 1889, the auditor filed a third report, in part as follows :</p> <p>Mr. Funck, as counsel for the Oberholtzers, presented the following points for the consideration of the auditor and also made the offers of testimony accompanying said points:</p> <p>“ 1. The auditor is respectfully requested to decree the proceeds of the land of the Stauffer farm, estimated at its actual value, lying in Lancaster county, after deducting the proportionable part of the expenses of the trust, etc., to the Oberholtzer judgment entered in that county, all the other liens in that jurisdiction having been paid; the value of the Lancaster county land to be determined by the evidence already taken by the auditor, and such further testimony as any of the claimants to that fund may see fit to submit.</p> <p>“ 2. If the auditor cannot distribute the fund produced by the sale of the land of the Stauffer farm, lying in Lancaster county, as requested by the preceding point, then we ask him to distribute the proceeds of the entire farm among the lien creditors of the two counties, applying to the Lancaster county liens the proceeds of the land lying in that jurisdiction, after determining the amount thereof according to the actual relative value of each tract, assuming that the entire farm was sold at $45.00 per acre.</p> <p>“The attorney of Jacob F. Oberholtzer, executor, etc., of Henry Oberholtzer, deceased, now proposes to call John Stauffer, the purchaser of the farm, to prove by bim that the land of the farm which he purchased, lying in Lancaster county, is worth $100 per acre, and that he would have paid for it that sum if the same had been sold separately by the assignees; and that the land of the same farm, lying in Lebanon county, is not worth, more than $35.00 per acre, and that he would not have offered that much for it if the same had been sold by itself by the assignees.”</p> <p>As the auditor’s powers in this distribution are limited to a “ distribution in accordance with the opinion of the Supreme Court,” by which alone he must be guided, he cannot consider the points submitted. The points submitted by Mr. Funck, as well as the offers of testimony, made by him, are therefore overruled.</p> <p>Mr. Benson submitted the following for the consideration of the auditor:</p> <p>“ Both reports of the auditor decreeing a certain distribution, were reversed and set aside and an order was made directing a new distribution, in accordance with the opinion filed in this case, and a distribution must be made of the proceeds and products and income of the land (Stauffer farm) in accordance therewith.”</p> <p>Mr. Benson also claimed, that under the opinion of the Supreme Court, the auditor must value, apportion, ascertain and distribute the income of the Stauffer farm, according to the rule laid down by the court in respect to the valuation of the land itself; or, in other words, that he must ascertain the average income, per acre, and then credit each part of the farm with such part of the whole income as its acreage would entitle it to.</p> <p>The order is, “ to make distribution in accordance with the opinion of the Supreme Court.” To ascertain what this order means, tlie auditor is of the opinion that it will be necessary to review the matter contained in the record from and including his first report of distribution. In his first report the auditor found as a fact, from the testimony then before him, that the income of the Stauffer farm must be apportioned according to the valuation he had put upon the Lebanon and Lancaster lands of that farm, respectively. He ascertained the respective amounts of that income and distributed them accordingly, decreeing to the Logan mortgage $612.23, as the net income of the Lebanon lands, and to the Henry Oberholtzer judgment $298.07, as the net income of the Lancaster lands. To this finding and distribution no exceptions were filed. The court below, however, in an opinion filed December 20,1888, directed that the income of the Stauffer farm must be divided by the rule laid down by it in the valuation of the farm as a whole. This direction of the lower court was made a part of the 8d assignment of error by the plaintiff, the said Jacob Oberholtzer, executor, etc., of Henry Oberholtzer, deceased, and this assignment of error is sustained by the Supreme Court in the opinion filed March 18, 1889. Nor is this all. The Supreme Court reverses “ the decree of distribution as to the fund raised from the sale of the Lancaster county land ” of the Stauffer farm. There is no rule laid down by the Supreme Court in relation to the division of the income, nor is there any reference to the income in the opinion, unless the expression “ sales of both real and personal estate ” in the second sentence, can be construed as such. -</p> <p>The auditor is therefore of the opinion that the rule laid down by the Supreme Court, as to the valuation of the land itself, does not apply to the income, and that his first finding and distribution of the income has not been disturbed. What the purchaser had regard to, the farm as a whole, in bidding,— its waste lands and fertile fields, etc., comprising one farm,— has no relation whatever to the quantity and value of the crops raised on the respective parts of the farm, which were not sold for a lump sum. The quantity and value of crops depend upon the fertility and productiveness of the soil. An acre of rocky hill-top, used as pasture, covered with brambles and without water, when sold in connection with other and fertile acres for a lump sum, may, under certain circumstances and for certain purposes, be valued at the average price per acre, but it does not follow that the crops raised on the former are as good, large and valuable, by the acre, as those raised on the fertile land. The valuation put upon the land and the crops was based upon the testimony as to the value of the crops the first and second years, the fertility and quality of the respective parts of the farm, the amount of waste and comparatively waste land, etc. Had accounts of the crops been submitted, there is no doubt that they would have shown the value of the Lancaster crops to be in excess of the auditor’s estimate. There was testimony that even the good Lebanon land “does not yield as good returns ” as the Lancaster land. It can be shown that a calculation based upon the first and second years’ crops, allowing a certain sum for the value of the pastured lands, and the acreage of the available lands of this farm, will establish, substantially, the accuracy of the auditor’s valuation of the land and the crops or income. His valuation of the land, for reasons given in the opinion, was held to be erroneous, but as those reasons do not apply to the income, he will adhere to his first finding in regard to the income and his distribution thereof, and will distribute it accordingly, subject to the proportionate shares of the costs and expenses incurred since tbe filing of the first report. The fund realized from the sale of the real estate, or land of the Stauffer farm, will be. divided strictly in accordance with the opinion of the Supreme Court, subject to proportionate shares of all charges, costs and expenses of the trust, former audits, appeals, and this audit.....</p> <p>To this report, Jacob F. Oberholtzer filed exceptions, alleging that the auditor erred: 1. In not distributing the proceeds of that part of the land lying in Lancaster county, in accordance with the first request of the exceptant, quoted in the report.8 2. In not distributing the proceeds of the entire farm as requested in the second request of the exceptant.8 The executor of Thomas Logan, deceased, excepted to the action of the auditor in distributing the income of said farm according to the relative value per acre oi the land, as found by the auditor in his former reports.1</p> <p>After argument, the court, McPherson, J., filed the following opinion and decree:</p> <p>The exceptions of Jacob F. Oberholtzer, individually and as executor, are overruled. The precise question they raise was decided by the Supreme Court in this very case: 124 Pa. 588, and a re-argument thereon refused.</p> <p>The exceptions of Thomas Logan’s executor must be sustained. It is undoubted, that the income of the Stauffer farm must go to the liens, which would be entitled to the proceeds of the land if sold: Wolf’s App.., 106 Pa. 545. That is, in the present case, part must go to the Lancaster creditors and part to the Lebanon creditors. How, then, is the division to be made ? How are we to determine the income per acre ? If it were possible to take each acre separately, and say specifically just how much money and labor were.put upon it, and then to say specifically just how much it yielded in grain or other crops; if, further, each acre could be charged with its exact share of the general expenses of the farm, and could be credited with the money received from the precise articles it produced, Ave might then feel that the result thus reached was, nearly enough, the income of that acre. For the present, however, we must be content with estimates, and the method which commends itself to us follows the rule by which the value of the land itself was reached, viz., the rule of averaging the farm as a whole. Why the income should be divided among the lien creditors as if the Lancaster land was worth $100 an acre, while the proceeds derived from the sale of the land itself is divided among them at the rate of $45 per acre, we do not understand. In the case before us we have simply to choose between methods of estimating, and in our opinion the method approved by the Supreme Court, in apportioning the money derived from the sale of the land, ought also to be applied in apportioning the income of the land. This particular question was not formally decided in the appeals heretofore taken. As the appellant’s paper-book states, only two questions were then raised and argued, and this is not one of them.</p> <p>The report is referred back to the auditor, with instructions to distribute the income of the Stauffer farm in accordance with this opinion.</p> <p>The auditor accordingly reported an amended distribution, appropriating the income, as well as the proceeds of sale, in accordance with the opinion of the court below, and on January 6, 1890,,the court, McPhekson, J, entered a decree confirming said report of distribution, and ordering that the money in the hands of the assignees be paid out as therein directed. Thereupon Jacob F. Oberholtzer, as executor and in his own right, respectively, took these appeals, specifying that the court erred :</p> <p>1. In sustaining the exception of Logan’s executor.1</p> <p>2, 3. In not sustaining the appellant’s exceptions.8 3</p>

APPEAL BY A. B. YEAGER EROM THE ORPHANS’ COURT OE BERKS COUNTY. No. 387 January Term 1889, Sup. Ct.; court below, number and term not shown. Held: from the time of passage of the act to this time, that the statute does not affect mortgages and such other rights and estates in hands as are paramount to the titles themselves. This act has been before our courts many times. Our reports are filled with opinions and decisions as to the construction of the statute.

<p>APPEAL BY DEEENDANT EROM THE COURT OE QUARTER SES-L SIONS OE MONTOUR COUNTY.</p> <p>No. 62 January Term 1890, Sup. Ct.; court below, No. 110 May Term 1888, Q. S.</p> <p>On May 29, 1888, the grand jury returned as a true bill- an indictment charging William Switzer with having unlawfully erected, set up and maintained “ a building in, on, upon and across a certain ancient and common highway,” in the borough of Washingtonville, known as Third street, to the great damage and public nuisance, etc. The defendant pleaded, not guilty.</p> <p>At the trial on September 16, 1889, the commonwealth, to prove the locus in quo to be a public highway, offered in evidence a map having the following recital: “ Draft of the Bor■ough of Washingtonville as originally laid out, Anno Domini 1818, together with such alterations as have legally been made ; as also the draft made of the several streets, as established by the town council'upon tire same, from surveys made in 1872 by H. C. Mills, approved the 3d day of October, 1887,” signed bjr J. B. Seidle, A. G. Corson, John Andy, Council, Charles Mowrer, Burgess.</p> <p>The defendant objected to the admission of map, (1), that the original draft from which this was alleged to be made was not produced, there being no evidence to show why it was not produced; (2), that this draft could not be evidence of the existence of a street prior to the date of the making of the draft itself; (3), that it was incompetent and irrelevant for the purpose for which it was offered.</p> <p>By the court: Objection overruled, offer admitted; exception.1</p> <p>There was testimony that the premises owned by the defendant, abutting upon the street, had been occupied for many years by tenants under him, and that at the time the alleged obstructions were erected he was a boarder with his tenants. There was also testimony on the part of the defendant that the obstructions, if any, were caused by an extension of a part of the dwelling-house and the erection of certain out-buildings, all of which were the acts of the tenants.</p> <p>At the close of the testimony, the court charged the jury in part as follows:</p> <p>We would not send you out to-night, were it not for the fact that we will most likely need a jury early in the morning in another case, and with the hope that you will be able to agree we place this case in your hands this evening.....</p> <p>[Here in this case it would, appear that in the year 1818 the town or the village of Washingtonville was laid out, and the streets, including Third street or East street, as it was called, were opened to the public travel, but unfinished. There were ( also parallel streets, as you will notice bjr the draft, the Weidenhammer and other drafts.] 8 They were also laid out, as has been pointed out to you. [The evidence upon the part of the commonwealth is, that this Third or East street was used by the public, some of the witnesses say, as much as some of the other streets parallel with it, and worked or improved and repaired by the authorities of the village as much as some of the other parallel streets.] 3</p> <p>It is scarcely possible in a village like'Washingtonville, with a street running in the direction that this did, that it should be used as a thoroughfare by any large number of persons; that they have been seen at any one time to pass and repass upon it, as you observe here on Mill street in the borough of Danville. It would not be reasonable to expect it; it is not to be expected and not necessary; but, if it was used by even a few of those who are located in that community or vicinity, who reside there and who had occasion to use it; if it was necessary for them to use it, and if they did use it; then it was a sufficient use and acceptance by the public. These are questions entirely for you under the evidence, whether it was used at all, and whether it was dedicated by the original owner at the time, or at any time, during its existence as a village or a borough, and was accepted, or if it was used for a period of twenty-one years; we say, in either case that Third street would be a public highway. [If that land was dedicated to the public use as a public street by the owners of the land when the village was laid out, or the town plot made; and if their lands were divided into lots, and the lots run off and sold to the line of this Third street, and it was used by the public to any extent, then it would be a* public highway.] 4.....</p> <p>[A deed has been offered in evidence here.....with recitals, back to former owners for a long period of time, showing that these lots were sold to the line of this street, at least on one side, reciting and mentioning East street. Now, if the owner or owners of these lots sold and conveyed them-, to individ uals, prior to the ownership of William Switzer, he being now the grantee of the former owners is bound by their dedication if they so dedicated and sold it. He would be bound, he would stand in the shoes of his grantors; he could not revoke or withdraw that dedication, any more than they could.] 5.....</p> <p>Now, we say that if from 1818, or if for any period of twenty-one years continuously, the public had a right before that to the public use of this street, adversely or against the interests of the owners, that the occupation of it by these ladies and their buildings will not give them a title to it, if it was dedicated to the public, and was accepted and used by the public for a single day before they built there in 1846 or 1847, or subsequently. They moved there, I believe, in 1846 and put these buildings there subsequently. But, if this street was dedicated to the public a single day previously to that time, and was used by them, the dedication was complete; and their user of it for a period of more than twenty-one years will give them no right or rights as against the public. It is all a question of fact for you.....[And we direct and say to you that the borough of Washington ville, or the town or township of Derry, previous to its incorporation in 1870 or 1871, was a village or town laid down by plot or draft, and the town lots, if the evidence is to be believed here, were sold accordingly to that plot or draft.] 6</p> <p>[You must decide, gentlemen, under all the evidence in this case. You have nothing to do with the law or with the severity or unseverity of the sentence. Some comment has been made on both sides about what the result may be. It is usual in such cases that the court, in giving sentence, should specify particular compliance with these several rules, directing the defendant to remove the obstructions sufficiently to permit the public to pass and repass as they ought and have been accustomed to do as of right. It is not necessary, in such a town as the village of Washington ville, that a thoroughfare fifty feet wide should be open and fit for travel throughout its entire breadth from sidewalk to sidewalk, or that it should be paved and smooth walks made, but it should be open so that convenient passage if necessary may be made. In our country roads on our hillsides or our high precipices and in our deep ravines in Pennsylvania, we may have some roads that are only required to be opened eight feet wide, wide enough for the passage of pedestrians and of a single vehicle in some places. In that place in Washingtonville, no doubt the removal of all the buildings on the street, except the addition to the dwelling-house, would be amply sufficient, permitting .all parties to use it, to pass and repass with convenience and pleasure, and the sentence of the court would be under our discretion and governed accordingly.] 7 [You have nothing to do with the result, the judgment of law, as it is called. It is your duty, if you believe that the evidence warrants a conviction, if you believe that this street was a public street, was intended for the good of that town and of the people in that locality; if you believe that it Avas devoted to public use, it is your place to say so by pronouncing the defendant guilty. If it was not, then you are to return a verdict of not guilty. It is entirely a question of fact for you, gentlemen, and Ave place it in your hands with what we consider sufficient instructions.] 8</p> <p>[There is a lease in evidence here that we have not spoken of. The attorney for the defendant desires us to say something to you in that respect. It appears that these ladies were tenants of William Switzer. You will judge from that whether he had knowledge of the erection or construction of this building. He was living in town where he could see the building, pass and repass it every day. If he did observe its erection and did not dissent; if he saw that being erected in that street and did not dissent, he would be liable; he would be held under the law to have assented; and, if the parties who-erected it had any arrangement with the defendant, under such a situation of facts he could be made to pay for the erection. You will judge whether he is proved to have consented to the erection of these buildings. If he has, he would be guilty equally with the women who have testified that, they did it.] 9</p> <p>The jury returned a verdict that the defendant was guilty. A rale for a new trial having been discharged, the court sentenced the defendant to pay a fine of one dollar, to pay the costs, to remove the nuisance complained of within sixty days, and to stand committed, etc. The defendant then took this appeal, assigning for error: 1. The admission of the commonwealth’s offer.1 2-9. The parts of the charge embraced ip [] 8 to 9</p>

<p>APPEAL BY Vi. A. FORD ET AL. FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY.</p> <p>No. 147 January Term 1890, Sup. Ct.; court below, No. 169 July Term 1889, O. C.</p> <p>On October 14, 1889, the trustee’s account in the estate of Charles T. Ashton, deceased, was called for audit, when it was made to appear as follows:</p> <p>Jonathan Ashton, father of Charles T. Ashton, died August 5, 1859, leaving a will dated July 4, 1859, duly admitted to probate, in which after certain particular bequests he provided as follows:</p> <p>“ I order and direct my executor, hereinafter named, to convert my personal estate into money, and sell and dispose of my real estate, either at public or private sale, within 2 years next after my decease, for the highest and best price that can be gotten for the same, and to grant and convey the same to the purchaser or purchasers thereof, his, her, or their heirs and assigns, without any liability on the part of suob purchaser or purchasers to see to the application of the purchase money therefor; and the moneys arising from such sale or sales thereof, together with all other my monies from whatever source, I give and bequeath unto my executor hereinafter named, his executors and administrators, In Trust for. the uses, intents and purposes following; that is to say, In Trust as to one equal third part thereof to invest the same upon good and sufficient land security, and the interest and income thereof to be paid to my wife Mary Ashton during all the term of her natural life ; and from and immediately after the decease of my said wife Mary Ashton, the said one third part of my estate shall go to my said three children, Margaret Ellen, Charles T. and Francis Ashton, subject to the same trusts and limitations as are hereinafter particularly set forth and declared with respect to their shares of my estate.</p> <p>“ One equal third part of the residue and remainder of my said estate I give and bequeath unto my said executor hereinafter named, his executors, administrators and assigns, In Trust to invest the same upon good and sufficient land security, and the interest and income thereof to pay to my said daughter' Margaret Ellen Ashton during all the term of her natural life,” etc., [ut infra.]</p> <p>“ One other equal third part of the said residue and remainder of my said estate I give and bequeath unto my said executor hereinafter named, his executors and administrators, In Trust to invest the same upon good and sufficient land security, and the interest and income thereof to pay unto my said son Charles Theodore Ashton during all the term of his natural life, and from and immediately after his decease, then In Trust to and for the only proper use and behoof of all and every the child or children he may leave, or • the lawful issue of any of them who may then be deceased leaving such issue, and in default of such issue, or of any grandchild or grandchildren, the issue of any deceased child of him the said Charles T. Ashton, then In Trust to and for the use of the right heirs of him the said Charles T. Ashton in equal shares.</p> <p>“ And the other and remaining equal third part of the said residue and remainder of my said estate I give and bequeath unto my said executor hereinafter named, his executors and administrators, In Trust to invest the same upon good and sufficient land security, and the interest and income thereof to pay unto niy said son Francis Ashton during all the term of his natural life,” etc. [ut supra.]</p> <p>The testator left surviving him a widow, Mary Ashton, and three unmarried children, Margaret Ellen, Charles T., and Francis A. Margaret Ellen married, survived her husband, and died in June, 1873, leaving two children, William A. Ford and John A. Ford. Francis died in 1886, intestate, unmarried and without issue. Mary Ashton, the widow, died in 1887. Charles T. Ashton married in 1888, and died on June 14, 1889, leaving a widow, Bridget Ashton, but no issue.</p> <p>The fund for distribution was the proceeds of real estate sold under the provisions of the will, and the one half thereof was awarded by the auditing judge to Bridget Ashton, widow of the decedent, and the other half in equal shares to William A. and John A. Ford, the decedent’s nephews.</p> <p>Exceptions to the adjudication being filed by William A. and John A. Ford, and argued before the court in banc, on November 23, 1889, the following opinion was filed, Pen-rose, J.: ,</p> <p>The distribution directed by the adjudication is entirely in accordance with the authorities. Where the subject of the gift is personalty, the word “heirs,” in a limitation to the heirs of a first taker, either substitutionally or by way of succession, is understood as meaning the persons entitled under the statute of distributions in case of intestacy, including therefore, a widow: Jacobs v. Jacobs, 16 B. 557; Porter’s Trusts, 4 K. & J. 197; Mounsey v. Blaymire, 4 Russ. 384. It is true that in England such a gift does not include a husband, since he takes the estate of the wife by virtue of his paramount right as husband, and not under the statute: Doody v. Higgins, 2 K. & J. 729; In re Craven, 23 B. 333; but the law is otherwise in Pennsylvania: Patterson v. Hawthorn, 12 S. & R. 112; Gibbons v. Fairlamb, 26 Pa. 217. And, though husband or wife cannot take real estate under the designation of heir, their interests in that case being for life only: Ivans’s App., 106 Pa. 176; Dodge’s App., 106 Pa. 216; the reason does not apply where, as in this case, the will works a conversion : Eby’s App., 84 Pa. 241.</p> <p>Exceptions dismissed, and adjudication confirmed absolutely.</p> <p>—The exceptants thereupon took this appeal, specifying that the court erred in not awarding the whole of the fund to the exceptants.</p>

<p>[To ]je reported.]</p> <p>1. While not liable for the wilful and independent trespass of his servant, a master is responsible civilly for the manner in which the servant does the work that lie is employed to do, and it is the character of the employment when an act is done, not the private instructions to the servant, by which the master’s liability is to be determined.</p> <p>2. Where a master, claiming ownership of an organ in the possession of another, sent his servants to the house where the organ was, to take possession of it himself, and the servants entered and took the organ by force and violence, the master was liable for their trespass, although in committing it they violated his express instructions.</p>

Nos. 44, 45 January Term 1890, Sup. Ct.; court below, No. 179 January Term 1887, and No. 183 June Term 1887, Q. S. On January 31, 1887, Peter Staub and others, inhabitants of Kingston township, filed a petition to No. 179 January Sessions 1887, setting forth the necessity for a road in Kingston township, “ to begin at the Dallas and Kingston turnpike near Rice’s fulling mill, and to end in a road leading from Rice’s fulling mill toward Wyoming, near the house of Peter Staub;…

Nos. 73, 74 January Term 1890, Sup. Ct.; court below, Nos. 187jT88 May Term 1882, C. P. / / On March 28,1882, two actions of debt on policies of insurance were brought against the United Brethren Mutual Aid Society. At the time of the trial reported here, the plaintiff in one action was John F. O’Hara; and in the other, John F. O’Hara, administrator of Mary T. O’Hara, deceased.

<p>APPEAL BY THE PROVIDENT, ETC. 00., GUARDIAN, FROM THE ORPHANS’ COURT OE CHESTER COUNTY.</p> <p>No. 143 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On April 29, 1889, the account of Milton Latsbaw, executor of the will of Eliza Yost deceased, exhibiting a balance for distribution amounting to §26,101.32, was confirmed by the court below, and Mr. JS. D. Bingham was appointed auditor to make distribution. The balance for distribution was increased before the auditor, by a surcharge made at the request of the accountant, to §30,101.32.</p> <p>The following facts were found by the auditor:</p> <p>Eliza Yost died on November 20, 1887, unmarried, leaving a will dated August 18, 1887, and a codicil thereto, dated October 5, 1887, which were duly admitted to probate on December 13, 1887. The will, after making certain bequests which were to be paid “to the' respective parties out of the first money that shall come into the hands of my executor, hereinafter named, from any part of my estate, either personal or real or both, and to be paid in one year or sooner from date of my decease,” provided:</p> <p>“I bequeath unto each of Levi B. Shengle and his wife Margaret Shengle’s children, living at the time of my decease, and those to be born unto them after my decease, the sum of one thousand dollars, to be paid to them, respectively, on arriving at the age of twenty-one years, and in ease either of them die before attaining the age of twenty-one years and without lawful issue, then I direct the share of him or her so dying be given to the survivor or survivors of them, share and share alike. If Susanna Finkbiner shall survive me, she is, if she so desires, to have the use of the farm house, farm, stock and farming implements for and during her natural life, free of rent, she to receive the income thereof......All my real estate and stocks, except the farm stock and farming utensils aforementioned, are to be sold by my executor hereinafter named at public sale, for the highest price that can be gotten for the same, and to be sold as soon after my decease as conveniently may be. And I do hereby vest in my executor, hereinafter named, the power to sign, seal, execute, acknowledge, all such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the same to the purchaser or purchasers of the real estate so sold.....</p> <p>“And as to all the rest, residue and remainder of my estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath unto the Evangelical Lutheran Ministerium of Pennsylvania and adjacent states, to be divided as follows :.....</p> <p>“And lastly, I do make, constitute and appoint Milton Latshaw, of the borough of Spring City, Chester county, and state of Pennsylvania, to be executor of this my last will and testament.....”</p> <p>By the codicil to the will, the devise of the farm to Susanna Finkbiner was revoked, and other property given to her in lieu thereof. The codicil provided further as follows :</p> <p>“ I give and bequeath unto each of David S. Taylor’s children, and to each of Levi B. Shengle’s and his wife Margaret Shengle’s children, as mentioned in the will above recited, the sum of five hundred dollars, in addition to the sum mentioned in said will, and I do hereby ratify and confirm my said will in all other respects.”</p> <p>The fund for distribution was the proceeds of real and personal estate sold under the power in the will. Of the children ■of Levi B. and Margaret Shengle, there were three living, to wit: Mary I. Shengle, who was of age, and Martha D. and John C., who were in their minority, and the Provident Life and Trust Company, of Philadelphia, was the guardian of their estates.</p> <p>Upon the facts so found, the auditor reported his opinion, respecting the rights of the Shengle children, under the will and codicil, as follows:</p> <p>Most of the questions necessary to be disposed of by your auditor at this distribution are settled by Page’s App., 71 Pa. 402. These are vested legacies, but the time of payment is deferred until the legatees shall arrive at age.</p> <p>Mary I. Shengle, being of full age, is entitled to payment of the bequest to her of $1,000, with the legacy of $500 in the codicil; and she is awarded these amounts, less the tax, or $1,425.</p> <p>The legacies in the will to the other two children are clearly not payable until they arrive at age; and, as the testatrix did not stand to them in loco parentis, nor is a fund specially set aside for them in the hands of the executor, interest does not run until the legacies fall due.1 The accumulations must, however, go somewhere, and the only place for them to go under this state of affairs is to the residuary legatee: Aubert’s App., 119 Pa. 48. It is, however, contended on the part of the guardian that even if this be true as to the bequest in the will itself, it does not apply to the codicil.....</p> <p>In this codicil, so far from there being any evidence to the contrary, the words, “ as mentioned in said will,” seem to qualify the nature of the bequest as fully as the persons of the legatees ; and a fair construction of the whole clause shows that this additional gift should have the incidents of the original. It expressly provides that they are to have “ the sum of five hundred dollars, in addition to the sum mentioned in said will.” Metcalf, J., in Tilden v. Tilden, 13 Gray 103, cited in 1 Williams on Exrs., 9, note (y), says: “ It is an established prima facie rule of construction that an additional legacy given by a codicil is attended by the same incidents and qualities as the original legacy.” The same doctrine is laid down in Hawkins on Wills, 306, and cases there cited, and the rule is said to apply where the original bequest is to the legatee if he attains a certain age.</p> <p>The auditor, therefore, distributes the sum of $2,850, being the legacies to the two Shengle minors, less tax, to the executor ; the interest on said sum to be paid to the residuary legatee, and one half of the. principal to be paid respectively to Martha D. Shengle and John C. Shengle, as each shall arrive at age.</p> <p>—The auditor accordingly reported a schedule of distribution by which the sum of $1,425 was awarded “ to Milton Latshaw, executor, interest to be paid to the Evangelical Lutheran Ministerium of Pennsylvania and adjacent states ; principal to Martha D. Shengle, when twenty-one years of age; ” and the like sum was awarded in a similar manner, except that the principal was directed to be paid to John C. Shengle when twenty-one years of age.</p> <p>The Provident etc. Company, guardian of Martha D. and John C. Shengle, filed exceptions to the report, alleging that the auditor erred: In holding that the additional legacies given to the Shengle minors by the codicil were not payable until their arrival at the age of twenty-one years;1 in not holding that said legacies were presently payable to the guardian of the legatees; * and in awarding the interest upon the legacies given to said minors by the will and codicil to the residuary legatee, instead of to the guardian of the minors.3</p> <p>After argument, the court, Waddell, P. J., dismissed the exceptions and confirmed the report, filing the following opinion :</p> <p>The rule is well established that a legacy does not carry interest until the time of payment arrives. This is established by many cases: Bitzer v. Hahn, 14 S. & R. 288; Magoffin v. Patton, 4 R. 119; Laporte v. Bishop, 23 Pa. 154; Leech’s App., 44 Pa. 140 ; Kerr v. Bosler, 62 Pa. 186 ; Page’s App., 71 Pa. 402. It will he seen that while the auditor rules upon Page’s Appeal, it is only one of many cases. They all lead down to the principles announced in that case.</p> <p>In fact, we understand, the exceptants concede this doctrine, but they contend the auditor has erred in holding that the time of payment of the legacies to the Shengle children was when they respectively attained the age of twenty-one years. They think when the testatrix said, “ I bequeath unto each of Levi B. Shengle and his wife Margaret Shengle’s children .... the sum of one thousand dollars, to be paid to them respectively on arriving at the age of twenty-one years, and in case either of them die before attaining ” that age, then over, she means that the time of payment is referable to the period of distribution, which is presently or at most a year after the death; and that the executor, as trustee, or testamentary guardian of the minors, is to hold it for their use until they attain the age designated.</p> <p>In order to regard the executor as a trustee of the fund or testamentary guardian of the minor legatee, there must be some indication in the will that the testatrix intended to constitute the executor a trustee or testamentary guardian, aside from his position as executor. If there is such an intention manifest, the executor will hold the fund as trustee for the use and benefit of the legatee, but the mere giving of a legacy, with directions to pay it at a future day, without more, will not create such a trusteeship. There must be “a manifest placing of the fund under the care of the executor, for the use of the legatee. If he does so hold it, then the legatee would be entitled to the interest on the legacy:” Laporte v. Bishop, 23 Pa. 154; Cooper v. Scott, 62 Pa. 142; Page’s App., 71 Pa. 405. But there is no such intention manifest in this bequest. It is merely a giving of so much money to the legatee, to be paid when the legatee arrives at the age of twenty-one years, without the testatrix placing herself “ in loco parentis,” or anything appearing to show that the interest on the fund was intended or was necessary for the support of the minor legatee. In the absence of such a trust, either express or implied, and the testatrix having directed that the legacy shall be paid to the respective legatees upon their arrival at the age of twenty-one years, without holding the position of a parent toward them, or anything in the case to show that the interest on the fund was necessary for their support, we think the auditor was right in holding that the minor legatees were not entitled to interest on the legacies during their minority.</p> <p>He further holds that the residuary legatee is entitled to the interest on these legacies, until the time arrives for their payment. To this the exceptant objects.</p> <p>The auditor follows the ruling in Kerr v. Bosler, 62 Pa. 186. Such a ruling is not governed by the fact that, upon the death of the legatee before arriving at twenty-one years, the legacy goes over to the residuary legatee by the terms of the will, but because the accumulation of interest, not being disposed of specifically, and not belonging to the legatee, -but being a. part of the testator’s estate, it falls naturally and necessarily into the residue. The principal of the legacy is held by the executor as undistributed estate of the testatrix, and all that is made out of it belongs to the estate: Kerr v. Bosler, supra. By bequeathing a certain sum and fixing a time for its payment, she determines the precise sum to be paid at the time fixed: Page’s Appeal, supra.</p> <p>We have read the report of the auditor with pleasure, and desire to say it shows he has examined the questions presented for his consideration with much care and research, and we agree with him in all his conclusions. We must therefore dismiss the exceptions and confirm his report.</p> <p>■ —Thereupon the exceptant took this appeal, assigning for error:</p> <p>1-3. The dismissal of the exceptions to the auditor’s report.1 to 3</p>

APPEAL BY E. D. HEEENER EROM THE ORPHANS’ COURT OE BERKS COUNTY. No. 309 January Term 1890, Sup. Ct.; court below, number and term not shown.

<p>APPEAL BY DEPENDANT PKOM THE COURT OP COMMON PLEAS NO. 3 OP PHILADELPHIA COUNTY.</p> <p>No. 247 January Term 1889, Sup. Ct.; court below, No. 48 December Term 1886, C. P. No. 3.</p> <p>On November 19, 1886, Oscar P. Saunders brought ejectment against Samuel M. Gould for the premises No. 928 South Fifth street, Philadelphia. The defendant pleaded not guilty. On March 1, 1887, the plaintiff conveyed the premises sued for to Mary Tilden Wagner, and on June 8, 1887, filed a suggestion of this conveyance and marked the suit for her use.</p> <p>At the trial, on November 12, 1888, the following facts were shown:</p> <p>The title to the premises in dispute was vested on February 3, 1873, in Charles W. Hepburn. Prior thereto, liens had been entered against the property in the order stated and in favor of the parties named below:</p> <p>1. Mortgage, W. L. Brown, $6,000.</p> <p>2. Judgment, James Allen, $500.</p> <p>3. Judgment, J. Alexander Simpson, $650.</p> <p>4. Mortgage, Silas Betts, $1,200, and judgment for same debt on the accompanying bond.</p> <p>5. Judgment, J. Alexander Simpson, $500.</p> <p>6. Judgment on bond accompanying Brown mortgage, No. 1.</p> <p>On February 3, 1873, under an execution issued upon the judgment, No. 5, in favor of Simpson, this property was exposed to sale by the sheriff and knocked down to Henry F. Hepburn for $100, who also purchased other properties at a sheriff’s sale made on April 7, 1873. Under an arrangement subsequently made, Samuel M. Gould was returned as the purchaser of these several properties and sheriff’s deeds for them were made and delivered to him. He. permitted Charles W. Hepburn to collect the rents upon them until May 26, 1874, after which Gould received the same.</p> <p>There was a large amount of evidence for the defendant that the transaction with Gould, although apparently on its face a purchase by him, was in reality a mortgage for a loan made by him to Charles W. Hepburn, negotiated by H. F. Hepburn, as C. W. Hepburn’s attorney, Gould advancing $4,000, less a discount of ten per cent, holding the sheriff’s deed as security for its repayment by C. W. Hepburn, and giving him an agreement, which was not placed upon record, engaging to re-convey upon payment of the loan with interest. Substantially the same testimony upon this point was given, as that stated in the report of a former action of ejectment between Gould and Saunders: Saunders v. Gould, 124 Pa. 237. In addition, there was testimony tending to show that Charles W. Hepburn procured the sheriff’s sales to be made; that the purchase money thereon was paid to the sheriff with his money, prior to the making of any advances by Gould; that at the time of the first advance C. W- Hepburn executed a judgment note for $10,000, in favor of Gould, intended to cover that and such subsequent loans as might be made, which was entered on December 3, 1873, and that Gould recognized this judgment by signing a release of lien and by satisfying it on December .1, 1875; and entries in Gould’s diary, and a letter written by him to H. F. Hepburn on January 27, 1883, tending to show that the transaction was a loan, were produced.</p> <p>Gould, however, testified in denial of the allegation of a loan, to the same effect in substance as his testimony stated in 124 Pa. at page 240. He testified also that he knew nothing of the $10,000 judgment, though he afterwards stated that he had been told by H. F. Hepburn that a judgment for $10,000 had been entered for his protection, and upon being shown his signatures to the release of lien and the satisfaction of the judgment, he stated that they looked like his writing but he knew nothing about the matter, and might have made the signatures under H. F. Hepburn’s direction, without asking any questions; that H. F. Hepburn was his friend, attended to various matters of business for him, and often made business arrangements for him without pfeviously consulting him.</p> <p>At the time of the sheriff’s sale of the property in dispute, the money due upon the judgments, Nos. 2 and 3 in the list of liens above given, had been made by a sale of other property in December, 1872, under an execution issued upon the Simpson judgment, No. 5; the sheriff had paid out the money, and his private docket contained a receipt therefor, dated January 5, 1873. There was no evidence that Gould was aware of this fact when he received the title to the property in controversy, and those judgments were then standing upon the record unsatisfied. The records were brought before the court by the following general offer:</p> <p>Mr. Scollay, for the defendant: Under all these judgments I shall claim the right to offer such dockets as relate to them, and I offer them now, so as to be able to read any docket relative to the case.</p> <p>Mr. Bedell: I object to the dockets unless they are to supply lost records.</p> <p>By the court: That is proper, and I will say that I think you have got them all in, Mr. Scollay.</p> <p>In December, 1879, the Betts judgment was revived against C. W. Hepburn, and in December, 1882, a levy thereunder was made upon the property No. 928 South Fifth street, and also upon another of the properties embraced in the transaction between Hepburn and Gould. Gould thereupon filed a bill in equity in the Court of Common Pleas No. 1 of Philadelphia county, against the plaintiff in the judgment, the two Hep-burns and the sheriff, praying inter alia for an injunction against the sale of the properties so levied on. The bill, as well as an injunction affidavit made by Gould in support thereof, averred that he held the title originally as security for a loan to C. W. Hepburn, but that by releases dated May 26, 1874, the latter had quit-claimed to Gould all his title to the said two properties. A preliminary injunction having been refused by said court, these properties were sold by the sheriff and purchased by Oscar P. Saunders after notice given by Gould, at the sale, of his claim of title as stated in his bill in equity. Saunders was then added as a party defendant in the equity suit, which resulted in a decree dismissing the bill.</p> <p>Saunders having taken possession of the properties, Gould on August 4, 1883, brought ejectment against him and recovered judgment therefor, which, upon writ of error at No. 170 July Term 1888, Sup. Ct., was affirmed in an opinion by Mr. Justice Clark, filed February 18, 1889: Saunders v. Gould, 124 Pa. 237. Prior to the removal of that case to the Supreme Court, however, a writ of habere facias possessionem was issued upon the judgment and Gould was put into possession, whereupon Saunders brought the present action against Gould, which was tried before the decision of the Supreme Court in the former case was rendered.</p> <p>The release or quit-claim deed from C. W. Hepburn to Gould, for the property No. 928 South Fifth street, mentioned in the bill in equity, was not put in evidence in the present case, but it was produced, and Gould testified that it was delivered to him upon the day of its date, May 26,1874.</p> <p>At the close of the testimony, the defendant requested the court to charge the jury as follows:</p> <p>1. There is no sufficient evidence in this case to show that there was any agreement between the defendant and Charles W. Hepburn, either before the execution of the sheriff’s deed to the defendant, dated April 19,1873, at the time of its delivery, or afterwards, which converted said deed into a mortgage, and without such evidence, said deed, as it is actually expressed within its four corners, is a conveyance of the property to the defendant, in fee-simple.10</p> <p>2. The parol or other proof necessary to convert a deed absolute on its face into a mortgage, must be clear, explicit, and unequivocal, and in all respects such as would move a chancellor to decree a re-conveyance. It is the province of the court to decide whether particular parol evidence be sufficient to convert a deed of conveyance absolute on its face into a mortgage. Under this rule of law, the said sheriff’s deed to the defendant dated April 19, 1873, is an absolute conveyance in fee, and the jury should render their verdict for the defendant, under all the evidence in this case.11</p> <p>3. The sheriff’s sale of the property No. 928 South Fifth street, under the second Simpson judgment, discharged the lien of the Betts judgment and mortgage upon said property.18</p> <p>4. The lien of a judgment on real estate continues only five years unless revived, and it is essential, in order to continue the hen of a judgment on land sold and conveyed, that the terre-tenant be made a party to, or have due notice of the scire facias to revive. As, therefore, the revival of the Betts judgment, under which the plaintiff claims title in this suit, which judgment was first entered January 3, 1870, and which revival did not take place until December 20, 1879, more than nine years after it was first entered, and over five years after the defendant’s purchase and possession, the defendant not having been made a party to or given notice of the suit to revive, he being in actual possession and his deeds duly recorded, for a sufficient number of years prior to said revival, the Betts judgment, under which the plaintiff here claims title, was not a lien on the property in suit in the hands of the defendant, at the time of or after its said revival, the sheriff’s sale under the Betts judgment so revived did not pass any title to the property in suit to Oscar P. Saunders, and the verdict therefore must be for the defendant.13</p> <p>5. Under all the evidence in this case the verdict should be for the defendant.14</p> <p>6. There is no evidence that if Charles W. Hepburn and Henry F. Hepburn actually bought the properties in suit for Charles W. Hepburn at the sheriff’s sales in February and April, 1873, and put them in the name of Samuel M. Gould for the purpose of defrauding the creditors of Charles W. Hepburn, that Samuel M. Gould had any knowledge of this fraud or fraudulent intent. Therefore, unless Gould had knowledge that it was a fraud or there was fraudulent intent on the part of Henry F. and Charles W. Hepburn, or either of them, he cannot be regarded as a party to the fraud and he is not affected by it, and the verdict should be for the defendant.15</p> <p>7. The whole evidence shows that there was a verdict in the present issue in Court of Common Pleas No. 1 of Philadelphia county, September Term 1883, No. 41, and that this verdict was based upon an equitable defence by the defendant in that case, or an endeavor to convert a deed absolute on its face into an equitable mortgage. Therefore, the verdict in that case having been given upon that basis, and the defence having been an equitable one, there is no need of another verdict in the issue, and the verdict in the present case should be for the defendant.16</p> <p>8. If, from all the evidence, the question of fact is in doubt as to whether Samuel M. Gould, the defendant here, took his deed from the sheriff as an actual bona fide purchaser, or as a mere equitable mortgagee from Charles W. Hepburn to him, the fact that the same question has already been submitted to another jury and found in favor of the defendant here, who was the plaintiff in the former action, certainly should have enough influence with the court in the present trial and with the present jury to determine the same question in favor of the defendant in the present suit between the- same parties, and, therefore, the verdict should be for the defendant.17</p> <p>—The court, Gordon, J., refused all of the foregoing points, and charged the jury as follows:</p> <p>Gentlemen of the jury, we have taken two days in the trial of this case, and I have permitted this trial to continue so fully, because of the action between the same parties in a co-ordinate court, involving the same issue, in which a jury of twelve men found a verdict in favor of Mr. Gould. That verdict of itself entitled his cause in this case to be fully and patiently heard. It is also an item of evidence, not in itself conclusive, but an item of evidence. That was the reason why I permitted this cause to proceed so far, notwithstanding there were brought into the case witnesses who gave testimony perhaps not pertinent to the case.</p> <p>The ordinary province of a jury is to determine disputed questions of fact where witnesses are contradicted. Where they testify as to different circumstances of facts, the province of the jury is to ascertain what are the exact facts in the case; and, then, having found them, they are to record their verdict under the law in accordance with their finding. But a jury are only to perform such a duty where there are controlling points disputed; where they are undisputed, where they appear by the admission of the parties to be not impeached, or not impeached in any reliable way, where the facts remain undisputed, the jury have nothing to do but to record their verdict in accordance with the law as given by the court, because it is the court’s duty to instruct upon the law. What the court instructs upon that subject is binding upon the jury, just as the finding of the jury is binding upon the court upon a question of fact, to a certain extent, at least.</p> <p>Now, the undisputed facts in this case, as you have already heard me say, to my mind entirely vitiate the title set up by' this defendant as against a lien creditor of Charles W. Hepburn. The acts of Mr. Gould, his declarations, orally and in writing, in a solemn and formal proceeding in another court, everything that he has done and said in connection with the case which he has testified to upon the stand, make this out a loan and nothing but a loan. If this were an action upon The equity side of this court, I would be obliged, if the proceedings were an action for a re-conveyance to Chas. W. Hepburn, upon the repayment of this money, to decree a re-conveyance of the premises to him. [In view of that, it is only your duty to find a verdict for the plaintiff, under the instructions of the court: If I am in error, my brethren of this court, or the judges of the Supreme Court, will set my views aside; but at present that is my view. I, therefore, instruct you to render a verdict for the plaintiff in this case. I suppose that you have observed that both these parties claim upon a deed, a formal and absolute conveyance from the sheriff. The plaintiff has proved that; and both claim through Charles W. Hepburn, with the sheriff as a common grantor. The plaintiff’s title is unimpeached in that view. Consequently you will find a verdict for the plaintiff, and the foreman of the jury will render such a verdict informally, which will be taken by the clerk.] 18</p> <p>—The jury returned a verdict in favor of the plaintiff as directed, and the court, discharging a rule for a new trial, subsequently entered judgment thereon. Whereupon, the defendant took this appeal, ■ specifying that the court erred, inter alia:</p> <p>10-17. In refusing the defendant’s points.10 to 17</p> <p>18. In charging the jury as set out in [ ] 18</p>

<p>[To be reported.]</p> <p>1. A patent-right is such property as may be contributed to the capital of a limited partnership association under § 1, act of May 1, 1876, P. L. 89, and a description of the same in the recorded statement by the number, date and subject of the letters patent, and the name of the inventor, is sufficient.</p> <p>2. Distinct patents, covering different parts of or improvements in the same machine, and therefore considered valuable only in combination, may properly be valued together at a gross sum, in the schedule prescribed by said act of 1876, when so contributed by the same subscriber thereto.</p> <p>3. When the schedule prescribed by the statute has been made and recorded in due form, the fact that the valuation therein placed on property subscribed is excessive, and even grossly so, will not render the members personally liable to creditors, if it was made in good faith: Sheble v. Strong, 128 Pa. 315, distinguished.</p>

<p>Where a laborer, employed by contractors in the widening of the roadbed of a railroad company, is killed in the course of his employment by the negligence of the company’s employees operating a railroad train, the case is within the provisions of the act of April 4, 1868, P. L. 58, and the company is exempt from liability.</p>

<p>1. Where one of two partners, lessees of a furnished hotel, expends money, against the protest of his copartner, in repairs and improvements which neither increase nor preserve the firm assets, he is not entitled, without a subsequent ratification thereof, to charge such expenditures against the copartnership.</p> <p>2. Nor may one partner, who negligently made an overpayment of rent, claimed by but not payable to a landlord who has become insolvent, charge such overpayment to the copartnership, against the objection of his fellow partner.</p> <p>3. Where a bill for an account between partners was for four years before a master, who had personal knowledge of the services of an expert accountant employed, an allowance for such services will not be disturbed, in the absence of evidence that it was excessive.</p> <p>4. Unless there are exceptional reasons for doing otherwise, it is the rule, in the settlement of a partnership business by proceedings in equity before a master, to charge the costs of the proceedings, including the master’s fee, to the copartnership, or to the parties, equally.</p> <p>(a) A landlord demised a furnished-hotel to a firm consisting of two partners, one of whom was his son. At different times the landlord gave to his son sums of money which were expended by the latter in repairing the property and renewing the furniture:</p> <p>5. The landlord taking no receipts or vouchers, or even verbal promises, evidencing that the money was supplied by him as a loan to the firm, and presenting no claim himself against the firm for repayment, such expenditures were not chargeable to the copartnership.</p>

<p>In a proceeding to enjoin the use of a specific label for bottled goods, the master having found that the label in use by the defendants was an imitation of that adopted by the plaintiffs by a prior use as their trademark, and that purchasers were liable to be deceived by such imitation, it was not error to confirm the report and award an injunction as recommended.</p>

4 OF PHILADELPHIA COUNTY. No. 249 January Term 1890, Sup. Ct.; court below, No. 94 December Term 1889, C. P. No. 4. On November 9,1889, the Central National Bank of Boston brought assumpsit against William Dreydoppel, as the indorser of a promissory note of which the following is a copy: $2,500. Boston, May 14th, 1889. Five months after date we promise to -pay to the order of ourselves twenty-five hundred dollars. Value received. (Signed) Jones & Eaton.

1 OP PHILADELPHIA COUNTY. No. 256 January Term 1890-, Sup. Cfc.; court below, No. 75 December Term 1888, M. L. D. On April 16, 1889, a scire facias was issued upon a .mechanics’ lien filed by James Corr against W. H. Greenfield, owner or reputed owner and contractor, and William S. Lane, terre-tenant, admitted to defend pro interesse suo. Issue.

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.</p> <p>No. 143 July Term 1889, Sup. Ct.; court below, No. 32 January Term 1887, C. P.</p> <p>On November 2, 1886, Amos Rothermal and Cyrus Kauffman, trading as Rothermal & Kauffman, brought debt against A. H. Dankle, M. C. Ramsey, W. M. Hughes, J. B. Hutchinson, Samuel B. Cressman, H. Halsey, Att’y, C. F. Hill, and William H. Hertz, to recover upon a joint note made by the defendants to the order of Rothermal & Kauffman, dated March 31, 1885, for $800, at one year after date. Dankle and Ramsey were not served; the other defendants pleaded nil debent and payment with leave.</p> <p>At the trial on June 4, 1889, the plaintiffs having rested, the defendants introduced testimony to the effect that sometime in 1883, A. H. Dankle gave Rothermal & Kauffman, in settlement of a mule deal, his note for $1,065 ; that in March, 1885, this note being unpaid,' Rothermal & Kauffman made information charging A. H. Dankle with obtaining goods by means of false pretences, and had him arrested; that, when Dankle appeared before the committing magistrate, a settlement was agreed upon whereby it was arranged that upon Dankle’s giving his individual note for $200 and another note for $800, with sureties, to the prosecutors, the latter would abandon the prosecution and give the defendant a year in which to pay the indebtedness ; that this arrangement was carried out, the prosecution was abandoned, the old note surrendered and the new notes left with the magistrate and by him sent to the prosecutors ; that in order to procure the signature of Mr. Hughes to the note in ■ suit, Mr. Dankle represented to him that if he would sign it certain other gentlemen known to Mr. Hughes would also sign it, and Mr. Hughes signed it upon condition that it should not be delivered until it had been signed by the other gentlemen, which condition was violated; that to Mr. Hertz, to obtain his signature, Mr. Dankle represented that he was the owner of certain valuable property in Hazleton, which was false. The defendants contended that, the note being a joint note, the release of these two sureties, by reason of the fraud upon them, operated to discharge all. There was no evidence, however, that the prosecutors had knowledge of the alleged fraud upon the sureties.</p> <p>The court, Rice, P. J., having stated the facts, charged the jury:</p> <p>[We are of opinion, as a matter of law, that on all the testimony in the case, the plaintiffs are entitled to a verdict.] 1 . . . .</p> <p>If the withdrawal of the criminal prosecution were the sole consideration for this note in suit, we would agree with the defendants’ counsel that the plaintiffs would not be protected as bona fide purchasers for value, against the fraud which Dankle had committed upon the sureties, whose names he had secured to the note. But, according to the testimony, that was only a part of the consideration. The settlement of the claims which they held against Dankle was also a consideration for the note in suit. [This amounted, in our opinion, according to the testimony, to a good accord and satisfaction, — the agreement by the plaintiffs to take a note, with securitj’’, payable a year from date, and Dankle’s individual note in satisfaction of their claims against him; and this, in our judgment, made them bona fide purchasers for value, the. same as if on the faith of this note they had given to him property to the extent of its value.] 6</p> <p>Now, while it is true that fraud in the procurement or misappropriation of a note may be a defence, it is not a defence as against one who is a bona fide purchaser for value, without notice, and it is not contended that the plaintiffs had any notice of the fraud which Dankle had committed upon Hughes and Hertz; therefore, we conclude that, [upon all of the testimony in the case, the plaintiffs, being bona fide purchasers for value, without notice of the fraud which Dankle had committed upon his sureties, are entitled to a verdict for the face of the note, with interest on it from the date when it became due.] 7</p> <p>Plaintiffs’ counsel request us to charge you upon certain points which are as follows :</p> <p>1. False pretence is a misdemeanor, and can be compromised.</p> <p>Answer : This is affirmed.2</p> <p>2. A note given in relief of one arrested on a charge of false pretence, when given also in settlement of the indebtedness of tire prosecutor against the defendant, for the goods obtained, is valid, and a chancellor will not forbid its collection.</p> <p>Answer: This is affirmed.3</p> <p>3. In a suit by payee against makers of a negotiable instrument, parol evidence cannot be admitted to contradict or vary tbe written instrument, on tbe ground of fraud, accident or mistake in tbe creation of the same, without proof of knowledge of such fraud, accident or mistake be produced, showing payee had such knowledge.</p> <p>Answer: We decline to charge as requested in that point. The point would be well taken in the case of a payee who was the bona fide purchaser for value, but not otherwise.</p> <p>4. There being no evidence in this case that plaintiffs had notice of any fraud in the execution of the note in suit, and having shown that they are bona fide holders for value, the verdict must he for the plaintiffs.</p> <p>Answer: This point we affirm.4</p> <p>5. Under all of the evidence in the case the verdict must be for the plaintiffs.</p> <p>Answer: This is also affirmed.3</p> <p>The jury returned a verdict for the plaintiffs for 1954.78. Judgment having been entered, the defendants took this appeal, assigning for error:</p> <p>1. The portion of the charge in [ ] 1</p> <p>2-5. The answers to the plaintiffs’ points.8 to 3</p> <p>6. 7. The portions of the charge in [ ] 6 7</p>

No. 22 January Term 1890, Sup. Ct.; court below, No. 141 March Term 1889, C. P. On February 26, 1889, M. F. Briggs, administrator of the estate of Ann Eliza Good, deceased, issued a scire facias sur mortgage, dated July 8,1882, executed by M. L. Briggs, of the one part, to Peter Good, of the other part, providing: “Whereas, the said M. L. Briggs, in and by one obligation or writing obligatory, under his hand and seal duly executed, bearing even date herewith, stands bound…

No. 325 January Term 1890, Sup. Ct.; court below, No. 240 September Term 1885, C. P. On September 12,1885, Isaac C. Burrell brought case against Franklin B. Gowen and Stephen A. Caldwell, surviving receivers of the Philadelphia & Reading Railroad Co., to recover damages for personal injuries charged to the negligence of the defendants. Issue.

No. 344 January Term 1890, Sup. Ct.; court below, No. 79 February Term 1889, C. P. On January 19, 1889, a scire facias was issued against A. Ricketts upon a municipal claim for lien, filed on March 19, 1888, by the city of Wilkes-Barre against a lot of ground on Northampton street, and A. Ricketts, the reputed owner. The writ was returned served, on February 2, 1889.

No. 174 July Term 1889, Sup. Ct.; court below, No. 1 September Term 1889, C. P. in Equity. Held: used and occupied by complainant;” and for further relief. A bond being filed, a preliminary injunction was awarded and served, and a day fixed for the hearing of a motion to continue.

POB a mandamus to the court oe quarter sessions or PHILADELPHIA COUNTY. No. 000 January Term, 1890, Sup. Ct.

No. 000 January Term 1890, Sup. Ct. (E. D.) On April 25, 1890, there was filed in the Supreme Court a petition of Joseph Wheelin, averring that the petitioner, being an applicant for a bottler’s license under the act of May 24, 1887, P. L. 194, and having complied with all the requirements of said act, was unlawfully refused a license by the Court of Quarter Sessions of Philadelphia county; praying for an alternative writ of mandamus directed to the judges of said court, who…

<p>APPEAL BY PLAINTIEES EROM THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY.</p> <p>No. 121 July Term 1889, Sup. Ct.; court below, No. 28 June Term 1887, M. L. I)., C. P. No. 1.</p> <p>On July 11, 1887, William H. Harrison and Charles H. Harrison, trading as W. H. Harrison & Brother, brought scire facias against the Women’s Homoeopathic Association of Pennsylvania, owner, and Robert McNichol, trading as George Mc-Niehol & Son, contractor, upon a mechanics’ lien claim filed on June 25, 1887, against a certain building and its curtilage, particularly described. Annexed to the claim recited in the scire facias was a bill of particulars giving an itemized statement of the work and materials alleged to have been done and furnished by the plaintiffs in and about the erection of the building, with prices carried out for each item. The only items of charge in the bill of particulars bearing date within six months preceding the time of filing the claim, were the following, the last preceding item being under date of October 30, 1886:</p> <p>1887.</p> <p>March 9. 1 soapstone hearth, 5 ft. 8£ in. X 1 ft. 6 in., set $1;</p> <p>1 soapstone hearth, 6 ft. 5£ X 1 ft. 6 in.,</p> <p>make 18 ft. six in., at $1 set . . . $18 50</p> <p>May 27. 1 13-iron laundry stove and piping . $25 00</p> <p>The various charges aggregated $3,169.96. Credits, without date, were allowed, for cash, $1,279.92, and for two soapstone hearths, $18.50, the balance claimed being $1,871.54.</p> <p>An affidavit and a supplemental affidavit of defence were filed by the defendant association, which averred that the lien of the plaintiffs had expired by reason of the failure to file the claim within six months after the last continuous work was done; that the two hearths mentioned in the charge of March 9, 1887, were furnished to supply the places of two defective hearths, put in by the plaintiffs more than six months before the filing of the claim; and that the laundry stove, which, with its necessary piping, was the subject of the charge of May 27, 1887, was not in any sense a part of the building, but was an ordinary piece of personal property, as much adapted for use in any one laundry as in any other.</p> <p>A rule for judgment for want of a sufficient affidavit of defence, after argument, was made absolute, and damages assessed at $1,901.48 ; but, on writ of error to No. 61 January Term 1888, the judgment was reversed by the Supreme Court, with an award of a procedendo : Homoeopathic Ass’n v. Harrison, 120 Pa. 28. The record with the remittitur having been returned to the court below, the defendant, the hospital association, pleaded no lien, set-off, nil debet, payment, payment with leave, etc., and a special plea making the same averments as those contained in the affidavits of defence. Issue.</p> <p>At the trial on April 2,1889, the following facts were shown upon the part of the plaintiffs :</p> <p>In 1884 the association defendant had erected for it two buildings for hospital purposes. Robert McNichol, trading as George McNichol & Son, was the contractor for the erection of the main building, under a contract containing the following provisions:</p> <p>“ The said building to be erected according to certain drawings which have been prepared by W. E. Jackson, architect, .....the whole work being carried out under his supervision and to his satisfaction and approval.</p> <p>“ The architect will reserve the right to approve all of the sub-contractors.</p> <p>“ All materials used to be the best of their, several kinds, subject to the approval or rejection of the architect, who shall have full power to refuse any different from those described either on the plans or in the specifications, and to cause any unsound work to be taken down, altered, and removed at the expense of the contractor. No allowance to be made for any extra work whatever, unless the cost of the same, previous to erection, is agreed upon in writing between the parties to this contract, or their legal representatives.”</p> <p>McNichol sublet to Harrison & Bro., in accordance with the following proposal, the portions of the work therein mentioned: “ Gentlemen : We will furnish all the tin flues as specified for Women’s Homoeopathic Hospital, all the registers as specified, two Jackson heating and ventilating grates, all the range work, all the soapstone fireplaces, twenty-eight in number, all the soapstone hearths, laundry stove’(twelve-iron), for $2,988, according to the plans and specifications of the architect.</p> <p>“W. H. Harrison & Bro.”</p> <p>By October 80, 1886, the plaintiffs had fully performed their contract, except the furnishing and setting of the laundry stove and its appurtenances. .Two hearths they had supplied and set previous to that date were ordered out, however, by the architect on account of breakage, and on March 9, 1887, the plaintiffs substituted others in their places. The testimony respecting these hearths was as follows :</p> <p>W. E. Jackson, the architect, testified that he ordered the two hearthstones out; the materials were good, to the best of his knowledge, when they were set, but they were broken when his attention was called to them, and he ordered them out and to be re-set without extra charge ; the plaintiffs replaced them; the witness did not know when or how the hearthstones were broken. W. H. Harrison, one of the plaintiffs, testified that plaintiffs knew that Mr. McNichol was in trouble, and they did not wish to charge him any more than the exact amount of the contract; somebody had broken the hearths, they did not, and they were ordered out; the plaintiffs took them out and put in new ones for which they made no extra charge, owing to Mr. McNichol’s coudition. The workmen who deliv*,. ered and set the two hearthstones that were taken out, were not called, and there was no testimony to explain how they were broken.</p> <p>The laundry stove was originally intended to be put into the building for which McNichol had the contract, and that contract, as well as the sub-contract with the plaintiffs, required it to be set up therein. It was finally determined, however, to place it in the other building, and on April 27, 1887, the architect wrote to the plaintiffs as follows : “Your contract calls for a laundry stove (12 irons); we are going to put it up in the other building. Please send it up as soon as possible, and oblige.” In accordance with this instruction the plaintiffs furnished the stove, piping, etc., and the architect attended to having it set up in the other building. In regard to this stove the architect testified that the stove was set up in the centre of the room, and that it was no part of the building; it could be put in anywhere; in a parlor, for instance ; but it must be put in a location where it could be attached to a smoke flue. A phor tograph of the laundry in which the stove was set up was produced by the defendants and identified by the witness Jackson upon cross-examination. It was alleged in the appellant’s paper-book that this photograph showed the stove to be physically annexed to the building.</p> <p>At the close of the testimony for the plaintiffs the defendant moved for a compulsory nonsuit, on the ground that the, plaintiffs’ claim was not filed as a lien within six months after the date of the last item for which they had a right to enter a lien.</p> <p>By the court: Motion sustained and nonsuit granted.</p> <p>A motion for a rule to take off the nonsuit, after argument,, was dismissed by the court, whereupon the plaintiffs took this appeal, specifying that the court erred:</p> <p>1. In entering the judgment of nonsuit.</p>

No. 426 January Term 1889, Sup. Ot.; court below, No. 133 May Term 1886, C. P. On April 7,1886, two horses and two sets of harness, alleged to be of the value of $300, were replevied by the sheriff and delivered to the plaintiff, at the suit of John Summerson against William Hicks and Mary Hicks. Issue.

<p>[To be reported.]</p> <p>1. When, in an action upon a policy of insurance, objection is made to the admission of the proofs of loss, upon the ground that they were not furnished within the stipulated time, it is more regular to hear testimony as to an alleged waiver of the stipulation, before admitting them in evidence ; but, if testimony sufficient to carry that question to the jury be afterwards given, their admission without first requiring the waiver to be proved will not be error.</p> <p>2. If the insured, in good faith and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy respecting proofs of loss, good faith requires that the insurer shall promptly notify him of ‘any objections thereto, so as to give him the opportunity to obviate them; and mere-silence may so mislead him t'o I his disadvantage, as of itself to be sufficient evidence of waiver by es-I toppel.†</p> <p>3. If, however, without valid reason, the insured fail to comply with such requirements at all or within the stipulated time, mere silence, or investigation, or even negotiation by the insurer, will not waive a liability which, under the terms of the policy, is discharged by such failure; and nothing will do that, short of an express agreement, or a change of position by the insured to his disadvantage reasonably induced by the insurer’s acts.</p> <p>4. Whether a strict limitation as to time will preclude the subsequent correction of defects in proofs duly furnished, not decided; nevertheless. the fact that when the proofs were received there remained but three days of the period specified in the policy, which might not prove sufficient to enable the insured to obviate the defects, will not'relieve the insurance company from the obligation, by prompt notice, to give him the opportunity.</p> <p>5. The settled rule that offers of compromise are not admissible as evidence of the plaintiff’s claim, is not transgressed by receiving proof of the mere fact that an insurance company made an offer of settlement, when such testimony is admitted solely upon the question of waiver of a stipulation as to the time of furnishing proofs of loss, and is carefully limited to that in the charge to the jury.</p> <p>6. When an applicant for fire insurance informed the insurer’s agent that the property was encumbered to a certain amount, whereupon the insurer issued a policy providing that, unless otherwise expressed, it should be void if the property be subject to liens, or the hazard be increased, judgment liens existing or subsequently entered, will not avoid the policy, if the amount stated be not exceeded: Iiister v. Insurance Co., 128 Pa. 553.</p> <p>7. When a policy contains a provision that it shall be void if assigned before a loss, without the consent of the insurance company indorsed thereon, and the company has placed upon it an indorsement making the loss, if any, payable to a third person, such indorsement operates as a ratification of a prior agreement of the insured to the same effect, made without the company’s consent.</p>

<p>[To be reported.]</p> <p>1. Notwithstanding a stipulation in a policy of insurance that nothing less than an express agreement, indorsed thereon, shall be construed as a waiver of any of its conditions, parol testimony is admissible to show a waiver by acts in pais of the insurance company: Gould v. Insurance Co., ante, 570, followed; Universal F. Ins. Co. v. Weiss, 106 Pa. 20, distinguished.</p> <p>2. When, however, the policy contains a condition of such substantial effect that the policy shall be void if the property insured be encumbered at its date or shall afterwards become so, without notice to the company, it is incumbent on the insured to establish the facts making out the alleged parol waiver thereof by a clear preponderance of evidence.</p> <p>3. That the company, with knowledge of every fact upon which it could avoid the policy, misled and delayed the insured by promising to pay the loss, prevented him from rebuilding by its negotiations, put him to trouble and expense in proving the loss, and procured a mutually binding adjustment of the amount of the loss by appraisers, is sufficient evidence of such waiver.</p>

No. 96 January Term 1890, Sup. Ct.; court below, No. 628 December Term 1887, C. P. On December 3, 1887, John Ball brought ejectment against John C. Campbell and Alice, his wife, J. L. Ball and Cornelia, his wife, Harris Rogers and Margaret, his wife, Joshua Turk, Allen Rogers, John Teed, Wm. Campbell, Henry Smith and Abram Brown, for five lots of land in Litchfield township, containing 621 acres more or less. Issue.

<p>APPEAL BY DEPENDANT EROM THE COURT OF COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY.</p> <p>No. 165 January Term 1890, Sup. Ct.; court below, No. 403 March Term 1889, C. P. No. 3.</p> <p>On April 20, 1889, M. R. Muckle, Jr., and others trading as M. R. Muckle, Jr., & Co., brought assumpsit against Albert H. Moore. Issue.</p> <p>At the trial on October 7, 1889, the plaintiffs’ claim, as supported by their testimony, was a bill for a boiler, automatic engine, etc., etc., and an electric light plant,, furnished and put up by them for the defendant. The contention in the Supreme Court related entirely to the electric light plant, as to which the plaintiffs introduced testimony in proof of a parol contract to supply the defendant with an electric light plant for $600, and the value of certain articles as extras therefor, specially ordered by the defendant and supplied by the plaintiffs. The defendant introduced testimony in support of his claim that he was to have the plant complete for $600, and was to pay in addition only for the wire and the time of the men in wiling the plant, and that plaintiffs had charged him for many articles which should have been included in the complete plant pro vided for in the contract. The disputed questions of fact sufficiently appear in the opinion of the Supreme Court.</p> <p>The letter of plaintiffs to defendant, dated January 21,1889, referred to in the opinion, was as follows:</p> <p>“ Dear Sir: We have your verbal order of this day for a direct current incandescent electric lighting outfit of the Westinghouse Electric Company’s make, delivered f. o. b. cars, Pittsburgh, Pennsylvania, for the sum of six hundred dollars ($600.00).</p> <p>“ The plant to consist of one dynamo with a maximum capacity of 100 16-candle-power lamps; dynamo to be complete with one rheostat, to bring lamps to the proper candle power; tension base; one volt-meter or candle-power indicator; 28 16-candle-power lamps; 36 50-candle-power lamps, and 64 keyed sockets.</p> <p>“We further understand that you are to locate the lamps in your dwelling and buildings; and that we are to do the wiring up of this work, charging for the time of men, material and expenses.</p> <p>“We will have this apparatus shipped forward at once, and our wiremen will meet you next Thursday morning, on the nine o’clock train, to go to Colmar to have you locate the lights.”</p> <p>At the close of the testimony, the court charged the jury in part as follows:</p> <p>[The defendant is entitled simply to the dynamo, a machine for manufacturing electricity, and the number of lights as he saw them at the time he went into the establishment of the plaintiffs. If they were without reflectors, then he had no right to have reflectors. If the lights that he saw were without any of the other things that were put about his lights, it is his duty to pay for them, even upon his own version of the contract.] 1</p> <p>[Again, if you are satisfied that his version of the contract is correct, he should pay for all expenses of affixing those lights; that is, whatever expenses attended putting them in and about the place. All those expenses should be paid by him. In other words, he is entitled to nothing, under his version of the contract, but the dynamo and the simple lights as he saw them, and he is not entitled to have them put in any place at the expense of the plaintiffs.] 2.....</p> <p>—The jury returned a verdict for the plaintiffs for $3,181.03. A rule for a new trial having been discharged, the defendant took this appeal, assigning for error: 1, 2. The portions of the charge embraced in [ ] 1 2</p>

3 OE PHILADELPHIA COUNTY. No. 177 January Term 1890, Sup. Ct.; court below, No. 193 December Term 1888, C. P. No. 3. On November- 21, 1888, J. Dickinson Sergeant, surviving trustee of the Sepviva estate, brought scire facias sur mortgage against F. C. Aberle. Issue.

<p>[To be reported.]</p> <p>1. When, to remove doubts as to a borough’s title to and right to dispose of land, a statute has been passed, confirming the title and conferring upon the borough power to sell lots out of the land, a provision therein that, before making any such'sales, the borough shall convey a lot of a certain size to a historical society, is a valid exercise of legislative power.</p> <p>(ia) By § 6, act of April fi, 1870, P. L. 891, the borough of Wilkes-Barre was directed to convey to a historical society a lot fronting not less than 30 feet on a certain street, “for the erection of a hall for the use of said ” society. By resolution reciting the act, the borough council directed the conveyance to the society of land fronting 100 feet on said street, being lots 46, 47, 48 and part of 49.</p> <p>(b) The resolution directed the embodying in the conveyance of a condition that a building be erected by Lhe society within two years. The proper officers executed and delivered to the society a conveyance, reciting the resolution, stating that lot 46 represented the minimum of 30 feet specified in the statute, and subjecting the other lots conveyed therein to the condition prescribed by the resolution:</p> <p>2. The mere statement in the statute that the lot was to be conveyed “ for the erection of a hall,” etc., imposed no condition upon the title directed ■ to be conveyed, and did not make it dependent upon the application of the land by the society to the use expressed: Methodist Church v. Public Ground Co., 103 Pa. 608; and the borough had no authority to do so by the conveyance.</p> <p>3. Tor that reason, and also because, construing the resolution in the light of the interpretation placed upon it by the borough officers in making the deed, there is no essential conflict between the terms of the resolution and those of the deed, the society took an absolute title, in fee-simple, to lot 46, which it could hold, sell and convey, free from any condition whatever.</p> <p>4 Said society being a corporate body, the omission from the conveyance to it of the words, “ successors and assigns,” did not prevent the passage of a title in fee-simple; nor did it imply any condition that the land granted should be held and used for the purpose named in the statute and resolution under which the deed was made.</p>

<p>1. Whilst a public road, which has been completely opened and used for public travel, cannot be changed in its route by the supervisors, even to put it upon its true location as laid out and confirmed by the court: Clark v. Commonwealth, 33 Pa. 112; Morrow v. Commonwealth, 48 Pa. 305; McMurtrie v. Stewart, 21 Pa. 322;</p> <p>2. Yet, supervisors are liable to indictment, when, in opening a road under the order of the court, they make any material change in the line of it, as laid out and confirmed, even though in so doing they are following a change therein made by their predecessors in office, by whom the opening was begun but not completed.</p> <p>3. On the trial of such an indictment, an offer by the defendants to prove the amount of the township’s indebtedness, without an oifer to prove further that the township had insufficient assets to pay the debt, or not taxable property sufficient to raise the money necessary to complete the road as laid out, is not broad enough and is inadmissible.</p>

<p>APPEAL BY E. B. LONG, ADMR., PROM THE COURT MON PLEAS OP LUZERNE COUNTY. OP COM-</p> <p>No. 131 January Term 1890, Sup. Ct.; court below, No. 220 January Term 1887, C. P.</p> <p>On November 27, 1876, judgment in default of an appearance by the defendant was entered for $1,117.75, in favor of Mary A. Rand, administratrix of the estate of George W. Rand, deceased, in an action of debt brought upon a note signed by the defendant. The attorney appearing of record for the plaintiff was Mr. Q. A. Gates. On October 25, 1881, the death of the defendant was suggested upon the record and Mr. Q. A. Gates, who had become his administrator, was substituted as defendant. Upon the same day a writ of scire facias to revive the judgment was issued against Mr. Gates, administrator, etc., by Mr. Alexander Farnham as attorney for the plaintiff. The defendant in the scire facias pleaded payment, and by agreement the cause was referred to Mr. Nathan Bennett, as referee. On March 10, 1882, judgment was entered upon the report of the referee, in favor of the plaintiff, for §1,548.11. On December 16, 1887, a writ of scire facias upon the latter judgment was issued against Mr. Gates, administrator, etc., with notice to terra-tenants, to No. 220 January Term 1887, in the court below, and, after return thereof, judgment for the plaintiff in the sum of §2,023.64 was entered for want of an appearance by the defendant.</p> <p>On November 3, 1888, the following entry was made upon the record at the number and term of the second revival:</p> <p>“ By virtue of a letter of attorney to me directed by the plaintiff, Mary A. Rand, (now Stearns,) I acknowledge satisfaction of the above stated judgment, debt, interest and costs.</p> <p>“ Henry W. Palmer,</p> <p>" “ Attorney in fact.”</p> <p>The power of attornej1', by virtue of which this acknowledgment of satisfaction was made by Mr. Palmer, was executed by the plaintiff on October 25, 1888, before a notary public, and therein the plaintiff acknowledged receipt of the full amount of the debt, interest and costs of the judgment, and appointed “ Alex. Farnham, or any other attorney of record in Luzerne county,” her attorney in fact to enter satisfaction upon the record.</p> <p>On November 5, 1888, Mr. Gates petitioned the court below to strike off the entry of satisfaction, averring by affidavit “ that said judgment did not belong to Mary E. Stearns, nor to the estate of Geo. Rand; nor has it belonged to said estate for the last ten years; nor had the said Mary E. Stearns any right to satisfy the same ;.....that great injustice will be done if said satisfaction is not stricken off at once; that said judgment belongs to the estate of Hon. W. W. Ketcham, deducting therefrom the fees and charges of petitioner, who was the attorney who brought the suit, and in whose charge said judgment has been.” Thereupon the court granted a rule to show cause why the satisfaction should not be stricken off.</p> <p>It did not appear from the docket entries printed in the paper-books, upon whom this rule was served. Depositions were taken under it on behalf of the petitioner and on behalf of E. B. Long, who had succeeded Mr. Gates as administrator of the estate of A. D. King, deceased. The petitioner testified, under objection, that the note upon which the original judgment was recovered, had been placed in the hands of Mr. W. W. Ketcham, now deceased, for collection, in connection with the settlement of the estate of George W. Rand, deceased ; that Mr. Ketcham, having settled with and paid the creditors of said estate, upon the assumption that the note was an available asset, and having gone upon the bench as judge of the District Court of the United States, placed the note in the hands of the witness, saying that it now belonged to him, Mr. Ketcham, and that, upon succeeding in collecting it, the witness should have the half of it for so doing, and the witness subsequently entered the suit in which the original judgment was recovered. The depositions tended to show that the plaintiff did not receive payment of any part of the judgment at the time of signing the power of attorney to satisfy, or at any other time; that she did not know of the judgments recovered in her name, and was unaware even of the existence of the note, until she was informed of it by Long; that Long told her he was investigating to ascertain whether the note was paid or not, advised her to have nothing to do with Mr. Gates, who, he said, claimed to have bought the note from Mr. Ketcham and was endeavoring to collect the money; and that, at the request of Long, she signed the power to satisfy without having read it over, in consideration of a promise by Long that if anything was found to be due her he would pay it.</p> <p>On November 18, 1889, after argument, the court, WOOD■WAiffi, J., without opinion filed, made the rule to show cause absolute; whereupon E. B. Long, administrator of A. D. King, deceased, took this appeal, assigning the order making said rule absolute, for error.</p> <p>When the cause was called for argument in the Supreme Court, a motion to quash the appeal was filed, the grounds thereof appearing in the argument on behalf of the appellee.</p>

<p>APPEAL BY USE PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.</p> <p>No. 239 January Term 1890, Sup. Ct.; court below, No. 9 May Term 1886, C. P.</p> <p>On March 1, 1886, there was entered in the court below a judgment by confession in favor of Henry J. Melan, against William Smith, for $745, with interest. On September 27, 1889, there was filed an assignment thereof as follows :</p> <p>“ Now, July 31, 1889, received in full the sum of eight hundred and twenty-seven and dollars of Margaret Smith, for which I hereby assign, transfer and set over to her, the said Margaret Smith, all my right, title and interest in above judgment, debt, interest and costs.</p> <p>“ In presence of</p> <p>“ W. H. Hines. Henry J. Melan. [Seal.] ”</p> <p>By a paper dated November 18, and filed November 19,1889, Margaret Smith assigned the judgment to M. J. Flannery. On the date last named, the defendant, averring by affidavit that the judgment had been paid in full with the affiant’s own monejq but that the plaintiff had assigned it to the wife of the affiant at her solicitation, prayed the court for a rule to show cause why the assignment should not be stricken off, and the judgment marked satisfied upon the record. Rule granted as prayed for.</p> <p>By agreement of the parties, waiving a formal rule therefor, depositions were taken, to be read upon the hearing of the rule to show cause.</p> <p>Henry J. Melan, the plaintiff, being called by the defendant, testified that the judgment had been paid to the witness in full, except a small balance which Mrs. Smith, the defendant’s wife, agreed verbally at the time of the assignment to pay him; that some of the payments had been made by the defendant and some by Mrs. Smith; that receipts for the first four payments made were given in the defendant’s name, and after that at the request of Mrs. Smith the receipts were drawn in her name, the last receipt for money as coming from the defendant being given in the spring of 1889 ; that no credits were placed upon the record, the witness expecting that the receipts would be produced when the parties came to make a settlement; and that the assignment to Mrs. Smith was given at the request of her attorney. The witness, testified further, under objection, that after he had made the assignment, he went to Mrs. Smith’s attorney, and told him that he did not want the assignment to be in the shape in which it was, but wanted it to be for the balance remaining unpaid, instead of for the whole judgment.</p> <p>The defendant testified, under objection as to his competency, that, in addition to working as a miner, he kept a restaurant in his house for four years, his wife looking after the business during the hours when the witness was away at work; that she paid all the bills, but sometimes when she was busy she would tell the witness to pay them; and that all the payments to Melan were made with money of the witness. In his cross-examination he testified: “ I have been to Mr. Melan’s house twice to pay money. Once I was sent by my wife and once by myself. There may have been two or three payments made by me in my house that I made by my wife’s direction, and three or four I made on my own account.”</p> <p>Mrs. Margaret Smith, being called for the plaintiff, and objected to as an incompetent witness to testify against her husband, testified as follows :</p> <p>“ Q. State whether you have been doing business in your own name in 1887 and 1888. A. Yes. In this house, corner Hazle and Miller streets. I was selling drinks, cigars, etc., and did my housework besides. My husband did no business for himself in 1887 and 1888, except to help himself to pocket money out of my earnings. None of the money paid since the 1st of January, 1887, until the judgment was paid, belonged to my husband. Some of the money I made working for Mr. Harvey. The rest I made selling drinks.....During the time I ran the business, my husband worked in the mines, and up to March, this year. I never had a license for the place. When it was licensed, it was licensed in my husband’s name. 'The goods were shipped and the bills made out in his name. ...”</p> <p>Mrs. Smith and Flannery, her assignee, both testified that the latter paid her $600 for the assignment to him.</p> <p>After argument the court, WoorrwARD, J., made the rule absolute, filing the following opinion:</p> <p>The assignment of this judgment by the plaintiff to the wife of the defendant cannot be sustained. Even her own testimony shows that all the money paid by her since 1887, to apply on the judgment, came from the unlicensed sale of liquor on premises owned and occupied by her husband, and for the sale of which the law could hold him criminally responsible. It was in no sense her sole and separate estate, and as such protected and assured to her by the act of 1887. The plaintiff admits that the judgment has been paid, or very nearly paid, and under all the evidence submitted to us it seems clear that, hi contemplation of law, the money came from the husband, and not from the wife. It was the intention of the defendant when he made the payments to have them applied toward the satisfaction of the judgment; and the plaintiff had no legal right, without his consent, to change the appropriation of the money to his prejudice: See Jamison v. Collins, 88 Pa. 859; Martin v. Draher, 5 W. 544. Upon the whole case, and independently of the question of the wife’s competency as a witness, we are of the opinion that neither of the assignments of this judgment was valid in law. It follows that upon payment of the balance, if any there is remaining due upon the judgment, with the costs accrued, the judgment should be satisfied of record. The rule is made absolute. See Felt v. Cook, 95 Pa. 247.</p> <p>—Thereupon the use plaintiff, having excepted to the order of the court, took this appeal, specifying that the court erred : In making absolute the rule to show cause.</p>