text:
    Beil v. Bonneville Portland Cement Company, Appellant.

      Negligence — Master and servant — Cement mill — Dangerous locality— Contributory negligence — Question for jury.

    In an action by a carpenter and millwright against his employer, a corporation operating a cement mill, to recover damages for personal injuries, it appeared that the plaintiff was directed by the assistant superintendent of the defendant, to examine some machinery in the mill that had become clogged. To make the examination he had to lie down on his stomach and turn his head. As he was thus lying his feet were extended in tire direction of an unprotected running chain and sprocket, and one of his feet was caught in the chain and mangled. There was evidence that the mill was dark, that it was customary in other mills to guard the chain and sprocket, and that although the plaintiff knew that the mill had stopped, he was not aware that the chain was running. Held, that defendant’s negligence and plaintiff’s contributory negligence were for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued March 12, 1907.
    Appeal, No. 371, Jan. T., 1906, by defendant, from judgment of O. P. Northampton Co., Sept. T., 1905, No. 80, on verdict for plaintiff in case of Henry Beil v. The Bonneville Portland Cement Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Scott, J.

      The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Edward J. Fox, with him James W. Fox, for appellant.

      Fred B. Gernerd, with him George W. Geiser, for appellee.
    June 3, 1907:
   Opinion by

Mr. Justice Brown,

The plaintiff below, a carpenter and millwright, had been in the employ of the defendant company for about four months prior to April 10, 1905, the date of the injuries sustained by him. On the morning of that day he was directed by the assistant superintendent to go to a grinding mill, known as a Kent mill, for the purpose of repairing it. At noon it was supposed the difficulty with the mill had been overcome, but in the afternoon he was again directed to go to it, as it was clogged and not in working order. It was situated near the middle of the building and had attached "to it a conveyor, which conveyed the ground clinker to a separator, where the finely ground cement was separated from that which was too coarse for use, the coarse portions being conveyed back to the mill and ground over. The conveyor was operated by a chain and sprocket which ran near the Kent mill, at a distance of about four feet from it. The space between the sprocket wheel and the floor was about two inches. The assistant superintendent went with the plaintiff to the mill and asked him what was the matter with it. The plaintiff said he could not tell, and the assistant superintendent then asked him to try to locate the trouble. The appellee said they might be able to locate it by looking in from the bottom through a hand hole. He was told by the assistant superintendent to try to locate it in that way. The hand hole or opening in the bottom of the mill was oval in shape, about six inches long and three inches wide. To look into this hole the plaintiff was compelled to lie down on his stomach and turn his head. He had a lighted torch in his hand which he inserted in the hole, and as he was thus lying, his feet extending in the direction of the running chain and sprocket, which were unprotected, one of them was caught in the chain and mangled.

On the question of the appellant’s negligence in assigning the plaintiff to work in a place that was not reasonably safe, the court submitted to the jury’s consideration the darkness of the mill, the danger to the employees from the unguarded and unprotected chain and sprocket and the failure of the assistant superintendent, who was present when the accident occurred, to stop them before directing the plaintiff to locate the trouble in the mill. The darkness of the room was fairly for the jury’s consideration in view of the close proximity of the chain and sprocket to the place where the employee was directed to examine the mill, for the danger of coming in contact with them was greater in darkness than in light. The testimony of an expert witness called by the plaintiff was that, though chain and sprocket wheel were appliances in ordinary use in cement plants throughout the country, they were very dangerous if not protected or covered, and he did not know of any in general use that were not protected, if they wrere within reach of the workmen. No attempt was made to contradict this. Within reach of these unprotected appliances, not stopped by the assistant superintendent, though he could readily have stopped them, the plaintiff was directed by him, his superior, to locate the cause of the trouble in the mill. In view of this the question of the defendant’s negligence was clearly for the jury, for impartial, fair-minded, reasonable and capable men could fairly conclude that the company had not exercised proper care under the circumstances.

It is urged, however, that even if the negligence of the defendant was a question for the jury, that of the plaintiff, contributing to his injuries, was so clear that the court ought to have instructed the jury he could not recover. It may be conceded he was acquainted with the general situation. He had not helped to put up the chain and sprocket, but knew they were there. His work was that of carpenter and millwright, and not that of a machinist. If it affirmatively appeared that he knew the chain and sprocket were running, unguarded and uncovered, at the time he was directed to look for the trouble in the mill, there would be much force in the contention of appellant’s counsel that his own carelessness in putting his foot in contact with them was responsible for his injuries. He testified that when he was directed to go to work and lie down on the floor he did not see the chain and sprocket, and could not tell whether they were running or not. The mill was not running, and why, as a matter of law, ought he to be held to have had knowledge that the chain and sprocket had not also stopped ? His superior knew they were running, uncovered and unprotected. With such knowledge he directed his subordinate to work in the immediate presence of their danger, and in obeying this direction, with no affirmative proof that the employee knew he was in peril, his conduct cannot be declared by the court, as a matter of law, to have been negligence. Whether it wTas, was also for the jury, and, in a charge admitted by counsel for appellant to be free from error, if the case was for them, the question of the plaintiff’s contributory negligence was submitted under instructions that would have resulted in a verdict for the defendant if, under the evidence, there could fairly and properly have been a finding that the plaintiff had been negligent.

The single assignment of error, complaining of the refusal of the court to direct a verdict for the defendant, is overruled and the judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Bond, Appellant, v. Philadelphia.

      Road law — Change of grade — Lot below surface of street — Damages— Viewers — Act of May 21, 1895, P. L. 89.
    Where a lot, before the change of grade of an abutting street, was five feet below the surface of the street, and after the change of the grade of the street was sixteen feet below the street level, the owner, in proceedings to assess damages, will not be permitted to show the amount and cost of the fill required within the surface of the lot, to a height which would correspond with that it had before the change in grade was made.
    Where a witness called to estimate the damage to property caused by a change of grade does so by fixing the value before and then subtracting from it the cost of bringing the lot to the new grade, the testimony of such witness is properly stricken out.

      The fact of the additional elevation, as affecting the value of the property after the change may be shown, but not the specific cost of changing the whole surface of the property by lifting it all up to a new grade.
    In a proceeding to assess damages for injuries resulting from the change of grade of a street, the city may show that the elevation of the street was a part of a general scheme of improvement adopted by the city, which included among other things a public park in the neighborhood of plaintiff's land. Whatever affects the value of the land in the estimation of the general buyer, whether to raise or depress, may be shown.
    On an appeal from an award of viewers appointed by the court to assess damages for injuries resulting from change of grade of a street, it is within the discretion of the court whether to allow or refuse the request for a view of the premises by the jmy.
    The Act of May 21, 1895, P. L. 89, providing for a view as a matter of right, has regard only to actions brought and not to proceedings on appeal from the award of viewers.
    Argued March 25, 1907.
    Appeal, No. 1, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3,969, on verdict for defendant in case of Catherine A. Bond v. Philadelphia.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Beitler, P. J.
    The facts appear by the opinion of the Supreme Court.
    At the .trial the court refused to permit the plaintiff to show what would be the cost of making the property conform with the new grade precisely as it conformed to the old grade. [1, 2]
    The court refused the plaintiff’s request that the jury be permitted to examine the property. [17]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions; (17) refusing to permit the jury to view the premises.

      Alex. Simpson, Jr., with him Harvey Gourley and Henry 8. Cattell, for appellant.
    The plaintiff should have been allowed to prove the amount and cost of the fill made necessary by the change of grade: Dawson v. Pittsburg, 159 Pa. 317; Patton v. Philadelphia, 175 Pa. 88; Reyenthaler v. Philadelphia, 160 Pa. 195; Darlington v. Allegheny, 189 Pa. 202; Shano v. Bridge Co., 189 Pa. 245; Mead v. Pittsburg, 194 Pa. 392.
    The court permitted proof of, and charged the jury respecting certain proposed future improvements, beneficial to the whole southern section of the city. These tended to minimize' the special damage done to plaintiff’s land by the widening and elevation of Broad street: Markle v. Philadelphia, 163 Pa. 344; Aswell v. Scranton, 175 Pa. 173; Dawson v. Pittsburg, 159 Pa. 317; Watson v. R. R. Co., 37 Pa. 469; P., V. & C. R. R. Co. v. Rose, 74 Pa. 362.
    The court erred in refusing plaintiff’s motion that the jury be taken to view the premises: Zug v. Pittsburg, 194 Pa. 367; Frazee v. Light & Heat Co., 20 Pa. Superior Ct. 420.

      J. Howard G-endell, with him James Mcorn, assistant city solicitor, and John L. Kmsey, city solicitor, for appellees.—
    The case is ruled by Mead v. Pittsburg, 194 Pa. 392. See also Chambers v. South Chester, 140 Pa. 510.
    June 3, 1907:
   Opinion bt

Mr. Justice Stewart,

The plaintiff is the owner of a tract of vacant land in the city of Philadelphia, containing about eight and a quarter acres. Broad street intersects it, affording it a frontage on the west side of 243 feet, and on the east side of 460 feet. Before the change in grade of the street, that part on the ' west side was five feet below the surface of the street, while that on the east side, was three feet above. By municipal action the grade in the street has been elevated some eleven feet, and in consequence plaintiff’s land on the one side is now nine feet below the surface of the street, and on the other side sixteen feet below. In the proceeding to determine what damage plaintiff had sustained, if any, by this change, the plaintiff offered testimony to show the amount and cost of the fill required to bring the surface of her lot to a height which would correspond with that it had before the change in grade was' made! The offer was excluded, and this ruling of the court is assigned for error. There are a number of specifications, but all may be considered together.

It is sought to distinguish this case from Mead v. Pittsburg, 194 Pa. 392, upon which the court relied in its ruling, by reason of the fact that there the offer was to show the cost of the fill required in order to make the surface of the land correspond with the level of the street, while here the offer had regard to the cost of only so much of the fill as would be necessary to bring the surface of the lot as near to the level of the street as changed, as it had been to the level of the street before the change was made. In that case as in this, the original level of the lot was below the level of the street, and while it is true that there the offer was to show the cost of the fill that would bring the lot to a level with the elevated street, it is manifest from the opinion that the same reasons that prevailed there to exclude the offer must prevail here. The determining feature in that case was the fact that before the grade of the street was changed, the plaintiff’s lot was below the street surface. The opinion recognized the right to show the cost of restoration to the original condition where such expenditure is a necessary one; as where by a change in the grade of a street a lot, which before was on a level with the street, has been left above or below it. “ In that kind of a case,” says the court, “the change of grade has inflicted a special change in the condition of the property as it was, for which the party is entitled to be compensated, because a restoration to (he original condition, as near as may be, is a subject of necessary expenditure which may be properly shown, not as a basis of specific recovery, but as affecting the value before and after the injury. But here the whole lot of the plaintiff having already been below the level of the adjoining streets, the plaintiff is not entitled to have his entire property lifted up to a level of the street as is made by raising the grade. There is simply an increase in the elevation of the grade, and the fact of such additional elevation, as affecting the value of the property after the change, may be shown, but not the specific cost of changing the whole surface of the property by lifting it all up to a new grade. The surface never was at such an elevation, and there is no obligation to put it there, but if the fact of the additional elevation of the grade is an injury to the market value of the property, the extent of that injury may be shown, and that is the difference in market value before and after.” The plain logic of the decision is that where conditions have been interfered with which called for no change in order to make the land available and adaptable for the purposes which determine its market value, — in the present case for building purposes, no other value being suggested,— the restoration of these conditions is what the general buyer would contemplate, and the cost of such restoration is to be regarded as a necessary expenditure for which the party is entitled to compensation; not, however, to be made the basis of specific recovery, but to be considered as an element affecting the market value of the land. Such conditions did not exist in the present case any more than in the case referred to; plaintiff’s land never ivas at the street level, and the change is only one of degree. It is impossible to understand how any such inquiry as that proposed would aid the jury in ascertaining the difference in market value before and after the change. It ought to be quite as easy to determine the market value of a lot sixteen feet below the surface of the street it adjoins, as the market value of one only five feet below. The witnesses had no difficulty in arriving at the market value of plaintiff’s lot when it was five feet below the surface of Broad street; the same familiarity with values ought to enable them to say what its market value now is when sixteen feet below. If this be so, and we see no reason why it should not be, any inquiry as to the cost of filling would be irrelevant and of no help in the determination of the real question. The assignments of error which refer to the exclusion of evidence offered to establish the amount and cost of fill required are overruled.

James Bond, a witness called by the plaintiff, testified in his examination in chief that the market value of the land before the change in grade of the street was $125,000, and that its value after the change was $60,000, thus fixing the damage at $65,000. On cross-examination he said that he had arrived at his estimate of present value by estimating in a general way the cost of bringing the lot up to the grade of the street, and the area of the ground taken for the widening of the street at a specific price per foot, and by then deducting the aggregate value of these two items from what he had determined as the market value of the land before the change. This was but another way of introducing into the case the element of cost of filling, somewhat more indirect than the method first attempted, but equally objectionable. In the one case, had the offer been admitted, the jury would have had the figures from which they could have made their own calculation; in the other they would be given the result, without the figures, on which the calculation was based. If it was improper for the jury to take into consideration the cost of the fill, it would be equally so for them to consider the conclusions of the witness based on conditions and circumstances which they were instructed properly enough to disregard. There was no error in-striking out the testimony of this witness.

The admission of evidence to show that the elevation of Broad street was a part of the general scheme of improvement adopted by the city, which included, among other things, a public park in the neighborhood of plaintiff’s land, is assigned as error. It is but repeating a familiar principle that whatever would affect the value of the land in the estimation of the general buyer, whether to raise or depress, may be shown. If the establishing of a public park convenient to plaintiff’s land would add to its value, it is hardly supposable that with the ground for the park already paid for and the park itself partly improved, the general buyer would not allow the probability of its completion to influence his bid. The evidence was properly admitted.

If was within the discretion of the court whether to allow or refuse the request for a view of the premises by the jury. The proceedings were begun before a jury of view. The Act of May 21, 1895, P. L. 89, making such view a matter of right, has regard only to actions brought, and not to proceedings on appeal from the award of viewers appointed by the court. This was expressly ruled by the Superior Court in Frazee v. Light & Heat Company, 20 Pa. Superior Ct. 420, and in the view there expressed we fully concur.

The assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Potter,

text:
    Robinson’s Trust.

      Corporations — Dividends — Smp dividends ■— Dividend certificates — Principal and income — Dije tenant — Remainder-man.
    Where a corporation expends a portion of its income applicable to dividends, in the purchase of real estate and in permanent improvements, and subsequently issues to its stockholders obligations designated as dividend obligations, equal to the amount spent on real estate and improvements, such obligations are scrip dividends; and as such are the property of a life tenant rather than the remainder-man, under a deed of trust which directed that all dividends on the stock described in the deed, whether in money or scrip of any description, were to go to the life tenant.
    Argued March 26, 1907.
    Appeal, No. 98, Jan. T., 1907, by Hamilton M. Barksdale, Executor of the will of Susan Macfarland, deceased, from order of C. P. No. 1, Phila. Co., March T., 1897, No. 1,232, dismissing exceptions to auditor’s report In re Trust Created by Moncure Robinson by deed of trust dated February 21,1881.
    Before Mitchell, C. J., Fell, Mesteezat, Potter and Stewaet, JJ.
    Reversed.
    Exceptions to report of Henry G-. Swayne, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      John Oadwalader, Jr., for appellant.
    The whole question involved is to determine the intention of the donor of the trust: Cook on Corporations, sec. 557.
    There can be no question that the dividend obligations which had been made out of profits previously earned were scrip dividends: Wiltbank’s App., 64 Pa. 256; Eisner’s Est., 175 Pa. 143.
    It is submitted, therefore, that the words “ dividends whether in money or scrip of any description ” are used by the donor to cover every possible kind of scrip dividend that might be issued and that they do in fact exactly describe and include the present “ dividend obligations.”

      The finding of the auditor is based almost entirely on the line of Pennsylvania oases beginning with Earp’s App., 28 Pa. 368, and coming down to Kemble’s Est., 201 Pa. 523, in which this court has adopted certain rules for determining what constitutes income and what principal in contests between life tenants and remainder-men. The cases have very little, if any, application to the present one, owing to the fact that not one of them turned on the language of the deed or will.
    The issue of the new stock had in this case caused no serious diminution in the value of the old stock : Moss’s App., 83 Pa. 264; Lowry v. Farmers’ Loan & Trust Co., 172 N. Y. 137 (64 N. E. Repr. 796).

      Hewry G. Boyer, for appellees.
    The obligations belonged to the remainder-man : Earp’s App., 28 Pa. 368; Wiltbank’s App., 64 Pa. 256; Vinton’s App., 99 Pa. 434; Eisner’s Est., 175 Pa. 143; Biddle’s App., 99 Pa. 278; Connolly’s Est., 198 Pa. 137; Gibbons v. Mahon, 136 U. S. 549 (10 Sup. Ct. Repr. 1057).
    June 4, 1907:
   Opinion by

Mr. Justice Potter,

The question presented for determination by this appeal is whether certain so-called dividend obligations, issued by the Richmond, Fredericksburg and Potomac Railroad Company to its stockholders, were in fact dividends ” upon the capital stock, and as such to be properly awarded to the life tenant; or whether they in reality constituted a division of the capital, which should properly go to those entitled to take in remainder.

On February 21, 1881, Moncure Robinson, Sr., a resident of Philadelphia, executed a deed of trust, under which he assigned to his son, Moncure Robinson, Jr., in trust for Susan McFarland, twenty shares of the common stock of the Richmond, Fredericksburg and Potomac Railroad Company “ to receive any dividends which may be made on the shares of stock above mentioned, whether in money or scrip of any description, and pay over, or transfer the same, to the said Susan McFarland, for the term of five years, from this date, at the expiration of which period, he is authorized to transfer the said shares of stock, on the books of the said company, to the said Susan McFarland, if in his opinion it should be advisable for him in the interest of the said Susan McFarland to do so. If at the expiration of the said term of five years, it should seem to him in the interest of the said Susan McFarland, not advisable to transfer the said shares to her, he is then authorized to hold the same under this trust, such longer period as he may deem it best for the interest of the said Susan McFarland, to do so.

“ In the event of the said Susan McFarland dying without children, the shares hereby conveyed are to .be retransferred to the said Moncure Robinson (the signer of this instrument) in fee simple or absolute property, if he be then living, or if he be not living, to his widow, Mrs. Charlotte R. Robinson, or if neither be living, to their personal representatives.”

Some nine months after the creation of this trust, the railroad company issued what were known as dividend obligations, to an amount equal to seventy per cent of the par value of the common stock of the .company; and of these obligations $1,400 in par value came into the hands of Moncure Robinson, Jr., as trustee for Susan McFarland. Upon these dividend obligations a dividend of like amount to that payable on the common stock of said company was payable. The income of the twenty shares of common stock aforesaid and the dividends upon the dividend obligations were paid to Susan McFarland, the cestui que trust, during the period of five years provided for in the trust deed. In the exercise of his discretion, the trustee elected not to transfer the stock absolutely to Susan McFarland, and the trust was continued until her death on September 10, 1905.

Moncure Robinson, Jr., died December 13, 1896, and the court, under the petition of Susan McFarland, substituted Charles Ohauncey, Esq., the present trustee. Moncure Robinson, Sr., lived more than twenty years after the creation of the trust, and died November 10, 1901; and his widow died August U, 1905. Under the instrument creating the trust, “ the said shares ” go to “ the personal representatives ” of Moncure Robinson, Sr., and Charlotte R. Robinson, his wife.

The account of the trustee as filed, showed a balance of cash for distribution realized from the sale of the securities which formed the corpus of the estate, and in addition he reported the dividend obligations, which have been held intact, amounting to $1,400 par value. The account was referred for audit and distribution to TIenry G. S wayne, Esq., and he concluded that the facts of the case brought it within the rule which has often been applied to trusts created by will, under which undivided profits, as between life tenant and remainder-man, are appprtioned as of the date when the trust begins. He therefore awarded the proceeds of the dividend obligations, less a small amount accruing after the trust began, to the persons entitled to take in remainder under the deed. The court below dismissed exceptions to the ruling of the auditor, and confirmed his report. This appeal is by the executor of the life tenant. It appeared from the testimony before the auditor, that the settlor, Moncure Robinson, Sr., was a large stockholder in the railroad company at the time the trust was created; and it is argued by counsel for the appellant that .he was presumably familiar with the company’s condition and the probability that in the near .future there would be a distribution of the undivided profits, by means of these dividend obligations. U nder the language of the trust deed, all dividends on the stock, whether in money or scrip of any description, were to go to the life tenant.

The so-called dividend obligations were issued in pursuance of a resolution by .the board of directors reciting that the net profits, which might have been paid to the holders of the common stock, had been appropriated during several years to the purchase of real estate and in making permanent improvements, and for the purpose of dividing among the common stockholders the amount thus withheld, these dividend obligations, or dividend certificates, were issued, which entitled the holder to receive an amount equal to the dividend paid upon the same number of shares of common stock, and also to share in a corresponding proportion in any division of the assets of the company. If these profits had been paid out from year to year, to the common stockholders, as they might confessedly have been, no one wuuld have suggested that they constituted a division of the capital stock. What difference did it make that having been allowed to accumulate during a series of years, they were finally distributed by means of these certificates in a lump sum? The fund had been created by the net earnings of the corporation and it was held as part of the general assets, until in the judgment of the directors the time came when it was proper to distribute it among the stockholders from whom it had been withheld. The capital of the company was not diminished by this action; the method employed was simply a mode of distributing the profits earned by the employment of the capital during an extended period, and which had in the meantime been used in the purchase of real estate and in permanent improvements.

The certificates were clearly scrip dividends. “ A scrip dividend is a dividend of certificates giving the holder certain rights which are specified in the certificate itself. These dividends are usually declared when the company has profits which are not in the shape of money, but are in other forms of property, and the company wishes to anticipate the time when the property may be sold for cash, and the cash distributed by a money dividend. . . . Sometimes the certificate so far partakes of the character of a certificate of stock as to entitle the holder to dividends:” Cook on Corporations, sec. 535. See also note to same, as follows: “A dividend of scrip — i. e., a paper entitling the holder to dividends equal to dividends thereafter declared on the capital stock — is practically a stock dividend, except that the scrip cannot vote, and provision is generally made for taking it up in some manner. Such a divdend was involved in Gordon v. Richmond, etc., R. R. Co., 78 Va. 501.” That case related to the identical “dividend obligations ” which are now in question here.

“ Dividends whether declared in cash, in scrip, or in new shares, are presumptively dividends of profits, since a corporation has no power to make á dividend of its capital stock except in liquidation. We may conclude, therefore, on principle that presumptively every dividend, whether in cash, in scrip, or in new shares, goes to him who was the beneficial holder of the shares at the time when it was declared. This will carry every dividend presumptively to the life tenant instead of to the remainder-man:” Thompson on Corporations, sec. 2193. It is true that the presumption often yields upon inquiry into the real substance of the transaction, but in the present case such inquiry shows no reason why the presumption should yield. Of course the payment of any dividend by a corporation in active Operation, takes away a portion of the assets which have been temporarily increased by the earnings, and just to that extent the value of the shares in the market may be lessened. But that fact is of no relevancy in determining the question of whether the dividend is to be regarded as income, to the life tenant, or as capital for the reminder-man. That question is to be determined by the origin of the fund from which the dividend is paid: Lowry v. Farmers’ Loan & Trust Co., 172 N. Y. 137. It is admitted that the fund here for distribution was made up of net earnings or profits, which were avowedly disbursed as such by the directors of the company, in the form of scrip dividends. They are therefore properly to be regarded as income, and not as capital.

The trust in this case was created by deed, to take effect at once, and was not postponed, as where a trust is created by will, to take effect only upon the death of the testator, it may be years afterwards. But aside from this, it is safe to say that in every case the intention of the settlor of the trust, so far as it can be ascertained, must control. “ The intent of the grantor, or testator, is the pole-star, and will be carried out by the courts:” Cook on Corporations, sec. 557. The intent of the grantor here, which he plainly expressed, was that all dividends declared upon the stock in question, of whatever nature, were to go to Susan McFarland. If declared in cash, they were, in the language of the deed, to be “paid” over. If in scrip of any description, they were to be “transferred.” Our consideration of the instrument creating the trust leads us to the conclusion that the term “scrip of any description” used therein includes the so-called “dividend obligations,” and that the intention of the grantor was that they should go to the life tenant.

The judgment of the.court below is reversed, and the record is remitted that distribution may be made in accordance Avith this opinion. •


author: Mr. Justice Elkin,

text:
    Commonwealth v. Delero, Appellant.

      Criminal law — Murder—Continuance—Discretion of court — New trial.

      The action of the court of oyer and terminer in refusing a continuance of a murder trial, where only fifteen days had elapsed from the date of the murder to the date of the trial, will not be reviewed, where it appears that no injustice resulted, and it also, appears the witnesses in the case were of a floating population, and that a speedy trial was necessary to insure their attendance.
    An application for a continuance on the ground of want of time for preparation by counsel and for obtaining witnesses in behalf of a defendant, is an appeal to the sound discretion of the court, and an appellate court will not review the exercise of such discretion except for gross abuse.
    In the absence of a rule of court or an act of assembly the court is not bound to follow a custom of continuing without cause a criminal case which has been returned within ten days of the beginning of the session.
    The discretion of the court below in refusing to grant a new trial in a murder case is not reviewable error.
    Argued April 15, 1907.
    Appeal, No. 150, Jan. T., 1907, by defendants, from judgment of O. & T. Lancaster Co., Sept. T., 1906,-No. 172, on verdict of murder in the first degree in case of Commonwealth v. Anthony Delero, Joseph Celione, Stephen Oarlui and Silverio Rodelli.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before Landis, P. J.
    The circumstances of the killing are recounted in the opinion of the Supreme Court.
    Verdict and judgment of guilty of murder of the first degree.
    On a rule for a new trial Landis, J., filed an opinion which was in part as follows:
    It was alleged that, in accordance with an unwritten rule of the court, the cases, having been returned within ten days of the beginning of the sessions, should have been continued without other cause to the next term. After examination counsel candidly admitted that they had found no rule of court upon the subject and no act of assembly to sustain their position, and this is, therefore, not now open to doubt. Without going into the question of right, we may concede that cases have been at times continued upon this ground; but because of this, however, I cannot see that the court was therefore bound to follow such a'procedure. As a uniform practice, it was a bad practice at best, even though existing. In these more modern times, it is impossible to dispatch business and yet conform to old customs of slow trials and indefinite delays. While every defendant is entitled to a fair trial, it should be as expeditious as the circumstances fairly warrant, and at least the proverbial law’s delays should be, as far as possible, avoided. The rights of a defendant occupy no higher ground than the rights of society, and when a custom exists which impedes instead of aids in the administration of justice, it should be abrogated. It is better in its breach than in its observance. Therefore, even if it was for the first time broken in this trial, and the defendants thus felt the force of its repudiation, that fact should not affect the results arrived at, if they received a fair trial and their whole case was properly presented before ¿n intelligent jury. I believe that they have no just reason to complain in this regard.

      Errors assigned among others were (1) in refusing a continuance ; (2) in refusing a new trial; (3) in refusing the defendants the benefit of a custom alleged to prevail in the criminal courts of Lancaster county, to wit: that any defendant returned to court less than ten days before the beginning of the sessions, is entitled as of right to a continuance until the next session.

      E. Frank Eshleman, with him M. F. Sheaffer, for appellant.
    The trial judge in this case abused his discretion in not continuing the case, so that the defendants might have time to prepare for trial: Dougherty v. Com., 69 Pa. 286; John v. State, 38 Tenn. 48; Polite v. State, 78 Ga. 347; State v. Lund, 49 Kan. 580 (31 Pac. Repr. 146); State v. Rhea, 25 Kan. 576; Howell v. State, 5 Ga. 48; Maddox v. State, 32 Ga. 581; Murphy v. Com., 92 Ky. 485 (18 S. W. Repr. 163); State v. Wood, 68 Mo. 444; Chandler v. Barker, 2 Harr. (Del.) 316; Schaffer v. Schaffer, 5 N. Y. Supp. 544; State v. Pool, 50 La. Ann. 449 (23 So. Repr. 503); Dunn v. The People, 109 Ill. 635; Conley v. The People, 80 Ill. 236.

      J W. Brown, district attorney, for appellee.
    A motion of postponement is addressed to the sound discretion of the court, and the refusal of such motion is not ordinarily assignable for error even if excepted to at the time : Commonwealth v. Dietrich, 7 Pa. Superior Ct. 515; Com. v. Craig, 19 Pa. Superior Ct. 81; Com. v. Buccieri, 153 Pa. 535; Com. v. Bezel, 168 Pa. 603; Com. v. Renze, 216 Pa. 147.
    A denial of a motion for a new trial is not reviewable in an appellate court: Com. v. Fitzpatrick, 1 Pa. Superior Ct. 518; Howser v. Com., 51 Pa. 332; Cathcart v. Com., 37 Pa. 108; McGinnis v. Commonwealth, 102 Pa. 66; Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Eisenhower, 181 Pa. 470.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

Sixteen Italians were living in a shanty near the railroad work in which they were engaged. On the evening of August 30, 1906, the four defendants arrived at the shanty and remained with their countrymen until between eight and nine o’clock, at which time the men living at the shanty prepared to retire for the night. As soon as they got inside the shanty the four defendants entered and proceeded to demand money from them. When they got money from a man they ordered him to go to bed. When they came to Albamese, the murdered man, he told them he had only fifty cents, which they refused to accept with disparaging remarks. Albamese insisted that it was all he had, and informed them if they would go upstairs with him he would show them he had no more money. One of the defendants went upstairs with him while the other three remained downstairs and proceeded to rob one of the inmates of the shanty. In a few minutes thereafter one of the defendants who had remained downstairs joined Albamese and the other defendant upstairs, and while tbe two defendants upstairs were wrangling with Albamese about his money, the two defendants downstairs stood at the door of the shanty, one with a revolver and the other with a stick, declaring they would kill anyone who attempted to get out. While the two upstairs were quarreling with Albamese one or both of the defendants at the door called out to the two upstairs : “ Stab him, shoot him, or do anything with him.” When the two defendants upstairs found that Albamese either would not or could not give them any more money, as the evidence clearly shows, they proceeded to murder him. There were upwards of a dozen stab wounds on his body and head. The left lung was pierced, the right kidney cut, and a bullet passed under the left shoulder, penetrating the lung and heart and lodging in the spinal column. After the killing the four defendants left the shanty together, avoiding the public road, and secreted themselves during the night in woods some miles away. Three of them remained in the woods while the fourth one went to Parkesburg and purchased new clothing, caps and other things for them. After they had changed their clothing they separated, two walking in one direction, and the other two taking a train some hours later. On the night of the killing, warrants were sworn out charging murder, and the defendants were arrested and committed on the following day.

These are the substantial facts, proven at the trial, on which the commonwealth relies to sustain a conviction for murder of the first degree. That a brutal crime was committed is not denied, nor can it be successfully contended that all of the defendants were not in some measure responsible for what occurred, but it is strenuously urged that all of the defendants were not equally guilty, and that a new trial should be granted in order that all of the facts may be more fully presented. On this question the learned trial judge charged the jury that if the defendants were jointly concerned in robbing the Italians living at the shanty, and in the perpetration of the robbery, Albamese was killed by one or two of the defendants, while the others were present aiding in the accomplishment of the unlawful purpose, all should be convicted of murder, for under such circumstances the act of one was the act of all. On the other hand, the jury was carefully charged, if satisfied by the evidence, that the defendants entered the shanty for no unlawful purpose, but, after they were there, one or more of them killed Albamese, either willfully and premeditatedly, or in a sudden quarrel, then such person could only be convicted of the crime which the jury should determine from the evidence he or they committed. The general charge carefully instructed the jury as to the different degrees of murder, manslaughter, and all other legal questions arising under the facts of the case, and no error was committed in these respects. After a careful examination of the charge to the jury by the learned trial judge, and of his opinion refusing the motion for a new trial, we are satisfied that the case was properly presented and that no rights vouchsafed to the defendants by law were denied them.

The principal ground of complaint suggested by the assignments of error is that the trial judge abused his discretion in not continuing the case, in order that the defendants might have more time to prepare for trial. The crime was committed on August 30, 1906, and on September 13, following, the parties and their witnesses being present in court, together with counsel, the trial began. It must be conceded that the time to prepare for trial was short, and if it appeared that any injustice had been done the defendants or that any of their rights under the law had been denied them, or that any additional meritorious defense might have been presented, which would have changed the result of the verdict, if the case had been • continued, or if there was any reasonable doubt about the guilt of the parties, this court might feel constrained to review the discretion of the learned court below in refusing to continue the case. The settled rule of our cases is that an application for a continuance on the ground of want of time for preparation by counsel and for obtaining witnesses in behalf of a defendant, is an appeal to the sound discretion of the court, and that an appellate court will not review the exercise of such discretion except for gross abuse: Commonwealth v. Buccieri, 153 Pa. 535; Commonwealth v. Bezek, 168 Pa. 603; Commonwealth v. Renzo, 216 Pa. 147. We are not convinced that there was any abuse of the sound discretion of the court in this case. Indeed, under its peculiar facts we are inclined to the opinion that the merits of the case could be better shown at an earlier than at a later trial. All of the witnesses to the crime, as well as the defendants themselves, belonged to a floating population without any fixed residence, and went about from place to place, never remaining long in one location. A delay in the trial would have made it difficult for either the commonwealth or the defendants to obtain witnesses. At the trial the commonwealth produced ten out of fifteen persons who lived at the shanty, as witnesses in the case. The other five had disappeared, so that neither side was able to produce them. The ten eyewitnesses and the four defendants testified to all of the material facts and we do not see that any injustice could have been done the defendants by an early trial when such a large number of witnesses were produced to detail the circumstances surrounding the killing. A delay in the trial would have given the opportunity for all of the witnesses to leave the jurisdiction, and. perhaps the state or country. It is not the intention of the law to aid criminals in their attempt to go unwhipped of justice. A decent regard for the rights of society, as well as of the rights of defendants, must be observed if the law is to be vindicated.

The assignments of error are without merit. The rulings of the learned trial judge, the charge to the jury and the opinion refusing a new trial are amply sustained by both reason and authority and we find nothing contained therein to justify a reversal by this court.

As to the application of the so-called ten day rule, which question is raised by the third assignment of error, we adopt the reasons stated by the learned trial judge in his opinion re- ’ fusing a new trial.

The assignment of error raising the question that the learned court below had abused its discretion in refusing to grant a new trial cannot be sustained. The discretion of the court below in refusing to grant a new trial is not reviewable error: McGinnis v. Commonwealth, 102 Pa. 69; Alexander v. Commonwealth, 105 Pa. 1; Commonwealth v. Eisenhower, 181 Pa. 470.

The judgment is affirmed, and it is directed that the record be remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


text:
    Commonwealth v. Rodelli, Appellant.
    Argued. April 15, 1907.
    Appeal, No. 151, Jan. T., 1907, by-defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 173, on verdict of guilty of murder of the first degree in case of Commonwealth v. Silverio Rodelli.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

For reasons stated in the opinion this day filed in Commonwealth v. Anthony Delero, 218 Pa. 487, the judgment in this case is affirmed and it is directed that the record be remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


text:
    Commonwealth v. Stephen Carlui, Appellant.
    Argued April 15, 1907.
    Appeal, No. 152, Jan. T., 1907, by defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 174, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stephen Carlui.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

For reasons stated in the opinion this day filed in Commonwealth v. Anthony Delero, 218 Pa. 487, the judgment in this case is affirmed and it is directed that the record be remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


text:
    Commonwealth v. Celione, Appellant.
    Argued April 15, 1907.
    Appeal, No. 153, Jan. T., 1907, by defendant, from judgment of O. & T. Lancaster Co., Sept. T., 1906, No. 175, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joseph Celione.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    June 3, 1907 :
   Opinion by

Mr. Justice Elkin,

For reasons stated in the opinion this day filed in Commonwealth v. Anthony Delero, 218 Pa. 487, the judgment in this case is affirmed, and it is directed that the record be remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


author: Justice Potter,

text:
    Boyce v. Union Dime Permanent Loan Association, Appellant.

      Contract — Consideration—Mortgage—Agreement by mortgagee to place insurance — Foreign attachment.

    Where a mortgagor has placed annual insurance on the mortgaged property, and has assigned the policy to the mortgagee, and thereafter the mortgagee for its own advantage and profit agrees to place the insurance itself, and collect the premium afterwards from the mortgagor, and it appears that in placing the insurance in a particular year, the wrong property was described, and the mortgaged property was left uninsured, and a fire resulted, the mortgagee is liable for the loss in assumpsit to the mortgagor, and the latter may maintain a foreign attachment against the mortgagee to recover such loss.

      Appeals — Assignments of error — Evidence—Points.
    An assignment of error to a ruling on evidence which does not set out the testimony referred to, nor give the page of the paper-book, where it is printed in its regular order, violates rule 31, and will not be considered.
    An assignment of error to an answer to a point, which does not set out either the point referred to, or the answer totidem verbis violates rule 29.

      Argued April 17, 1907.
    Appeal, No. 128, Jan. T., 1907, by defendants, from judgment of O. P. Luzerne Co., March T., 1905, No. 98, on verdict for plaintiff in case of Anna Boyce v. The Union Dime Permanent Loan Association.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Foreign attachment to recover for a loss resulting from failure to comply with an agreement to insure real estate. Before Ferris, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,597. Defendant appealed.

      Errors assigned were in the following form :
    1. The court erred in not granting a new trial.
    2. The court erred in refusing to enter judgment for the defendant non obstante veredicto.
    3. The court erred in permitting the testimony of the equity case between Anna Boyce with the Union Dime Permanent Loan Association against the Hamburg Bremen Fire Insurance Company, for the reformation of the policy.
    4. The court erred in not affirming the point of the defendant asking for instructions directing the jury to find under all the evidence for the defendant.

      M. E. MoAniff', for appellant.
    The declaration being for a negligent act, and not alone to maintain the declaration by excluding the negligent act, and bringing a suit upon a tort, it is contended that under the pleadings a judgment should be entered in favor of the defendant non obstante veredicto: Wood v. Virginia Hot Springs Co., 202 Pa. 40; Bldg. &Loan Assn. v. Mayer, 45 Legal Int. 346; Jacoby v. Gogell, 5 S. & R. 450; Lowry v. Fox, 2 Luz. Leg. Obs. 220.
    There was no consideration: King’s Est., 150 Pa. 143; Logan v. Mathews, 6 Pa. 417; Johnston v. Johnston, 1 Grant, 468; Carroll v. Nixon, 4 W. & S. 517; Whitall v. Morse, 5 S. & R. 358; Fisher v. Harrisburg Gas Co., 1 Pearson, 118.

      Thomas F. Farrell, with him S. J. Strauss, for appellee.—
    It matters not whether the appellant’s failure to obtain insurance was due to .negligence or to any other cause; in any event its failure was a breach of the contract for which the action of assumpsit would undoubtedly lie: Cook v. Haggarty, 36 Pa. 67; Reeside v. Reeside, 49 Pa. 322; Drake v. Phila. & Erie R. R. Co., 51 Pa. 240; Zell v. Dunkle, 156 Pa. 353.
    June 4, 1907:
   Opinion by Mr.

Justice Potter,

The plaintiff owned two properties at Sugar Notch, Luzerne county, located on opposite sides of Main street. Both of the properties were mortgaged to the defendant, The Union Dime Permanent Loan Association of Rochester, New York. The buildings on both properties were insured annually, and the policies assigned to the loan association as collateral for its loans. The association usually paid the renewal premiums on the policies, and collected the amount from the plaintiff. In this way a policy for $1,200 was obtained in March, 1900, by defendant from the Hamburg-Bremen Fire Insurance Company, the loan association ordering and paying for the policy, and the plaintiff afterwards paying it the premium. This policy was intended to insure the house situated on the east side of Main street, and it was to be held as collateral security for the mortgage on that property. By mistake it ivas written upon the building on the west side of Main street, the -description applying to plaintiff’s other property which defendant had insured by another policy. Although the association had in its possession the mortgage containing the correct description of the property upon which the house to be insured was located, the descriptions were apparently not compared, and there ivas a failure to notice that the policy purported to insure a different house, located on the opposite side of the street. The plaintiff relied upon the association for obtaining a proper insurance policy, and paid the premiums, upon the assurance of the general manager of the association, that this had been done.

On February 17,1901, the house supposed by plaintiff to be insured was destroyed by fire, the loss being a total one. After the fire it was discovered that the policy did not describe the house which had been burned, and the insurance company refused to pay the loss. The plaintiff brought the present suit in foreign attachment to recover the amount of loss from the association. The court below refused to give binding instructions for the defendant, and the jury found a verdict for the plaintiff in the full amount of her claim. A motion for a new trial and for judgment non obstante veredicto was denied, and judgment entered on the verdict.

The third assignment violates rule 31, in that it does not set out the testimony referred to, nor give the page of the paper-book where it is printed in its regular order. It will not therefore be considered.

The fourth assignment is also defective, and is a violation of rule 29, in that it does not set out either the point referred to, or the answer totidem verbis.

The only question properly raised by the assignments of error, and pressed in the argument, is whether the court below should have entered judgment for the defendant non obstante veredicto. Two reasons are urged why such judgment should have been entered; first, because the claim of the plaintiff was for a tort, and foreign attachment would not lie; and second, that no consideration moved from the plaintiff to the defendant which made the contract for obtaining the insurance binding.

As to the first reason, there was evidence tending to show an express agreement on the part of the loan association to protect the plaintiff by obtaining insurance upon the property. The plaintiff began by obtaining the insurance directly, and having the policies assigned to the defendant. Eor reasons satisfactory to itself, the loan association saw fit to change this method of procedure and take upon itself the duty of obtaining the insurance. No doubt this course was considered by it as advantageous, perhaps as being more systematic, and presumably as effecting some economy, or to enable it to share the commissions. However that may be, there wTas sufficient proof to go to the jury of an express undertaking on the part of the defendant to procure insurance upon plaintiffs property, which was mortgaged to it. In this undertaking) the defendant must be held to the performance of whatever in good faith and fairness it ought to have done for the protection of the plaintiff’s property. Obviously, its duty -was to see that the insurance was validly placed, and an important matter was to see that a correct description of the property insured was properly inserted in the policy. Failure to do this was plain neglect of duty. If it failed in the performance of this duty, an action of assumpsit would lie. This principle was clearly laid down in Reeside’s Exr. v. Reeside, 49 Pa. 322, and reaffirmed in Zell v. Dunkle, 156 Pa. 353. We have no doubt as to the right of the plaintiff in this case to waive the tort, and bring an action of assumpsit. See Whitney v. Haskell, 216 Pa. 622, and cases there cited. Nor do we see any merit in the contention that the agreement of the appellant to attend to the placing of the insurance was ivithout consideration. For its own benefit, and presumably for its own profit, it took the matter out of the hands of the plaintiff, and assumed to procure the insurance. The consideration moving to appellant was sufficient. Authority is ample for holding the defendant responsible. Thus in Soule v. Union Bank, 45 Barb. (N. Y.) 111, it was decided that where a mortgagee charges the mortgagor with the premium for an insurance on his life for three years, and includes the amount in the mortgage as a part of the principal, he is bound to keep the policies alive; and if, in consequence of his neglect to pay the premiums, the policies become extinguished, he is himself liable as an insurer. The court said (p. 118): If it should be said that the bank (mortgagee) could not be insurer for want of power, the answer is that it is immaterial whether the bank is charged as an insurer or as guilty of negligence in not making the insurance.” And in Manny v. Dunlap (U. S. C. C. Dist. of Iowa), 16 Fed. Cases, 658, it was held that if an agent has undertaken to procure insurance, but has done it so negligently that a loss which ■ occurs is not covered by the policy, he is liable to his principal. Miller, circuit judge, said (p. 659): “ The duties of an agent to procure insurance have been often considered by the courts and are rigidly enforced. It has been decided in general terms that when an agent has undertaken, or it has become his duty, to insure, and without good reason he has neglected to do so, he is liable for all loss -which may occur, that would have been covered by the policy. . . . Again, if the agent has undertaken to effect insurance, and has done it in a manner so negligent and unskillful that a loss which occurs is not covered by the policy, the agent is liable therefor.”

And in the case of Tower v. Grocers’ Supply & Storage Company, 159 Pa. 106, it was held that where a person engaged in the storage business makes it a part of such business to effect insurance in companies when requested by customers to do so and protects himself for his advances and charges by holding the goods, the agreement to insure is in the direct line of his business and not a contract of insurance requiring certain essential elements to constitute it. It is not a voluntary and gratuitous act, but an undertaking in connection with the bailment.”

So in the present case, the defendant, for its own advantage, and in the line of its business, undertook, and made it a part of its business, to place the insurance upon the properties upon which it had made loans. Its undertaking was not voluntary and gratuitous, but was connected with the business of loaning money.

The judgment is affirmed.


text:
    Stegmaier, Appellant, v. Goeringer.

      Municipalities — Cities of the third class — Celebration of public event— Appropriation of moneys — Act of May 23, 1889, art. V; sec. 2, P. L. 277.
    While the councils of a city of the third class may vote money for the public celebration of an event of public interest connected with the history of the city, and may even direct that such money shall be paid to the treasurer of a committee of private citizens having the celebration in charge, such treasurer cannot demand that the city controller shall countersign warrants- for such appropriation, unless it appears that he had presented proper bills or vouchers showing for what purpose and in what manner the moneys had been expended.
    The remedy by mandamus is a strictly legal one, and the relator must establish a specific legal right as well as the want of a specific remedy in order to sustain such a proceeding.
    When a private relator seeks to compel by mandamus a public official to perform an alleged duty, the burden is on him to show that he has performed every prerequisite condition necessary to compel such action and that it has been refused by the public official. This is true whether the duty to be performed is ministerial or discretionary, for even if the duty is ministerial the private relator must show that he has placed himself in a position to legally demand the performance of the duty, and after making demand, it was refused, before he is in a position to ask the intervention of the court to compel the performance of the alleged duty.
    Argued. April 17, 1907.
    Appeal, No. 159, Jan. T., 1907, by plaintiff, from order of O. P. Luzerne Co., Feb. T., 1907, No. 34, refusing writ of mandamus in case of George J. Stegmaier, Treasurer, etc., v. Fred Goeringer, Controller, etc.
    Before Mitchell, O. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for mandamus.
    The petition was as follows:
    1. By lawful ordinance, duly passed by the select council of the city of Wilkes-Barre, in said county, on March 13,1906, and by the common council on March 21, 1906, and duly approved by the mayor of that city on March 24, 1906, the sum of $5,000 was lawfully appropriated for a certain public celebration, held on May 10, 11 and 12, 1906, designated a “ Centennial Jubilee,” and designed to commemorate events of great public interest connected with the history of Wilkes-Barre, in a manner and with the intent to promote, maintain and advance the material welfare of the city and its inhabitants, and its trade, commerce and manufactures.
    2. By lawful concurrent resolution passed by the said councils on April 24, 1906, and approved by the. mayor on April 25, 1906, it was resolved, pursuant to said ordinance, that a warrant in the sum of $5,000, payable out of the item of “ Centennial Jubilee ” in the miscellaneous appropriation, be drawn in favor of George J. Stegmaier, treasurer of the general centennial jubilee committee, the petitioner, plaintiff, to be expended for the purpose of decorations under the direction of the jubilee decorating committee, said decorations being of a public character and necessary .for the public celebration aforesaid.
    3. Thereupon, to wit: on April 25, 1906, a city order for the payment of said sum to the petitioner, plaintiff, duly drawn upon the city treasurer, was presented to Fred Goeringer, the defendant, then and now the controller of said city, for countersignature, in accordance with law.
    4. Thereupon, it became and was the ministerial duty of the defendant to countersign the said order as a legal prerequisite to payment thereof by the treasurer.
    5. Nevertheless, the defendant unlawfully refused, and still refuses, to countersign the said order, so that payment of the same cannot be made, and the intention of councils in respect to the said appropriation is wholly frustrated.
    6. Upon the faith of said appropriation the general centennial jubilee committee, composed of sundry citizens, whereof the the petitioner, plaintiff, is treasurer, expended for the purpose 'of decorations, as directed in the said resolution, a sum exceeding $5,000.
    This petition is filed as well in behalf and at instance of said committee beneficially interested to the extent of $5,000, as of the petitioner, plaintiff, himself, and individuals composing said committee beneficially interested to the’extent of their respective personal contributions to the fund expended as aforesaid.
    The petition prayed for a peremptory mandamus.
    The respondent filed an answer denying the right of the relator to relief, and the relator thereupon demurred to the answer.
    The court overruled the demurrer.

      Error assigned was in overruling the demurrer.

      Henry A. Fuller, for appellant,
    cited: Bergner v. Harrisburg, 1 Pearson, 291; Tatham v. Philadelphia, 2 W. N. C. 564; Tagg v. Philadelphia, 18 W. N. C. 79; Com. v. Gingrich, 21 Pa. Superior Ct. 286.

      James L. Lenahan, with him G. F. McHugh, city solicitor, for appellee.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

The custom, of commemorating important historical, military and civil events is as old as mankind, and at common law the right of municipalities to make appropriations out of the public funds for the proper observance of such occasions was recognized for centuries. There is no reason why a municipality, unless restricted by statute, should not be permitted to make reasonable appropriations in order to fitly commemórate public events in which all of the citizens thereof are, or should be, interested. The general welfare clause of the Act of May 23, 1889, P. L. 277, relating to cities of the third class, instead of limiting the inherent powers of municipalities in this respect, is broad enough to confer the express power to make an appropriation for the commemoration of events of great public interest in such a manner as to promote the general welfare of the city and advance its trade, commerce and manufactures. It must not be understood, however, that because in a proper case, and for a proper purpose, a municipality has the power to make such an appropriation it can do so without any limitations or restrictions. The general rule that a public corporation cannot make a contract to provide an entertainment for its citizens or guests is freely conceded ; also that it is not within the power of cities of the third class to make appropriations for expenses incurred in providing refreshments, entertainments and dinners for delegates to a convention; or for entertaining guests at a supper or ball; or, indeed, for the purpose of extending hospitality or furnishing social pleasures either to citizens or invited guests. While these limitations have been very properly imposed upon municipalities, it does not follow that they do not have the power to make an appropriation to fittingly decorate and otherwise ornament the streets and public buildings, and to provide suitable conveniences for the accommodation of the public in the enjoyment of the ceremonies incident to the occasion. Whether this be considered an inherent common-law power of every municipality, or whether it comes within the purview of the general welfare clause of the act of 1889, the result is the same in so far as cities of the third class are concerned. In the exercise of this power the rule should be observed that moneys appropriated for these purposes should be expended under the supervision and direction of the proper officer or department of the city government, and that bills should be presented, vouchers filed and the accounts audited in the same manner as is provided by law for the expenditure of other public funds. It is true that in Commonwealth v. Pittsburg, 183 Pa. 202, it was held that the city could appropriate money to a committee of private citizens to be used for a purpose intended to promote the general welfare of the people. Under the authority of that case it cannot be doubted that a city may, under certain circumstances, and for proper purposes, make an appropriation to a committee of private citizens acting for the general welfare of the inhabitants of the municipality. This is an extreme exercise of municipal power which should be carefully guarded, and when exercised the committee of private citizens should present bills and vouchers showing for what purpose and how the moneys were expended, and these accounts should be examined and audited before warrants are drawn for their payment. The safer rule is to require the moneys thus appropriated to be expended by the proper official or officials of the city government, and the bills and vouchers should be presented for payment in the regular and ordinary way. While we recognize the power of councils of the city of Wilkes-Barre to make an appropriation for the general purpose indicated in the ordinance, the contention of appellant cannot prevail in this case for the reasons hereinafter stated.

The relator seeks to compel'by mandamus the appellee to countersign a warrant drawn upon the city treasurer in the lump sum of $5,000. The remedy by mandamus is a strictly legal one, and the relator must establish a specific legal right as well as the want of a specific remedy in order to sustain such a proceeding: James v. Bucks County, 13 Pa. 72; Commonwealth v. Henry, 49 Pa. 530; Commonwealth v. Thomas, 163 Pa. 446; Commonwealth v. James, 214 Pa. 319. When a private relator seeks to compel by mandamus a public official to perform an alleged duty, the burden is on him to show that he has performed every prerequisite condition necessary to compel such action, and that it has been refused by the public official. This is true whether the duty to be performed is ministerial or discretionary, for even if the duty is ministerial the private relator must show that he has placed himself in a position to legally demand the performance of the duty, and after making demand it was refused, before he is in a position to ask the intervention of the court to compel the performance of the alleged duty.

Let us apply these principles to the facts of the present case. If it be conceded that the city councils had the power to make an appropriation for the general purpose stated, the moneys so appropriated must be expended and accounted for according to law. It will not do to say that city councils have the power to make a general appropriation of $5,000 to be advanced to a committee of private citizens before any expenses are incurred or bills paid, and that there need be no accounting to the city controller, or any other public official for the moneys so appropriated. "When public moneys are appropriated for this purpose, as well as for all other purposes, bills should be presented and vouchers filed, in order that the city controller may pass upon the rectitude of the claims thus presented before he countersigns the warrant upon the city treasurer: Runkle v. Commonwealth, 97 Pa. 328. And this is true even in a case where the right of a city to appropriate money to a committee of private citizens has been recognized : Commonwealth v. Pittsburg, supra. The relator in his petition averred in substance that a “ lawful ordinance ” had been passed by select and common councils and approved by the mayor March 24, 1906, making an appropriation of $5,000 for a certain public celebration to be held on the tenth, eleventh and twelfth days of May of that year ; that a “ lawful concurrent resolution ” was passed by councils and approved by the mayor on April 25, 1906, authorizing a warrant in the sum of $5,000 tobe drawn in favor of the appellant, treasurer of the general centennial jubilee committee, to be expended for decorations; and on the day the concurrent resolution was approved by the mayor, the relator demanded of the city controller that he countersign a warrant on the city treasurer for the whole amount so appropriated. It is apparent that at the time the demand was made upon the city controller no moneys had been expended for the purpose designated, and it is not averred that bills or vouchers had been presented to the city controller in order that he might pass judgment upon the expenditures before countersigning the warrant. It does not appear in the pleadings that either at that time, or any subsequent time, bills and vouchers were presented to the city controller in order to inform him for what purpose and in what manner the moneys were expended, so that he might act intelligently in countersigning the warrant. Clearly, therefore, the relator has not shown such a specific legal right, nor has he performed all the prerequisite conditions necessary to demand of the city controller the countersigning of the warrant so that a proceeding by mandamus may be maintained by him upon the refusal of the city controller so to do. The respondent in his answer denies that the “ ordinance was lawful; ” or that the “ concurrent resolution was lawful; ” or that the order drawn upon the city treasurer was lawful; or that it was his duty to countersign the warrant. The pleadings are argumentative, and in the averment of facts state conclusions of law drawn from facts not set out in the record, and which cannot be properly reviewed on this appeal. The record does not contain a copy of the ordinance, or of the concurrent resolution, or of the bills and vouchers, and is silent on the question whether bills and vouchers had been presented for approval by the controller. It seems clear, therefore, that as the record stands the relator is not entitled to a peremptory writ of mandamus.

Assignments of error overruled and decree affirmed.


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    Agnew v. Albert Lewis Lumber & Manufacturing Company, Appellant.

      Land law — Boundaries—Surveys—Conflicting evidence — ■Question for jury — Trespass—Damages.
    In an action of trespass for cutting timber where the dispute relates to the boundaries of land, and the oral testimony of surveyors called by both sides is conflicting and uncertain, and the case-depends upon such testimony, the court commits no error in submitting the case to the jury.
    Argued April 17, 1907.
    Appeal, No. 342, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., May T., 1903, No. 353, on verdict for plaintiff in case of Harper ~W. Agnew v. Albert Lewis Lumber & Manufacturing Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for cutting timber. Before Terry, P. J., specially presiding.

      The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $3,500. Defendant appealed.

      Error assigned, was in overruling motion for judgment for defendant non obstante veredicto.

      George R. Bedford, and Andrew II. MeOUntoeTc, with them John T. Lenahan, for appellant.

      Q. A. Gates, with him James L. Lenahan, for appellee.
    June 4, 1907 :
   Opinion by

Mr. Justice Potter,

This was an action of trespass to recover treble damages under the provisions of the Act of March 29, 1824, P. L. 152, for the cutting and conversion of timber by defendant upon land alleged by plaintiff to belong to him. The cutting and conversion of the timber was admitted, but defendant claimed that the land upon which it grew was its property, and not the property of plaintiff. The question tried, therefore, was whether this land, between twenty-three and twenty-four acres in extent, belonged to plaintiff or not.

The evidence showed that on February 26, 1793, warrants were issued by the commonwealth to Isaac Bump and eighteen others for as many adjoining tracts of land in Luzerne county, of 400 acres each, and that in 1795 these were surveyed as a block. One of these warrants was issued to George Bump, and the eastern half of George Bump’s tract at the time of the alleged trespass had become vested in plaintiff. The land immediately adjoining this tract upon the north, which was also included in the original block surveyed, was owned at that time by defendant. The question in dispute was the location of the George Bump tract, plaintiff contending that it ran forty-eight and eight-tenths perches further north than was admitted by defendant.

In support of his contention plaintiff called three surveyors, Henry Colt who made a survey of the George Bump tract in 1857; S. J. Pealer who surveyed it in 1893 and 1895 and again in 1902, 1903, 1904 and 1905, and James Crockett who assisted Pealer in the survey in 1902. These surveyors, beginning with, marks on the ground at the south line of the tract, located the north line in accordance with plaintiff’s contention.

Defendant called as witnesses several surveyors who, starting from marks in the northwest lines of the original block survey, located the southern boundary of the tract of defendant, and adjacent tracts, at a distance of forty-eight and eight-tenths perches south of the line claimed by plaintiff to be his northern boundary. The earliest of these surveys was in 1871. There was much uncertainty as to the marks testified to on both sides, because a survey of land adjoining this block had been made in 1793, and it was sometimes difficult to distinguish between the work done at these respective dates.

Plaintiff also claimed title to the land in dispute by adverse possession, but the court below held that there was not sufficient evidence to support this claim, and so instructed the jury.

•The court declined to give binding instructions for either plaintiff or defendant, and submitted the question of the correct location of the boundary line in dispute to the jury, who found for plaintiff. Defendant moved for judgment in its favor non obstante veredicto, but the court overruled the motion and directed judgment to be entered on the verdict. From this judgment defendant appealed.

The only question raised by the assignments of error and argued in behalf of appellant, is whether the court erred in refusing to enter judgment non obstante veredicto. A careful examination of the evidence has satisfied us that the trial judge pursued the only proper course. The evidence of neither party was conclusive, but there was sufficient to support a verdict for the plaintiff. The testimony of the surveyors as to the. true location of the boundary line between the lands of plaintiff and defendant is conflicting, and the position of the line could not be,settled except by the verdict of a jury. The disputed question was not one of law for the court, but one of fact, which the jury only could determine. To take it from the jury would be for the court to assume the decision of an issue of fact, where the evidence was conflicting, and where both sides rested their claims upon oral testimony.

As the trial judge says in his opinion, “ it was claimed by the defendant that the location of the George Bump tract must be ascertained by the rules applicable to a block survey, and evidence was introduced by the defendant for the purpose of showing such location according to that system. It having been made to appear that said tract was one of a block of surveys, the jury was instructed concerning the method of location by such rules. It was, however, claimed by the plaintiff, that the George JBump tract could be located by the individual system; and he offered evidence tending to show original marks in the lines, or one line, thereof, peculiar to that tract. Accordingly, instruction as to the rules governing in such case was given the jury. Thus both theories were presented in the charge of the court.” As Justice Gordon said in Jackson v. Lambert, 121 Pa. 182, “ The question regards location, which is always one of fact, hence, one about which a surveyor who is properly instructed concerning the facts may always give his opinion.” It was held in Brown v. Willey, 42 Pa. 205, that where a line or boundary is disputed, it is always a question of fact for a jury.

In Wilson v. Marvin, 172 Pa. 30, in which the boundary of a warrant was disputed, and the plaintiff fixed the boundary by measurement from a well-established corner of a neighboring warrant, while defendant located it by marks on the ground, and by the north line of another warrant adjoining on the south, the court.below did what appellant contends it should have done here, disposed of that feature of the case as matter of law. In reversing the judgment, Justice Williams, speaking for this court, said (p. 38): “ It may be that the learned judge reached a correct conclusion upon the question of fact, and one that would have been reached by the jury if the question had been submitted to them. On the other hand, the jury may have found in accordance with the contention of the defendants. There was evidence bearing upon the question which it was'their province to weigh, and the conclusion from which it was their appropriate function to draw, and the evidence should have gone to them. This case was otherwise well tried, but the learned judge erred in giving a binding instruction to the jury to find in favor of the plaintiffs as to that part of the tract involved in the controversy over the location of the south line.”

In the present case, both parties rely upon oral, testimony to establish the various marks upon the ground, and the details of the various surveys made, and the courses which were run by the different surveyors. Both sides depend also upon the correctness of the calculations and measurements of the surveyors. Under these circumstances it would have been manifest error to have taken the case from the jury. The case was tried with great care and precision, and the judgment is affirmed.


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    Ashman's Estate
    (No. 1).

      Practice, O. C. — Accounts—Auditor—Distribution.
    An auditor who had been appointed to pass upon exceptions filed to a particular account of a trustee, and to distribute such balance as he would find to be, among those entitled to receive it, has no power to charge the accountant with certain balances which it was alleged remained unpaid to some of the distributees on a former account. In such a case the auditor must confine himself strictly to the account which he was appointed to audit.

      Trusts and trustees — Commissions—Compensation.
    Where a trustee has for a period of four years given constant and careful attention to the trust estate, and his management has been attended with success and with profitable results to the beneficiaries, the appellate court will not reverse the orphans’ court in allowing the trustee a compensation somewhat in excess of the per centum rate usually allowed in such cases.
    Argued April 22, 1907.
    Appeal, No. 259, Jan. T., 1906, by Sigel Ashman, from decree of O. O. Huntingdon Co., overruling exceptions to auditor’s report in Estate of Mary Jane Ash-man.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of W. M. Henderson, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Errors assigned were in overruling exceptions to auditor’s report.

      L. EE. Beers and H. JEL. Waite, for appellants.
    This court has decided in many cases that partial accounts are final only as to what they contain: Shindel’s App., 57 Pa. 43; McLellan’s App., 76 Pa. 231; Shank v. Simpson, 114 Pa. 208; Leslie’s App., 63 Pa. 355.

      John D. Dorris, for appellee.
    The confirmation of a merely partial account is a definite decree, and is conclusive as to matters embraced in it: Appeals of Fross and Loomis, 105 Pa. 258, 268; Lehr’s App., 98 Pa. 25; Moore’s App., 10 Pa. 435; Holloway’s Est., 11 Pa. C. C. Rep. 90.
    June 3, 1907:
   Opinion bt

Mr. Justice Stewart,

Upon the resignation of the executors and trustees appointed by the will of Mary Jane Ashman, deceased, the orphans’ court of Huntingdon county in 1881 appointed Isaac Taylor, the appellee, successor in the trust. The trust property committed to his care and management consisted principally of coal lands in Clearfield county. These lands were leased to operators upon certain royalties, and yielded to the estate a very considerable income. The auditor filed and settled accounts of his trust regularly each alternate year, six in all, not including the last which was filed in 1904, and which gives rise to the present controversy. Each of these several accounts was regularly confirmed by the court, and each ivas followed by an auditor’s report, also confirmed, making distribution of the balance thereon. To the seventh and last account filed January 2, 1904, exceptions were filed, and an auditor was appointed to pass upon these and make distribution of the fund. The principal effort before the auditor in support of the exceptions, was to charge the accountant with certain balances which it was alleged remained unpaid to some of the distributees on former accounts. The auditor, under instructions from the court, determined adversely to this contention, and confined the distribution to the balance ascertained on the last account. In this there was no error. Whether the trustee had or had not paid to the several distributees the entire amounts that had previously been awarded them, was a matter with which the auditor had no concern. He was appointed to pass upon the exceptions filed to this particular account, and distribute the balance as he would find it to be, to and among those entitled. Any exception based on the omission from the account of the several sums paid to distributees would necessarily have to be dismissed. Distribution has no proper place in such an account. In Ake’s Appeal, 21 Pa. 320, it is said, “ It is the duty of an executor or administrator to set forth the true condition of the trust, without any reference to its ultimate distribution. How creditors, legatees, or next of kin may be affected by it, is not a consideration which ought to alter its shape. Its object is to ascertain how much the accountants have received, and how much remains after payment of debts an d expenses. Payments made to, or releases given by distribution, can have no place in it.” The trustee in the present case in confining the account to receipts and expenses incident to the trust, was following the correct rule of accounting, the one which this court has by repeated decisions declared to be the only safe one.

The only fund for distribution, before the auditor was the balance, as he might determine it to be, on the last account. It was not claimed that accountant was not there debited with all that he had received since the filing of his prior account, or that he had credited himself with improper expenditure; the correctness of the account in these particulars was conceded. In determining the balance for distribution, what had been paid to the-distributees was not to be considered. It was no part of the auditor’s business to adjust the account between the trustees and the several distributees with respect to any other fund than that before him. The decrees confirming the several prior accounts determined the liability of the accountant to the estate, and the several reports of auditor, also confirmed, determined the liability to each distributee. If these sums, or any part of them, have not been paid, the decrees afford nbt only an easy and convenient method for enforcing payment, but the only one. It was not for the auditor to inquire whether the liability thereunder had been discharged.

The accountant claimed and was allowed as compensation for his management of the trust during the four years covered by the account, the sum of $4,000. This was somewhat more than the per centum rate, usually allowed in such cases, but under the circumstances, as we understand them, we cannot say that it is excessive. The auditor found the management of the estate by the trustee to have been “ attended with success and with profitable results to the beneficiaries.” It covered a period of four years, and while the duties of the trust Avere perhaps not exacting, they were of a character that called for constant and careful attention. There is much in the case to incline to liberality, and we are persuaded that in being liberal towards the accountant, the court below Avas not unjust to any other interest.

The other matters complained of do not call for separate consideration here, as they are largely, if not entirely, resolved against the appellant’s contention, by our conclusion with respect to the auditor’s poAver to take cognizance of matters outside the account referred. The questions, in the main, relate to alleged indebtedness by the trustee of principal and interest on former accounts to the several distributees, and the admission and rejection of offers in connection thereAvith. We have given careful consideration to all the exceptions, but find the record disclosing no substantial error.

The appeal is dismissed at the costs of the appellant and the decree affirmed.


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    Ashman’s Estate
    (No. 2).
    Argued April 22, 1907.
    Appeals, No. 260, Jan. T., 1906,
    by George H. Ashman, No. 261, Jan. T., 1906, by Cornelius I. Ashman, No. 262, Jan. T., 1906, by Lillian Bernhardt, and No. 263, Jan. T., 1906, by II. H. Ashman, from decree of O. C. Huntingdon Co., overruling exceptions to auditor’s report in Estate of Mary Jane Ashman.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    June 3, 1907:
   Opinion by

Mr. Justice Stewart,

These are separate appeals by several distributees involving the same questions as those considered in the appeal of Sigel Ashman in the same estate, 218 Pa. 509, just decided. For the reasons set out in the opinion delivered in that case, these appeals are dismissed at the cost of the respective appellants and in each case the decree is affirmed.


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    Ashman’s Estate
    (No. 3).

      Practice, O. C. — Filing transcript in the common pleas — Jurisdiction of orphans’ court.

    Where a party has filed with the prothonotary of the common pleas a certified transcript of balance due from an accountant in the orphans’ court, the orphans’ court is without jurisdiction to strike off the transcript from the records of the court of common pleas. The orphans’ court may modify its own decrees determining the balance due from the accountant and any reduction in amount will be a limitation upon the right to recover under the transcript; but so far as the transcript is made a record of the common pleas, it is exclusively for that court to make any order affecting it.
    Argued April 23, 1907.
    Appeal, No. 15, Jan. T., 1907, by ■George H. Ashman, from order of O. C. Huntingdon Co., striking off transcript in Estate of Mary Jane Ashman.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Be-versed.
    Buie to strike off transcript.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      L. H. Beers, with him II. R. Waite, for appellants.

      John D. Dorris, for appellee.
    June 3, 1907:
   Opinion by

Mr. Justice Stewart,

The appellant was one of five distributees to whom was awarded by report of auditor, confirmed by the orphans’ court of Huntingdon county, June 30, 1906, the balance ascertained to be due on the seventh account of Isaac Taylor, trustee of the estate of Mary Jane Ashman, deceased. On July 19, following, the appellant procured a certified transcript of the amount awarded him as one of the distributees, $11,156.08, and caused the same to be filed and docketed by the prothonotary of the court of common pleas of said county. The day following, July 20, 1906, he filed his appeal from the decree of the court confirming the auditor’s report. On December 5,1906, the accountant presented his petition to the orphans’ court setting forth that the transcript filed in the common pleas did not represent the true balance due appellant; that at the hearing before the auditor accountant had produced and left with the auditor receipts and vouchers for payments made to the appellant which, if credited, would reduce the actual amount due and owing to the sum of $125.12; that he was prevented from paying this balance by an appeal which had been taken from the decree of confirmation. The same day the court granted a rule upon the distributee to show cause why the transcript would not be revoked, and the entries made in the common pleas stricken out. The answer to the rule denied the facts set out in the petition, and the jurisdiction of the court as well. Testimony was taken and, after argument, the court made the rule absolute. The present appeal is from this order.

Whether the certified transcript in this case filed with the prothonotary accords with the requirements of the statute, is a matter about which we heed not inquire. It is enough to know that when the orphans’ court undertook by its order to strike it from the records of the common pleas, it was attempting to exercise authority where it had none. Whether sufficient or insufficient the transcript filed was beyond the reach of the orphans’ court; that court did not send it into the common pleas, nor was it there filed with its leave. Any party in interest has a statutory right to file with the prothonotary a certified transcript of balance due from an accountant in the orphans’ court; and while by the mere act of filing the transcript does not become a judgment of the court, it does become a lien upon the accountant’s real estate, and the basis for proceedings in the common pleas exclusively. The orphans’ court may modify its own decrees determining the balance due from the accountant, and any reduction in amount will be a limitation upon the right to recover under the transcript; but so far as the transcript is made a record of the common pleas, it is exclusively for that court to make any order affecting it. The orphans’ court may under the statute certify to the common pleas that the whole balance has been paid by the accountant, and such certificate will have the effect to satisfy the lien; but it cannot interfere with the claimant’s right to proceed by scire facias to enforce his lien to whatever amount he is entitled to recover. Here it was not alleged that the whole balance had been paid; and for whatever balance remained, however small, the lien of the transcript remained in full force. The order of the orphans’ court revoking the transcript in this case, and striking the entries made therefrom from the records of the court of common pleas, was unavailing and nugatory; the error in making it calls for reversal.

The appeal is sustained, and the order of the court is reversed.


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    Ashman’s Estate
    (No. 4).
    Argued April 23, 1907.
    Appeal, No. 16, Jan. T., 1907, by George H. Ashman, from order of O. G. Huntingdon Go., striking off transcript in Estate of Mary Jane Ashman.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    June 3, 1907:
   Opinion by

Mr. Justice Stewart,

This is an appeal by another distributee from the order of the orphans’ court that was considered in the appeal by George H. Ashman, just decided, 218 Pa. 513. The question here is the same that was raised there. The result must be the same.

The order of the orphans’ court is reversed.