text:
    Buckman v. Philadelphia & Reading Railway Company, Appellant.

      Appeals — Practice—Supreme Court — Paper-books—Rule 26 — Statement of questions involved.

    1. Rule 26 as to space allowed in paper-books on appeals for statement of the questions involved is mandatory and counsel for an appellant must remember that they assume great risk for their client in disregarding it themselves or in permitting printers to do so for them.

      Negligence — Railroads—Stop, look and listen — Customary place to stop — Evidence.
    2. In an action against a railroad company to recover damages for the death of a person killed at a railroad crossing it is competent for the plaintiff to show that the place where deceased stopped before entering upon the track was the usual and customary place of stopping to look and listen for trains.

      Negligence — Railroads—Public crossing — Signals—Weight of evidence — Negative testimony.

    3. In an action against a railroad company to recover damages for the death of a person killed by a train at a public crossing where three witnesses for the plaintiff who were on the scene, two of whom were particularly interested in the train, testify positively that the first warning given of the train’s approach was the blast of the whistle an instant before the collision, the question whether such testimony is overcome by the positive testimony of four witnesses that the proper signal had been given, is solely for the jury.

      Negligence — Railroads—Public crossing — Stop, look and listen.

    4. In an action against a railroad company to recover damages for the death of a person killed by a train at a railroad crossing the question of the contributory negligence of the deceased is for the jury where several witnesses testify that deceased stopped about 140 feet from the crossing at a point where persons driving teams were accustomed to stop, look and listen for trains, at which point there was a view in the direction from which the train came of from 300 to 500 feet, the view there being obstructed by buildings and trees until a point was reached 16 feet from the first rail of the track on which the train came, there being evidence that within the 16 feet space a clear view could be had for only 125 feet and then only when the heads of the horses were over the first rail, although the great preponderance of testimony is to the effect that at any point within 16 feet of the track there was a clear view of an approaching train for 2,290 feet.

      Negligence — Damages—Naming capacity

    5. In an action by a wife to recover damages for the death of her husband, it is competent for the plaintiff to' show the amount of farming and trucking which had been done by him, as bearing upon the question of his earning capacity.
    Argued March 20, 1911.
    Appeal, No. 372, Jan. T., 1910, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 3,362, on verdict for plaintiff in case of Ella P. Buckman v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death. Before McMichael, P. J.
    The facts appear in the opinion of the Supreme Court.
    The appellant’s statement of the question involved took up about one page and a half, but was printed in large type and double spaced. It was as follows:
    IV. STATEMENT OF QUESTIONS INVOLVED.
    I. Whether the evidence as to the proper and customary place for the driver of a wagon to stop before crossing a railroad was admissible in this case?
    II. Whether the testimony of the wife to prove the average proceeds from the loads of truck sold by her husband-is admissible as evidence of the earning capacity of a truck farmer who leased a farm which he worked by his own services, the services of his wife, two sons and hired employees, in the course of which he also employed horses, wagons and farm implements?
    III. Whether the charge of the trial Judge upon the view that could be had at a grade crossing was adequate?
    IV. Whether the trial judge erred in charging the jury upon the duty of care to be exercised by the driver of a wagon at a grade crossing of a railroad?
    V. Whether the evidence of the plaintiff to prove negligence was sufficient to carry the case to the jury?
    VI. Whether the deceased was guilty of contributory negligence in failing to look and listen for a train which struck his horses the instant they entered upon the tracks?
    Verdict for plaintiff for $18,000 of which all above $15,000 was later remitted, and judgment was entered for plaintiff for $15,000. Defendant appealed.

      Errors assigned were various rulings on evidence, and portions of the charge and refusal to enter judgment for defendant n. o. v.

      Wm. Clarke Mason, for appellant.
    — The learned trial judge erred in permitting the plaintiff to offer evidence to show the usual and customary stopping place for drivers approaching the grade crossing where the accident happened, until it was proved that the point in question was the best place and practically the only place where a clear view of an approaching train could be had from a point of safety: Urias v. R. R. Co., 152 Pa. 326; Blotz v. R. R. Co., 212 Pa. 154.

      Plaintiff’s testimony as to the earnings of her husband was improper: Burns v. R. R. Co., 219 Pa. 225; Buckman v. Ry. Co., 227 Pa. 277; McCracken v. Traction Co., 201 Pa. 384; Hewlitt v. R. R. Co., 63 N. Y. App, Div. 423 (71 N. Y. Supp. 531).

      A. S. L. Shields, for appellee.
    — Evidence of defendant’s negligence was adduced: Rottmund v. R. R. Co., 225 Pa. 410; Clarke Co. v. R. R. Co., 27 Pa. Superior Ct. 251; Schwarz v. R. R. Co., 218 Pa. 187; Winterbottom v. R. R. Co., 217 Pa. 574.
    The evidence concerning the usual and proper place for stopping was properly admitted: Cookson v. Ry. Co., 179 Pa. 184; Whitman v. R. R. Co., 156 Pa. 175.
    Decedent was not guilty of contributory negligence: Tressler v. R. R. Co., 40 Pa. Superior Ct. 224; Schwoerer v. R. R. Co., 225 Pa. 28; Cookson v. Ry. Co., 179 Pa. 184; Whitman v. R. R. Co., 156 Pa. 175; Beach v. R. R. Co., 212 Pa. 567; Messinger v. Penna. R. R. Co., 215 Pa. 497; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Hanna v. Ry. Co., 213 Pa. 157; Elston v. R. R. Co., 196 Pa. 595; Calhoun v. R. R. Co., 223 Pa. 298.
    The evidence of the earning power of decedent was sufficient: Buckman v. Ry. Co., 227 Pa. 277; Simpson v. R. R. Co., 210 Pa. 101; Hanover R. R. Co. v. Coyle, 55 Pa. 396; Penna. R. R. Co. v. Dale, 76 Pa. 47; Wallace v. Penna. R. R. Co., 195 Pa. 127.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

In exceeding the space allowed by rule 26 for the statement of the question or questions involved, counsel for appellant has very narrowly escaped the suppression of his paper-book and the nonprossing of his appeal, and he makes this escape only because, in the judgment of a majority of the court, the statement would not have exceeded half a page if type of ordinary size had been used and the spacing had not been so wide. The rule as to .space is mandatory, and counsel for an appellant must remember that they assume great risk for their client in disregarding it themselves or in permitting printers to do so for them.

At about six o’clock on the evening of October 24, 1903, the husband of the plaintiff was instantly killed by the collision of a train of the defendant company with the team which he was driving. He was seated in a covered market wagon, drawn by two horses, and the instant they got upon the first track of the company over the York road, at Willow Grove station, the collision occurred. The first contention of the appellant to be noticed is that there was no proof of its negligence. What is charged against it is that it failed to give notice, by bell or whistle, of the approach of its train to the crossing. Three witnesses called by the plaintiff testified that no warning had been given of its approach. Their testimony was not merely that they had not heard the blast of a whistle or the ringing of a bell; it was that no such warning had been given. The first of these was waiting at the station to take a train; the second was a passenger on the colliding train, looking out of a window for friends at the station; and the third was standing at the station, looking for the arrival of the train, and all three testified positively that the first warning given of the train’s approach was the blast of the whistle an instant before the team was struck. Two of them had their attention upon the coming train, and the testimony of all three was not merely negative, amounting to a mere scintilla upon the question of the defendant’s negligence. On the contrary, it was positive testimony that what ought to have occurred had not occurred, and was negative only in the sense that all testimony as to the nonexistence of a fact may be said to be negative. In character it may have been negative; in effect it was positive, and was, therefore, sufficient for a finding by the jury that the defendant had negligently and carelessly omitted to perform its duty of giving proper notice of the approach of its train to the crossing: Winter-bottom v. P., B. & W. R. R. Co., 217 Pa. 574; Schwarz v. Delaware, Lackawanna & Western R. R. Co., 218 Pa. 187; Rottmund v. Pennsylvania R. R. Co., 225 Pa. 410. Whether the testimony of these witnesses was overcome by the positive testimony of four witnesses that the proper signal had been given, was a question solely for the jury, and it is not for us to interfere with their finding, even if we, as jurors, might have found differently.

The appellee did not rely upon the presumption that her husband had stopped, looked and listened for an approaching train, but undertook to prove affirmatively that he had performed that duty. Several witnesses testified that he stopped about 140 feet east of the crossing, at a point where persons driving teams were accustomed to stop, look and listen for trains coming from Philadelphia. At that point there was a view in the direction from which the train was coming of from 300 to 500 feet, but this did not continue down to the railroad. A house, shed, barber shop, fence and trees more or less obstructed the view until a point was reached 16 feet, by actual measurement, from the first rail of the track on which the train came. The great preponderance of the testimony shows that at any point within 16 feet of the railroad track there was a clear view of an approaching train of 2,290 feet. After the deceased started from the point at which he stopped — about 140 feet from the track — he did not stop again, but, seated back in his wagon, drove on until his team was struck, and the main contention of the appellant is that his death ought, under the circumstances, to be charged to his contributory negligence, because if he had stopped and looked within the space of 16 feet east of the track, he would have seen.the coming of the train. On the oral argument we were impressed by this, but our examination of all the testimony in the case has led to the conclusion that the contributory negligence of the deceased was for the jury. He did stop to look and listen for a train, and this in itself is opposed to the idea of negligence: Ely v. Pittsburg, Cincinnati, Chicago & St. Louis Railway, 158 Pa. 233; and he stopped at the place where those driving towards the railroad usually stopped to look and listen for an approaching train. Under the testimony the jury were not bound to find that he was guilty of contributory negligence in not stopping at a point within 16 feet of the railroad, especially in view of the testimony of Thomas F. Stackhouse, a witness called by the plaintiff, who testified that, even after passing the line of the barber shop and getting into the 16 feet space, a clear view in the direction from which the train was coming could be had for only about 125 feet, and then only when the heads of the horses were over the first rail. While the jury might most fairly have found that the deceased was guilty of contributory negligence, it was, -under all the testimony, their province to pass upon that question, and not for the court to decide it as a matter of law.

Four of the assignments of error complain of the admission of testimony that the place where the deceased stopped was the usual and customary place of stopping to look and listen for trains of the defendant company coming from Philadelphia. No testimony could have been more competent. What the appellant complains of was not a mere expression of opinion by the witnesses that the place where the deceased stopped was a proper one and the best one from which to obtain a view of the approaching train, but was the statement of an actual fact, viz., that he had stopped where others habitually stopped for the same purpose. This was persuasive evidence that the place was the right one: Cookson v. Pitts-burg & Western Railway Company, 179 Pa. 184; but it was by no means, conclusive evidence on the point, and it was, therefore, competent for the appellant to show that the usual and customary stopping place was not the proper one and that the deceased ought to have stopped at a point nearer the track. This is what it unsuccessfully attempted to do, and the first four assignments are dismissed.

The testimony of the wife, the admission of which is complained of by the fifth and sixth assignments, shows the amount of farming and trucking which had been done by her husband, and that it was competent for her to prove this we decided on the appeal from the first judgment in the case: Buckman v. Philadelphia & Reading Railway Company, 227 Pa. 277. The judgment on the former trial was reversed because of the leading questions put to the wife. On the second trial no such question was put to her in eliciting what she said as to the extent of her husband’s business. If she improperly testified as to what she regarded as the profits, there are no assignments calling our attention to such testimony.

If counsel for appellant regarded the charge as inadequate upon the evidence as to the view which could be obtained of a coming train from a point upon the crossing, the learned trial judge gave him the opportunity to ask for fuller instructions, which were given, and in them, considered in connection with the general charge, no error is discoverable.

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


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Conway, Appellant, v. Philadelphia Hardware and Malleable Iron Works.

      Negligence — Master and Servant-Defect in Machinery — Nonsuit.
    In an action by a workman against his employer to recover damages for personal injuries received from his clothing being caught by the projection, from between the cast iron staves of a revolving rambler, of one of a number of cleats that were undergoing a polishing process within the rambler, a nonsuit is properly entered where the negligence' alleged is that the cleat projected because the usual opening between the staves had been caused by the gradual wearing away of the staves by the sand used in the rambler, and the only evidence to support this contention is that of the plaintiff himself to the effect that the staves were old and worn out, there being nothing to show that the plaintiff had ever looked at the machine until the moment of the accident, his observation being based on a mere glance given when he was caught and the machine was revolving.

      Argued March 22, 1911.
    Appeal, No. 59, Jan. T., 1911, by plaintiff, from order of C. P. No. 5, Phila Co., Dec. T., 1903, No. 1,330, refusing to take off nonsuit in case of Michael Conway v. Philadelphia Hardware & Malleable Iron Works.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts appear in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      John M. Vanderslice, with him Oscar H. Price, for appellant.

      F. B. Bracken, of Loughlin & Bracken, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

The defendant company in its foundry business operates a series of tumblers, or more properly speaking ramblers, for the cleaning and polishing of small iron castings of its own manufacture. These ramblers are of cast iron, constructed after the manner of a barrel, and barrel shaped, the staves being about a fourth of an inch apart. One of the staves is bolted at either end in a way that admits of its removal when the castings are either to be introduced or discharged; the other staves are fixed permanently in place, spaced sufficiently apart to allow the sand within the rambler when it has served its purpose to escape while the machine is revolving. Plaintiff was not in charge of any of these machines but was a general helper, employed frequently in gathering up and removing the sand after it had been used, and assisting as well in charging and discharging the machine. The day the accident occurred, while engaged in removing the sand, a coemployee in charge of one of the ramblers called for his assistance in opening a machine and taking therefrom its load of castings. While advancing to reach the place where his assistance was required, his clothing was caught by a cleat projecting from between the staves of a revolving rambler, and he was thrown between that rambler and the one next to it, and seriously injured. The projecting cleat was a small awning fixture, one of a mass that was undergoing the polishing process within the rambler. It seems clear enough that at the point where the cleat protruded the space between the staves exceeded the ordinary or regulation width. Had the width been uniformly one quarter of an inch the cleat would have been securely confined within the rambler. Since its partial escape was the alleged cause of the accident, the burden rested on the plaintiff to show that the cleat was where it was through the negligence of the defendant. How came it there? It must have been either because of a break in one of the staves at that point, or, because at that point the staves had been gradually worn away by the sand that had passed between them. The staves were of cast iron and it would seem almost incredible that the amount of sand that would pass through a crevice of a quarter of an inch over such a surface could by mere attrition appreciably reduce it. On the other hand it is matter of common observation that cast iron will under certain uses and tests crack and break into parts. We are not stating the case too strongly when we say that the average person, with nothing before him but the facts we have stated, and it not appearing that the rambler showed any change whatever in any of its parts at any other point, would without hesitancy refer the increased aperture between the staves, to breakage rather than as the result of attrition. Had the plaintiff assigned breakage as the cause, since it might have been the accident of a moment and of which the defendant could not have been advised, his case as presented would have been totally insufficient. Instead, he referred the separation of the staves to gradual attrition which upon proper inspection of the machine would have been revealed. We now reach the question of the case. Was the evidence offered sufficient to warrant a reasonable inference that the widened space resulted from a gradual wearing through attrition? If so, it was a case for the jury. We repeat here, because most appropriate in this connection, what was said by Mr. Justice Sterrett in Longenecker v. Penna. R. R. Co., 105 Pa. 328: “The preliminary question of law for the court undoubtedly is, not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; on the other hand, if the evidence is wholly insufficient to justify the jury in this finding, and the court would feel bound to set aside their verdict if they did so find, the testimony should be withdrawn from the consideration of the jury.” The plaintiff himself was the only witness who testified to the occurrence. As he passed the machine he knew it was revolving; but knew nothing of the projecting cleat until it had fastened on his coat. In answer to the question, “What did you see when your jacket was caught?” he replied, “One of these cleats that protruded between the two staves, the worn out old staves.” This question followed from the court, “I cannot hear you — the cleat protruded where?” To this he replied, “Between those two staves, your Honor. A space was between them— seemed to be worn out.” Again by the court, “You said something about being worn?” A. “The staves were worn out. There was a space between them about a half foot long or a foot, between half a foot and a foot.” We have given the whole of his testimony in chief so far as it relates to the cleat and the machine. He attempted the most feeble description of the rumbler and we are left wholly to conjecture with respect to the size of the cleat and the extent of its projection. He is silent as to any knowledge of this particular machine before the accident occurred, and yet he speaks of the staves as being old and worn out. So far as appears he had never looked at the machine until the moment the accident occurred. Indeed, upon his cross-examination, he testified that in describing the conditions where the cleat projected, he spoke from a mere glance he gave when he was caught, a matter of a second of time, and the machine then revolving. He states not a single fact with respect to the machine which gives support to his statement that the machine was worn out in any of its parts. From a rapid glance, in a moment of excitement and peril to himself, he reached a conclusion which at best could be nothing more than a conjecture. In saying that the widened space between the staves at this particular point was the result of wear, he was expressing not a fact warranting an inference, but a mere opinion. We repeat that the extent of this increased space where the cleat protruded, an inch in width and eight inches in length, indicated rather that it resulted from a break and not from a general wearing away, since it is only reasonable to suppose that the attrition at that particular point would be neither more nor less than any other between the same staves. The evidence furnished nothing upon which a jury could have based a conclusion that the accident occurred in one way rather than another. Upon a review of the evidence we are of opinion that it was not sufficient to carry the case to the jury, and that the nonsuit was properly ordered.

Judgment affirmed'.


author: Mr. Justice Brown,

text:
    Carpenter, Appellant, v. Miller & Son.

      Negligence — Explosives—Dealer in fireworks — Depositing refuse on dumping ground — Children—Proximate cause — Intervening act.

    1. A wholesale dealer in fireworks who has the refuse accumulating at his place of business put into barrels and deposited on a dumping ground, paying the lessee of the ground for the privilege, is not liable in damages to a twelve year old boy who goes on the dumping ground, picks out of the deposit a piece of fireworks, carries it to his home some distance away, and later in the day, after dark, lights it, and is injured by a resulting explosion.
    2. In an action to recover damages for personal injuries the plaintiff is not entitled to a recovery where the injury could not reasonably have been contemplated as the result of any act of the defendant but resulted from an independent, intervening act of the plaintiff.
    Argued March 23, 1911.
    Appeal, No. 46, Jan. T., 1911, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., June T., 1904, No. 3,295, on verdict for defendant in case of Andrew Carpenter and Charles F. Carpenter, by his father and next friend, Andrew Carpenter, v. John M. Miller, trading as John M. Miller & Son.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Staake, J.
    The facts appear in the opinion of the Supreme Court.
    The court directed a verdict for defendant and judgment was entered thereon.

      Errors assigned were in-directing a verdict for the defendant.

      John Weaver, for appellant.
    — The case was for the jury: Harriman v. Ry. Co., 45 Ohio St. 11 (12 N. E. Repr. 451); Heaven v. Pender, L. R. 11 Q. B. Div. 503; Pittsburg, C. & St. L. Ry. Co. v. Shields, 47 Ohio St. 387 (24 N. E. Repr. 658); Union Pacific Ry. Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. Repr. 619); Powers v. Harlow, 53 Mich. 507 (19 N. W. Repr. 257).

      Morton Z. Paul, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

The material facts in this controversy are not in dispute. The appellee was a wholesale dealer in confections, and, in connection with that business, dealt in fireworks. The refuse which accumulated at his place of business was put into barrels and taken to and deposited on a dumping ground leased by a man named Ludlow, who charged for the privilege of depositing it upon his lot. Children in the neighborhood of the lot used it as a playground against the protest of the lessee, who testified that, notwithstanding all he had done to keep them off, they were continually upon it. On July 24, 1902, an employee of the appellee took a wagonload of refuse from his store to this dumping ground and deposited it there, after paying the usual price for doing so. Charles F. Carpenter, the injured appellant — then twelve years of age — and two companions picked out of this deposit candy and fireworks. Young Carpenter took from it a piece of fireworks known as a “flowerpot.” He carried this to his home, some distance away, and later in the day, after he had eaten his supper and it had become dark, accompanied by a younger brother, took it to a stone wall and lighted it. An explosion followed, which resulted in the injuries for which compensation is sought in this action. A verdict was directed for the defendant, and from the judgment upon it there followed this appeal.

The dumping by the appellee of refuse containing fireworks on a lot where boys gathered to play is the negligence of which the appellant complains. Whether his doing so was negligence is a question upon which we need not pass, as it clearly appeared that the direct, proximate cause of the injuries sustained was something else. Under the uncontradicted testimony, the refuse, as soon as deposited upon the ground, became the property of Ludlow. In addition to receiving a stipulated sum for the privilege of depositing it, whatever was in it became his property as soon as it was deposited on the lot. Counsel for the appellee contends, and with reason, that after the refuse was thus sold to Ludlow, he alone was responsible for what was done with it. But on this we need not dwell. In dumping the refuse on the lot no injury was done to the boy. After it had been dumped on the lot nothing in it injured him there, and nothing in it would have injured him elsewhere if he had left it alone. Instead of doing so he and his companions dug out of it candy and fireworks; but in digging these out no injury was done to any one of them. Nothing done or left undone by the appellee caused injury to the boy on the lot where the alleged negligent act was committed. After taking out the flowerpot he carried it to his home, without informing his parents that he had it, and, without their knowledge, later in the day took it to a stone wall for the purpose of lighting or setting it off. This he did, and the very serious consequences complained of followed from his act.

There was nothing unlawful or unusual in appellee’s dumping refuse upon the public dumping ground. He did what is and has been constantly done in all thickly settled communities. In all rubbish heaps on dumping grounds there are to be found rusty iron, broken knives, bottles and glass and innumerable other useless articles, always likely to cause injury to boys who may dig them out and handle them, but it has never yet been held that one who thus does what is usual and customary is guilty of any negligence. Though there were unexploded fireworks in the refuse deposited by the appellee, they could have caused no injury unless fire was applied to them, while all the other articles enumerated might have caused injury without any intervening agency. The appellant- and his companion might have handled the flowerpot on the premises without the slightest danger of any injury to them unless they lighted it. The injury to young Carpenter was not the immediate consequence of the deposit of the refuse on the dumping ground, but resulted from his independent, intervening act in taking the flowerpot from his home, to which place he had safely carried it, and setting fire to it sometime afterwards. His injury could not reasonably have been contemplated as the result of the appellee’s act in placing the rubbish on the lot. -The boy’s own act was the direct, proximate eause of his injuries: Marsh v. Giles, 211 Pa. 17.

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


author: Mr. Justice Potter,

text:
    Holden, Appellant, v. Bernstein Manufacturing Company.

      Equity — Jurisdiction—Accounting—Patent royalties — Multiplicity of suits.

    1. Jurisdiction in equity is properly invoked by a plaintiff seeking for an accounting for royalties claimed under the terms of an article of agreement, upon sales of certain articles manufactured by the defendants, under the specifications of certain letters patent granted to plaintiff and afterwards assigned by him to the defendant, there being involved four different patents, each containing several claims.
    2. In such a case, equity, having taken jurisdiction of the accounting for royalties, will, in order to avoid multiplicity of suits, proceed with the settlement of other points in controversy between the parties, such as the amount of salary and the amount of commissions due one of the parties under the terms of a contract.
    3. Where a court of equity properly takes jurisdiction of one of the subjects of a contest, it will dispose of the whole matter in controversy between the parties and thus avoid a multiplicity of suits.
    Argued March 23, 1911.
    Appeal, No. 9, Jan. T., 1911, by plaintiff, from decree of C. P. No. 5, Phila Co., Sept. T., 1910, No. 994, dismissing bill in equity in case of George Holden v. Bernstein Manufacturing Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for discovery and account.
    The plaintiff’s bill was as follows:
    1. That your orator, upon June 21, 1907, entered into a written contract with the Bernstein Manufacturing Company, a corporation, defendant, whereby said defendant corporation engaged your orator as superintendent in defendant’s factory upon the terms therein stated. Said written contract was duly executed by your orator and defendant, and is as follows:
    “June the twenty first, 1907.
    “Mr. George Holden,
    “Dear Sir: We, the undersigned do hereby agree to engage your services as Superintendent of Construction with the view of lessening the cost of manufacture, and at the same time retain the present high standard of quality of our product and to improve upon any methods of construction that are at present not of the most approved modern practice.
    “You shall have full control of the force of mechanics and laborers. It is understood that you will give your undivided attention to our business and always work to the interest of the Company. Any letters patent that may be granted for inventions by you, are to be issued in your name and assigned to the Bernstein Mfg. Company.
    “For all of which we will pay you an annual salary of $3,500, Thirty-five Hundred Dollars, payable in monthly installments, and we further agree to pay you Two per cent (2%) on the amount of sales for any new business you may develop in the manufacture of Lockers, shop and office Fixtures; your services to begin August First, 1907, and to continue for Three (3) years. Each to give the other two (2) months’ notice prior to August First, 1910, of any intention of terminating this agreement, otherwise to continue in force from year to year thereafter. If this agreement is terminated at its expiration then we will agree to pay you one per cent (1%) for all goods of your invention that shall be manufactured by us for the full term of such patents.
    “Beenstein Mfg. Co.
    “Wm. F. Bernstein,
    “President.
    “Accepted Geo. Holden.”
    2. That your orator duly performed all his duties under the aforesaid contract with defendant.
    That in pursuance of said contract your orator invented a certain new and useful improvement in end rails for bed spring, which he duly secured by letters patent of the United States, No. 889,007, which he assigned to defendant; and a certain new and useful improvement in cots or bedsteads, which he duly secured by letters patent as aforesaid, No. 919,865, which he assigned to defendant; and a certain new and useful improvement in utensil sterilizers, which he duly secured by letters patent as aforesaid, No. 929,307, which he assigned to defendant; and a certain new and useful improvement in metallic cabinets, which he duly secured by letters patent as aforesaid, No. 943,350, which he assigned to defendant.
    3. That defendant did not permit your orator to have full control of the force of mechanics and laborers of defendant during the time of his employment, but the officers of defendant gave orders directly to employees properly under your orator’s control.
    That your orator did develop new business in the manufacture of lockers, shop and office fixtures, during the period the aforesaid contract with defendant was in force, and the defendant has made sales of said lockers, shop and office fixtures.
    That since the expiration of said written contract defendant has manufactured and sold goods of the invention of your orator.
    That said defendant has retained and still does retain the possession and ownership of the patents assigned to it by your orator, as aforesaid.
    That upon May 27, 1910, your orator notified defendant of his intention to terminate his services as superintendent, under the aforesaid written contract, upon the last working day of its term, viz., July 30, 1910, in accordance with the provisions of said agreement; and thereafter, on June 21, 1910, the defendant refused to permit your orator to continue his services as superintendent, and excluded him from their factory although your orator was ready and willing to, and did offer to do and perform his work as superintendent, as required by said contract. That defendant has not paid your orator the portion of his salary provided for in said contract, at the rate of $3,500 per annum, for the period from June 20, 1910, to July 30, 1910.

      4. That your orator does not know and is unable to ascertain, except from said defendant, the amount of sales of lockers, shop and office fixtures, and goods of your orator’s invention sold by the defendant, and your orator has demanded of defendant an accounting for sales of lockers, shop and office fixtures, and for sales of goods of his invention, and for payment of the sums respectively due on such sales, and for payment of his salary due as aforesaid from June 20, 1910, to July 30, 1910, as agreed to be paid according to said written contract, but the said defendant has neglected and refused and still does neglect and refuse to render your orator the accounts and make the payments as aforesaid.
    5. Wherefore your orator needs equitable relief, and prays that it may be ordered by your honorable court that,
    a. Said defendant may make discovery to your orator of all sales of lockers, shop and office fixtures sold'by them.
    b. Said defendant may make discovery to your orator of all sales of goods of his invention since July 31, 1910.
    c. Said defendant make a full and complete accounting to your orator of all lockers, shop and office fixtures sold by them, and of all goods of his invention sold by them since July 31, 1910.
    d. Said defendant pay to your orator his salary from June 20, 1910, to July 30, 1910, at the rate of $3,500 per annum, and two per cent on all sales of lockers, shop and office fixtures sold by them, and one per cent on all sales of goods of your orator’s invention since July 31, 1910.
    e. Your orator have such other and further relief, as to your honors may seem meet, in the premises.
    Defendant’s demurrer to the bill was sustained and the bill dismissed.

      Error assigned was the decree of the court.

      Paul Reilly, with him T. Truxton Hare and Henry B. Hodge, for appellant.
    — The appellant’s remedy was properly in equity: Holland v. Hallahan, 211 Pa. 223; Adams’s App., 113 Pa. 449.

      Paul C. Hamlin, with him Julius C. Levi, for appellee,
    cited: Owens v. Goldie, 213 Pa. 579; Shenango Furnace Co. v. Fairfield Twp., 229 Pa. 357; Murdock v. Martin, 132 Pa. 86.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

It appears from the record here, that the court below sustained a demurrer to the plaintiff’s bill. The reason is not given, but presumably it was because it was thought there was an adequate remedy at law. If this was the reason, we cannot agree that it is good in this case. The plaintiff sought for an accounting for royalties claimed under the terms of an article of agreement, upon sales of certain articles manufactured by the defendant, under the •specifications of certain letters patent of the United States granted to plaintiff and afterwards assigned by him to the defendant. The character of the accounting required, in order to give to the plaintiff the relief to which he is entitled, is such as to place it beyond the fair reach of a jury. The inventions for the use of which an accounting is sought, pertain to improvements in parts of articles, as for instance in end rails for bed springs, and to other devices in which the inventions were set forth in various written claims. Four different patents seem to be involved, and it is suggested that one of these patents has six claims; another patent has five claims, and another contains three claims. An accounting for royalties upon articles manufactured under some one or more of these various claims would involve an examination of the various articles manufactured, and a comparison of their structure with the elements of the inventions set forth in the claims of the various patents, and it would require also the fixing of the proportionate value of the parts of the articles included within the scope of the claims, to the value of the whole article. These processes would be far too complicated to be submitted to a jury with any reasonable expectation of an intelligent solving by them of the problems involved. Such work requires the services of a chancellor or of a master in chancery. In Adams’s Appeal, 113 Pa. 449, it was held that a bill in equity for an accounting is the proper remedy to recover royalties upon a patented article. It is a familiar doctrine that where a court of equity properly takes jurisdiction of one of the subjects of a contest, it will dispose of the whole matter in controversy between the parties, and thus avoid a multiplicity of suits: Myers v. Bryson, 158 Pa. 246; Gwinn v. Lee, 6 Pa. Superior Ct. 646. This would justify a court of equity, after having taken jurisdiction in this case of the complicated matter of the accounting for royalties, to proceed with the settlement of the other points in controversy between the parties, as to the amount of salary, if any, due to the plaintiff, and as to the amount of the commission due him on sales for any new business developed by him while in the employ of the defendant, in accordance with the terms of the contract.

The judgment of the court below is reversed, the bill is reinstated and the cause is remanded to the court below for further proceedings in accordance with this opinion.


text:
    Page v. Carr.

      Mechanics’ liens — Constitutional law — Special legislation — Act of June 4,1901, P. L. 431 — Title of act.

    1. Section 13 of the mechanics’ lien Act of June 4, 1901, P. L. 431, which gives priority to mechanics’ liens over advance money mortgages is embraced within the purview of the title of the statute but is unconstitutional because it violates the provisions of art. Ill, see. 7, of the constitution in that it gives to mechanics’ liens a preference and a priority of payment .greater than they possessed before the adoption of the present constitution.
    2. The title of an act of assembly need not be a general index to the contents of an act but it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions.

      Constitutional law — Statutes—Lapse of time.

    3. If a statute is plainly in conflict with the organic law, mere lapse of time cannot cure the defect.
    Argued March 24, 1911.
    Appeals, Nos. 368 and 369, Jan. T., 1910, by James J. Finn and Thomas Jennings, trading as Finn & Jennings, claimants, and the German-town Woodworking Company, claimant, from the order of C. P. No. 1, Phila. Co., March T., 1909, No. 1,225, awarding distribution in case of Harlan Page, mortgagee, v. John H. Carr, mortgagor, and Charles C. Norris, Jr., real owner.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Distribution of a fund raised by sheriff’s sale under a judgment upon a scire facias sur mortgage. Exceptions to report of George DeB. Myers, Esq., auditor.
    From the record it appeared that Harlan Page, mortgagee, issued a scire facias sur mortgage against John H. Carr, mortgagor, and Charles C. Norris, Jr., real owner. Judgment for want of an affidavit of defense was entered on April 3, 1909, in the sum of $34,167. Under this judgment the mortgaged premises were sold by the sheriff on May 3, 1909, to Warren F. Martin for $25,000. The mortgaged premises which were sold under the levari facias, consisted of twenty-four dwellings and a large lot of ground adjoining them. Against the twenty-four dwellings a number of material men had filed mechanics’ claims, and upon the petition of one of them, Reuben A. Fowler, the court below ordered the fund realized at the sheriff’s sale to be paid into court for distribution. Pursuant to this order, upon September 27, 1909, the sheriff paid into court the sum of $23,559.22, being the balance of the $25,000 paid by the purchaser at the sheriff’s sale, less city taxes and costs of suit.
    The court appointed George DeB. Myers, Esq., auditor. The claimants appearing before him were Harlan Page, mortgagee, and a number of mechanics’ lien creditors, as follows: John M. B. Morrow, Reuben A. Fowler, Reliance Manufacturing Company, James Moore, and the present appellants, Finn and Jennings, and the Germantown Woodworking Company. After the testimony was taken by the auditor some of the mechanics’ lien claimants filed petitions to have an issue awarded in order to have certain disputed questions of fact, raised by the testimony, determined by a jury. Subsequently these petitions and the rules thereon allowed by the court to show cause were withdrawn. On January 25, 1910, the auditor filed an interlocutory report, setting forth that the totel amount of the claims of the mechanics’ lien creditors amounted to a trifle over $8,800, and that the claim of Harlan Page was for the entire fund under his judgment of $34,167. The court upon February 11, 1910, upon petition and rule allowed Harlan Page, ordered that $10,000 of the fund in court be paid to Mr. Page, as mortgagee.
    The auditor upon April 7, 1910, completed his report, awarding the balance in court, amounting to $13,559.22, less the expenses of the audit, to Harlan Page, mortgagee.
    Exceptions to the auditor’s report were filed by Harlan Page, Reuben A. Fowler, Finn & Jennings, Germantown Woodworking Company, John M. B. Morrow and the Reliance Manufacturing Company. The auditor dismissed all the exceptions in his final report. The court dismissed the exceptions and confirmed the auditor’s report.

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

      Stanley Folz, with him Leon H. Folz, for appellants.—
    The mechanics’ lien act is constitutional and the title of the act sustains the thirteenth section: Com. v. Butler, 99 Pa. 535; Sugar Notch Borough, 192 Pa. 349; Likins’s Petition, 223 Pa. 456; Com. v. Charity Hospital, 198 Pa. 270; Blood v. Mercelliott, 53 Pa; 391; Com. v. Jones, 4 Pa. Superior Ct. 362:. Hays v. Cumberland County, 186 Pa. 109; Com. v. Moir, 199 Pa. 534; Com. v. Broad Street, etc., Ry. Co., 219 Pa. 11.
    Section 13 is not special legislation within the inhibition of art. III, sec. 7, of the constitution.
    Drastic and fantastic remedies unlike anything in the previous history of our' mechanic’s lien laws, and in no wise a proper feature of the system, will not be sustained: Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486.
    The provisions of the Act of June 8, 1881, P. L. 56, and of the similar section of the act of 1901 have stood upon our books for thirty years. Within that time they have met with the entire acquiescence of the profession in their constitutionality.

      Sheldon Potter, of Potter, Dechert & Norris, with him Alfred S. Miller, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

Two appeals from the same judgment, involving the same question of law, are here presented by different appellants. The question arises upon the distribution of a fund realized from the foreclosure of a mortgage, which represented purchase money, although it was postponed to the lien of advance money mortgages in aid of a building operation. The principal question raised is the constitutionality of the thirteenth section of the mechanic’s lien Act of June 4, 1901, P. L. 431, which gives priority to mechanics’ liens over advance money mortgages. The learned auditor appointed by the court below to make distribution of the fund, held that the thirteenth section above referred to, was unconstitutional and void, and awarded the fund to the holder of the mortgage. He based his conclusion upon two grounds, the first being that the subject of the statute was not clearly expressed in the title, and therefore it was in violation of art. Ill, sec. 3, of the constitution. We are not impressed with the strength of this proposition. As was said in Gilbert’s Estate, 227 Pa. 648: “It has been decided over and over again that the title need not be a general index to the contents of an act, but that it is sufficient if it relates to one general subject, no._-matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions.” And in Bridgewater Boro. v. Bridge Co., 210 Pa. 105, our Brother Brown said (p. 108): “If the title fairly gave notice of the subject of the act, so as to reasonably direct inquiry into its body, the constitutional requirement was not violated: State Line & Juniata R. R. Co.’s Appeal, 77 Pa. 429; Carothers v. Phila. Co., 118 Pa. 468; Dailey v. Potter County, 203 Pa. 593.” The evil of loading the title of an act with details, in the effort to express the subject clearly, was pointed out in Com. v. Broad St. Ry. Co., 219 Pa. 11, by Chief Justice Mitchell, where he says (p. 17): “It has always been held that the title of an act need not be a complete index to its contents. The time has come to say that it not only need not, but ought not.” The auditor felt that the title indicated that it affected only “parties to” building contracts, and gave no notice to anyone other than “parties to” such contracts that they might be affected by the legislation. But the title gives notice of more than this when it describes the act as regulating the effect of contracts for work and labor to be done, and labor and materials to be furnished to any building, etc. When this statute was enacted, there was other legislation in existence upon the subject of the priority of mechanics’ liens over advance money mortgages, and the notice in the title of this act, as to repealing, consolidating and extending existing laws in relation to building contracts was sufficient to put parties interested in the effect of such contracts, upon notice.. It is plain that the act was intended to be a codification of the law relating to claims under contracts for work done and materials furnished to buildings. Such work may be done, and such materials may be furnished by others than mechanics, so there can be no special significance in the fact that the phrase “mechanics’ liens” does not appear in the title so long as descriptive words are used which include not merely mechanics but others who are entitled to protection for their claims, under the act.

Our difficulty in this instance is not with the title, but is with the second proposition, as to whether the thirteenth section offends art. Ill, sec. 7 of the constitution, which provides, “The General Assembly shall not pass any local or special law .... providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate.” The scope of this provision with respect to various sections of this statute of 1901 has been so thoroughly discussed in several late opinions of this court, that little remains to be said by way of amplification.

Thus the twenty-eighth section, which gave to a subcontractor or material man the right to issue an attachment execution against the owner, or other party indebted to the contractor for labor or materials furnished, was held unconstitutional in Vulcanite Cement Co. v. Allison, 220 Pa. 382.

Section 46, which provided for the enforcement of the judgment on the lien by a special fi. fa. under the Act of April 7, 1870, P. L. 58, was, in Vulcanite Paving Co. v. Transit Co., 220 Pa. 603, held to violate the constitution.

Section 38, which permitted mechanics’ liens to be filed against a building, without reference to the land, and provided for the sale and removal of the building for the benefit of lien holders, was held to be within the ban, in the opinion in the case of Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486; and

Section 35, which gave the right to enter a personal judgment against a contractor who has been served with the original scire facias or any scire facias to revive, was held to violate the same provision of the constitution, in Sterling Bronze Co. v. Improvement Assn., 226 Pa. 475.

Turning to the question now before us, it appears that prior to the constitution of 1874, advance money mortgages had priority over mechanics’ liens. In Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486, this court said (p. 493): “The whole act of 1901 is legislation for a special class of creditors, some of the provisions of which are permissible because the constitution of 1874 did not intend to wipe out the system to which they relate; but those providing special methods or changing old ones for the collection of debts due the special class of creditors or for the enforcement of judgments recovered by them are prohibited by the organic law.”

The result of the decisions above noted, is to make it clear that any provision of the act of 1901 which is clearly divergent from, and is an advance upon the law as it stood prior to the constitution of 1874, is to be regarded as invalid. As the effect of sec. 13 is to grant to mechanics’ liens a preference, and to give to them a priority of payment that they did not have, and to which they were not entitled prior to the present constitution, it must be held invalid. As the learned auditor says, “The plain and practical result of the act is that the mechanic has in the enforcement of his liens, higher rights and greater privileges under the statute than he had prior to the constitution, which forbids the extension of the lien.” It was urged in the argument of counsel for appellant, that the section in question is substantially a re-enactment of the earlier act of 1881, and that long acquiescence in the similar provisions of the former statute should have controlling weight now, in favor of the constitutionality of the section. The answer to this suggestion may be found in the late opinion of this court in Kucker v. Oil Co., 230 Pa. 528, where an argument similar in that respect was made. If a statute is plainly in conflict with the organic law, mere lapse of time cannot cure the defect.

We agree with the conclusion reached by the auditor as set forth in his able report, and affirmed by the court below, that the thirteenth section of the Act of June 4, 1901, P. L. 431, violates the provisions of art. Ill, sec. 7, of the constitution, in that it gives to mechanics’ liens a higher dignity, and greater priority than they possessed before the adoption of the present constitution. Distribution of the fund realized was therefore properly made to the mortgage creditor. The assignments of error are overruled, and the decree of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Johnson v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Street crossing — Pedestrian—Engine running backwards — Signals—Contributory negligence — Case for jury.

    In an action against a railroad company to recover damages for the death of a pedestrian struck by a train on a public street crossing the case is for the jury where it appears that the engine was running backwards with a tender ahead, with a couple of small lights on the tender but no headlight, that the evening was dark and misty and the range of ■vision was limited, that cars standing near the crossing and an elevation in the ground covered with weeds obstructed the view in the direction of the approaching train, and where several witnesses listening for signals and in a position to hear, testify that no signals were given.
    Argued March 24, 1911.
    Appeal, No. 12, Jan. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1907, No. 618, on verdict for plaintiff in case of Lillie Johnson v. Philadelphia & Reading Railway Company.
    Before Bkown, Mesteezat, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Trespass to recover damages for death. Before Kinsey, J.
    Plaintiff’s husband, William Johnson, was struck by an engine while crossing the tracks of the defendant railroad at Venango street in the city of Philadelphia, and died from his injuries.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $12,500 and judgment thereon. Defendant appealed.

      Error assigned was in refusing to direct judgment for the defendant.

      Wm. Clarke Mason, for appellant.

      Augustus Trask Ashton, with him Victor Frey, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Elkin,

While walking over the tracks of appellant company at a grade crossing in the city of Philadelphia, the husband of appellee was struck and killed by a tender pushed ahead of the engine: The questions for decision here are, first, was there sufficient evidence of negligence to submit to the jury, and second, whether the deceased husband should have been declared guilty of contributory negligence as a matter of law. As to the first question there is but little doubt. The engine was running backward with the tender ahead. There were a couple of small lights on the tender but no headlight. As to danger signals the evidence is conflicting. Several witnesses listening for the signals and in a position to hear testified that none were given, or that they did not hear any. On the other side there is the positive testimony of several witnesses that the signals were given. The witnesses who testified that they did not hear any warning of the approach of the engine were on the street close to the railroad and had either crossed or were about to cross the tracks when the accident occurred. They were listening for the approach of trains and were in a position to hear if warning had been given. Under these circumstances it cannot be said that the testimony of these witnesses was of such an indefinite and negative character as to amount only to a scintilla. We think the evidence of negligence was sufficient to carry the case to the jury.

While the other branch of the case may not be entirely free from doubt we have concluded after a careful examination of the whole record that the question of contributory negligence was also for the jury. In this connection the surrounding circumstances at the time of the accident are the controlling factors. It was almost if not entirely dark. The evening was dark and misty. The range of vision was limited. A number of freight cars were standing on the westernmost track a little distance north of the crossing. These cars necessarily obstructed the view for a considerable distance in the direction of the approaching engine. As he approached the crossing the view of the deceased husband was further obstructed by an elevation in the intervening ground covered with tall weeds. Under such circumstances he might have looked and not have seen the approaching engine. At least the facts are not so clear as to require the court to say as a .matter of law that he failed in the performance of an imperative duty. In the absence of evidence to the contrary the decedent is entitled to the presumption that he did his duty as he approached the crossing. We see nothing in the evidence to rebut this presumption. Indeed, the testimony rather strengthens than weakens it. There is positive testimony that he stopped before attempting to cross, but it does not clearly appear at what place this stop was made. It tends to show, however, that he was proceeding carefully. The witness Brooks testified that he saw decedent standing on the crossing and then take a step forward when he was struck by the tender. This is relied on to show contributory negligence and it was proper for the jury to consider it for this purpose. The question is should it have been so declared by the trial judge. Under the circumstances we think not. It was practically dark. The tender carried no headlight. The small lights were not intended for this purpose and may have misled the pedestrian so far as giving notice of a moving engine is concerned. The freight cars standing about ten feet from the crossing obstructed the view until within a few feet of the track upon which decedent was struck and killed. The space between the overhang of these cars and the engine which caused the injuries is very small at best and it is evident that it did not afford decedent sufficient opportunity to protect himself against an impending danger. At least it was for the jury to say whether he exercised the care the law requires under the circumstances. We agree with the learned court below that this was a case for the jury. There are no assignments complaining of the manner of its submission. Appellant rests its case upon the contention that binding instructions should have been given in its favor, or that judgment non obstante veredicto upon the whole record should have been entered. With this contention we cannot agree for the reasons hereinbefore stated. In answer to the suggestion of appellant that a new trial should be granted even if the other contentions are not sustained, it may be said that no new trial was asked in the court below and there is nothing in this record to warrant us in awarding a new venire. There is not even an assignment of error upon which to base a new trial.

Judgment affirmed. .


text:
    Pleasonton’s Estate.

      Decedents’ estates — Trusts and trustees — Guardians—Practice, O. C.— Finality of adjudications — Collateral proceeding.

    1. A decree of the orphans’ court confirming an account is, in all cases, conclusive of the matters contained in it, when attempted to be drawn in controversy in a collateral action.
    2. Where, under the will of a testator, a fiduciary institution receives a sum of money upon trust “to invest and keep the same invested and receive the interest and income thereof and apply the same, or so much thereof as shall be needed, for the support, maintenance and education” of testator’s niece until her age of twenty-one years or marriage, whichever shall first happen; and from and after her full age aforesaid, or marriage, to apply the net income for her sole and separate use, without the control or interference of any husband whom she may marry, and so that she shall not have power to dispose thereof by anticipation,” and after testator’s death a guardian is appointed for the niece upon petition of her father, and several months after the niece arrives at majority the guardian files a final account of his guardianship, in which he debits himself with the entire income derived from the trust fund which the fiduciary company had paid over to him at regular stated periods, the account including nothing besides and claiming credits for sums expended for the support, maintenance and education of the ward, and a cash balance shown in the account as due the ward is duly paid over upon final confirmation, and it appears that in the adjudication proceeding, on this account, the ward was duly represented by counsel and was herself personally present and the account was confirmed without exceptions having been filed thereto, the ward has no standing in court, upon a later adjudication of the account of the fiduciary company as trustee under the will of testator, to object to the fiduciary company taking credit for payment of income from the trust fund to the guardian of the cestui que trust, embracing the same items with which the guardian had debited himself in his final account.
    Argued March 27,1911.
    Appeal, No. 327, Jan. T., 1910, by John Cadwalader, executor of Elizabeth Hoge Pleasonton LaMothe, substituted appellant, from decree of O. C. Phila. Co., Jan. T., 1896, No. 322, now changed to No. 527, dismissing exceptions to adjudication in Estate of Elizabeth Pleasonton, deceased.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      John Cadwalader, Jr., for appellant.
    — Where a guardian duly appointed by will or otherwise has ignored its duties and made payments to another acting as such under color of authority, such payments may be treated as a nullity: Reed v. Mellor, 122 Pa. 635; Hollingsworth’s App., 51 Pa. 518; Robinson v. Zollinger, 9 Watts, 169; Vanartsdalen v. Vanartsdalen, 14 Pa. 384.
    The question was not res adjudicata: Kinter’s App., 62 Pa. 318; McMahon’s Est., 14 W. N. C. 311.

      The cestui que trust was not guilty of laches: Gress’s App., 14 Pa. 463; Maulfair’s App., 110 Pa. 402; Fidelity Ins. Trust & Safe Deposit Co.’s App., 115 Pa. 157; Henry’s Est., 198 Pa. 382.

      John G. Johnson, with him Maurice Bower Saul, for appellee.
    — The payments to the guardian were proper and the adjudication of his account was conclusive of their propriety: Bentel’s Est., 33 Pitts. Leg. Journal, 177; Bayard v. Atkins, 10 Pa. 15.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

Under the will of Elizabeth Pleasonton, deceased, probated August 6, 1894, the Pennsylvania Company for Insurances on Lives and Granting Annuities, the appellee here, received the sum of $20,000 upon the following trust, “To invest and keep the same invested and receive the interest and income thereof and apply the same, or so much thereof as shall be needed, for the support, maintenance and education of my great niece, Elizabeth Hoge Pleasonton, until her age of twenty-one years or marriage whichever shall first happen; and from and after her full age aforesaid, or marriage, to apply the net income for her sole and separate use, without the control or interference of any husband whom she may marry, and so that she shall not have power to dispose thereof by anticipation.” A power in said Elizabeth Hoge Pleasonton to dispose of the said principal sum by testamentary act follows, a power which she exercised in full accordance with the directions of the trust. This circumstance does not enter into the present controversy, and we have quoted from the will only what is here pertinent. On the petition of the father of Elizabeth Hoge Pleasonton, who was then twelve years of age, the court appointed J. M. Stone, Jr., guardian of the minor’s person and estate. On September 25, 1905, the minor having several months before arrived at full age, the guardian filed a final account of his guardianship, in which he debited himself with the entire income received from the $20,000 trust fund in the hands of the Pennsylvania Company for Insurance on Lives, etc., and which at regular stated periods that company had paid over to him. The account included nothing besides. The credits claimed were for sums expended for the support, maintenance and education of the ward. A cash balance due the ward of $1,763.77 was shown, and this upon final confirmation of the account was duly paid over. In the adjudication proceeding on this account, the ward was duly represented by counsel, and was herself personally present. The account was confirmed December 9,1905, no exceptions having been filed. On March 21, 1910, at the request of counsel for appellant, the Pennsylvania Company for Insurance on Lives, etc., filed its account as trustee under the will of Elizabeth Pleasonton, in which it debited itself with all the income derived from the principal sum of $20,000, and took credit for payment' of the sums to the guardian of the cestui que trust during the latter’s minority, embracing the same items with which the latter had debited himself in his final account. These credits were objected to on behalf of the appellant, on the ground (1) that the accountant was itself the testamentary guardian of Elizabeth Hoge Pleasonton, and that with respect to this particular fund the appointment of any other person was a nullity; (2) that under the terms of the trust it was the duty of the trustee to apply the income, or so much thereof as should be needed, for the support, maintenance and education of the cestui que trust, and that by paying over the entire income and accumulation to a third person, without inquiring into the necessity of the payments or seeing to the application thereof, the trustee had disregarded its duties and should be surcharged. These objections did not prevail with the auditing"court; the account was confirmed, and we have this appeal from the final adjudication. The same objections which were relied upon below are urged upon us here. While it is incorrect to say that the appellee was testamentary guardian of appellant, it .is unquestionably true with respect to this particular trust fund and its increment, that the legal guardian was without authority or responsibility in connection therewith. The power and duty of the appellee with respect to it were defined in the will of Elizabeth Pleasonton. It was to its legal discretion, within defined limits, that the will committed the employment of the income derived from the fund. The utmost limit to which the legal guardian’s interference could have gone, would have been to ask the intervention of the court in case of abuse of discretion on the part of the trustee in failing to perform a manifest duty. This however is a minor consideration in the determination of the appeal. The real question is, what effect is to be given the final confirmation of the guardian’s account in the present controversy? Admittedly the money expended for the support, maintenance and education of his ward, and for which the guardian is credited in that account, was the interest and income which the appellee derived from the trust fund it had in its keeping. Were these .expenditures proper and legal? Unquestionably they were proper subjects of a guardianship account, and, that being so, the confirmation of the account, until a rehearing or a review be allowed, must be held to be conclusive on all the world. The confirmation is in itself an adjudication that the expenditures for which credit was allowed were both proper and legal. If proper and legal for the guardian, why not for the trustee, their duties and obligations being the same? In the earlier proceeding appellant had full opportunity to contest these credits, and she knew that the expenditures on which they were based’ were from the income of the trust fund. She remained silent and assented to the decree of confirmation. Had the credits been disallowed at her.instance, her trustee would have remained liable to her, pro tanto, notwithstanding the fact that it had paid the money over to the guardian. On the face of the facts, as we are given to understand them, in paying the money to the guardian the trustee was without excuse, and it paid its own risk that the guardian would apply it in a way that would be subsequently approved. The payments were subsequently approved, and having been adjudicated, the end of the controversy with respect to them was reached. It is a settled principle that a decree of the orphans’ court confirming an account, is, in all cases, conclusive of the matters contained in it, when attempted to be drawn in controversy in a collateral action: Clark v. Callaghan, 2 Watts, 259.

But, it is said, the trustee has been derelict in its duty in failing to exercise its own judgment and discretion in expending the money, and committing this duty absolutely to the guardian. The answer to this is, conceding it to be true, if harm or loss has resulted, it is due to the silence and acquiescence of appellant when she should have spoken and resisted. She had her day-in court when these matters of expenditure were being adjudicated. That adjudication is a judicial finding that no harm or loss did result from the particular expenditures here complained of. We quite agree that it was the bounden duty of the appellee, under the terms of this trust, to study for itself the conditions calling for the expenditure of the money, and to acquaint itself with the situation of the cestui que trust, so as to be able to exercise a sound discretion in the matter of disbursement. The confidence reposed was in the judgment and discretion of the trustee, and not in that of an unnamed guardian. Apparently the trustee wholly neglected this duty and committed it to the guardian. While no actual loss because of this is shown, it was nevertheless such a plain and manifest dereliction of duty, that had a forfeiture of right to commissions been decreed on this account, the appellee would have had little reason to complain. The allowance of commissions to the trustee is however not assigned for error, and since it is not complained of, we shall not interfere. In what we have said above all the assignments of error have been considered; they are overruled, and the decree of the court is affirmed, the costs on the appeal to be paid by the appellee.


author: Mr. Justice Moschzisker,

text:
    Power, Appellant, v. Grogan.

      Practice, O. C. — Equity powers — Appointment of Receivers — Decedents’ estates — Ejectment.
    1. Although the orphans’ court has been called a court of equity, in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it. It possesses neither general chancery powers nor direct statutory authority by virtue of which it can appoint receivers.
    2. The orphans’ court has no power to make an appointment of an administrator c. t. a. as receiver of the testator’s estate for the purpose of bringing an action of ejectment for certain real estate devised by the will to a life tenant with a limited power of alienation and conveyed by the latter to a third party in fee.

      Decedents’ estates — Executors and administrators — Administrator c. t. a. — Right to bring ejectment.

    3. Where the will of a decedent authorizes, empowers and directs his executor to sell, transfer and convey his real estate, the executor, by virtue of the operation of the Act of February 24, 1834, takes an estate in the land as fully as if it had been devised to him to be sold and may, therefore, maintain ejectment to recover the possession, and an administrator c. t. a. has all the rights that would have been possessed by the executor named in the will.

      Practice, C. P. — Amendments—Ejectment—Change of parties — Plaintiff suing in representative capacity.

    4. Although a change of parties which involves a change of the cause of action is not within the province of amendments they may be allowed when a change in the cause of action is not involved; and, in such instances, amendments may be permitted where the proper individual is on the record as plaintiff but is erroneously designated as to the capacity in which he has a right to sue.
    5. Where the statute of limitations does not prevent, an administrator c. t. a. with power to bring ejectment may be substituted as plaintiff in his representative capacity in an ejectment begun by himself as receiver of the testator’s estate under appointment of the orphans’ court.

      Evidence — Ejectment—Real estate — Contract of sale — Consideration— Value of land — Value of services given as consideration — Witness—Party deed — Subornation of witness.

    6. In an action of ejectment by the administrator c. t. a. of a decedent to recover possession of certain real estate where the defendant relies upon an alienation of the premises in question to herself by a life tenant with power of alienation for support and maintenance under the will of decedent, in consideration of the maintenance and support of the life tenant by the defendant, the plaintiff should be permitted to prove the value of the property and the value of defendant’s services rendered in pursuance of the contract of maintenance.
    7. In such a case the defendant may testify as to matters which took place after the decedent’s death between his widow and herself.
    8. In an action of ejectment it is proper to permit a witness offered by the plaintiff to prove that the defendant had offered to pay the witness a money consideration if she would not take the witness stand against the defendant.
    Argued March 27, 1911.
    Appeal, No. 68, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 2,280, on verdict for defendant in case of William J. Power, receiver of the real and personal estate of John Loughran, deceased, v. Catherine Grogan.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Ejectment to try the title to house and lot at northeast corner of Fifteenth and Catherine streets, Philadelphia. Before McMichael, P. J.
    John Loughran died May 3, 1890, leaving a widow, Bridget, but no surviving issue. By his will he gave to her, after payment of debts and various legacies, all of his residuary estate “for life, it being my wish and will, however, that she shall use whatever of the principal of such residue as may be necessary for her proper maintenance and ■ support.” Upon her death he gave the residue to such Catholic charities as she might designate in her last will. The testator then provided that should his wife fail to designate charities to take the ultimate residuum, it should go to certain institutions specified by him. He appointed his wife executrix of his will and provided, “I do hereby authorize, empower and direct my said executrix to mortgage, sell, transfer or convey any or all of my real estate, whenever she may think proper.”

      The widow died March 29, 1902, leaving five or more alleged last wills under successive dates, each of which was claimed by the beneficiaries thereunder to be the only lawful will. The last in date of these wills became the subject of contest immediately after her death, which contest on July 14, 1909, reached a conclusion favorable to the will: Trainer v. McGarrity, 40 Pa. Superior Ct. 57. In June, 1906, when the issue devisavit vel non had been awaiting trial for several years, the present plaintiff, upon his own petition as the administrator c. t. a. of the estate of John Loughran, deceased, was appointed by the orphans’ court receiver of all the assets of the said estate. The petition set forth that if the alleged will then in contest were rejected, the next prior will would immediately become the subject of a new contest, and so with each of the other wills. The petition further averred that Catherine Grogan, the' defendant here, had entered into-a transaction with the testator’s widow, Bridget Lough-ran, when the latter was upwards of seventy years of age, whereby, for an expressed consideration of one dollar, the widow had undertaken to convey to the defendant the real estate in question, which was part of the estate of John Loughran, and that the defendant was in possession of and claimed the property in fee simple; that she was without means and would be unable to respond in mesne profits; that by reason of the pending will contest, and those in prospect, no action of ejectment could be brought for an indefinite period without the appointment of a receiver for that purpose. The petition prayed that a receiver be appointed to take possession of the real and personal property belonging to the estate of John Loughran. On July 19, 1906, the plaintiff, William J. Power, was appointed such receiver, and he thereupon instituted this action of ejectment.
    At the first trial of the cause in the court below the plaintiff was nonsuited because he had not been expressly empowered by the orphans’ court to institute the litigation, but on May 24, 1910, the orphans’ court ratifled and confirmed the act of the plaintiff in bringing the suit, and the nonsuit was taken off. When the case was again tried, the plaintiff proved title in John Loughran and rested. The defendant then introduced evidence to show that Bridget Loughran had conveyed the property to her in pursuance of an agreement to compensate her for nursing and caring for said Bridget Loughran so long as she lived. After rebuttal testimony, the issues were submitted to the jury and a verdict was rendered for the defendant. The plaintiff has appealed from the judgment entered upon that verdict.
    The trial judge charged inter alia as follows:
    “John Loughran, after he had made certain legacies, .... made this provision: ‘I give, bequeath and devise all the rest, .... of my estate .... to my wife, Bridget Loughran, for fife, it being my wish and will, however, that she shall use whatever of the principal of such residue as may be necessary for her proper maintenance and support.' My construction of that clause is that it did not give to Bridget Loughran power to absolutely dispose of that property unless it was necessary for her maintenance and support. . . . She had not the right to arbitrarily dispose of the property. . . . Whether or not Bridget Loughran was justified in making provision for her support- and maintenance to the end of her life, by employing some one to take care of her and keep her until the end of her life and agreeing to convey the property to her .... will be a question of fact for you. There will be another question of fact for you to determine, — did she make such a bargain. ... If she, from motives of affection, or from any motive at all, simply gave this property to Catherine Grogan .... she was exceeding her power under the will. Her husband .... meant that she should have the property or the use of it for her life, and that she should use so much of it as was necessary for her maintenance and support.” After referring to the testimony relating to the negotiations between the widow and the defendant .concerning the bargain for the services to be rendered by the latter to the former and the subsequent conveyance of the property as alleged by the defendant in fulfillment of that bargain, the court went on to say, “Was that done in good faith? Was it the act and deed, was it the voluntary act, — assuming that you come to the conclusion that it was necessary, that she thought it was necessary, and it was necessary for her support and maintenance, — was it her free act and deed, or did Catherine Grogan, the younger woman, exercise such an influence on the mind of the older woman as to amount to a fraud? Or, did Catherine Grogan, — and this you will have to determine, — in furtherance of a selfish, — I say no more than selfish, — design to get hold of the woman’s property, get her to deed the property to her? .... The question you will have to determine is, Was it a fair and equitable transaction? Or, did' Catherine Grogan impose on the old woman? Did she impose her will on that old woman’s will? Did she make a sharp bargain with the old woman, and use fraud to carry it out? . . . .” Then, after referring to the evidence in a general way and to the deed to the defendant, the court said, “That is all testimony for you to consider, first, as to whether it was necessary for her support and maintenance, and if so, whether the bargain was made as Catherine Grogan says it was made. And if it was made, then consider whether it was made under duress. . . . That is, under force which the superior will acting upon an inferior one exerts, which the strong, vigorous, healthy person has upon the sick and infirm; or, to put it in another way, whether there was fraud. Because if there was fraud, this deed should be swept aside.” And, in answer to a point, the court again said, “Unless the jury find that it was necessary for the proper maintenance and support of Bridget Loughran, to make use of the property in question, by conveying the same away from the estate, they must find for the plaintiff.”
    Verdict and judgment for defendant. Plaintiff ap-. pealed.

      Errors assigned were (1) overruling plaintiff’s objection to testimony by the defendant regarding matters occurring between herself and Bridget Loughran before the latter’s death; (2) excluding evidence of the value of the property in question; (3) excluding evidence of the value of the defendant’s services to the widow, Bridget Lough-ran; (4) excluding evidence to show that another property enjoyed by the widow was purchased with moneys belonging to the estate of John Loughran; (5) refusal to strike out evidence offered by the defendant to establish the contract between herself and the widow; (6) refusal to allow a witness offered by the plaintiff to prove that the defendant had offered to pay her a money consideration if she would not take the witness stand against the latter; (7) exclusion of a question objected to as leading; (8) a portion of the charge in which the trial judge told the jury that the testimony which had been admitted concerning the defendant’s experience and capacity as a nurse should only be considered by them in passing upon her credibility, and that “as to the exact amount of wages she got, I do not think it very important, except in so far as it affects her credibility;” (9) refusal of binding instructions for the plaintiff; (10) refusal to charge that “the transaction between the defendant and Bridget Loughran is not shown to have been a fair and equitable one;” (11) affirming defendant’s eighth point: “If the jury believe that the defendant, Catherine Grogan, at the request of the said Bridget Loughran and upon her promise to compensate defendant, went to live with the said Bridget Loughran, .... and assisted, nursed and waited upon and attended her from December, 1900, to March, 1902, when Bridget Loughran died, during which time defendant received no wages therefor, and if you believe that said Bridget Loughran, in good faith and as an honest exercise of the discretion vested in her by her husband’s will, deeded said property to Catherine Grogan, the defendant, in consideration of the said Catherine Grogan having come to live with her, and having assisted, nursed, waited upon and attended her prior to the date of the deed, and also in consideration of said defendant, assisting, nursing; waiting upon and attending her for the balance of her life, then the defendant has paid a full, complete and fair consideration for the property in question, and the same rightfully belongs to her, and your verdict should be for the defendant;” (12) refusal to enter judgment non obstante veredicto for the plaintiff; (13) entry of judgment for the defendant.

      E. Spencer Miller, with him James Fitzpatrick and Anthony A. Hirst, for appellant.
    — The jury should have been charged peremptorily for plaintiff, because the transaction set up by the evidence of defendant, whereby she claimed to have acquired title to the property in question, would have been an invalid one: Johnson v. Johnson, 51 Ohio St. 446 (38 N. E. Repr. 61); Baxter v. Bowyer, 19 Ohio St. 490; Cox v. Wills, 49 N. J. Eq. 573 (25 Atl. Repr. 938); Fox’s App., 99 Pa. 382; Follweiler’s App., 102 Pa. 581; Cox v. Sims, 125 Pa. 522; Taylor v. Bell, 158 Pa. 651; LaBar’s Est., 181 Pa. 1; Gross v. Strominger, 178 Pa. 64; Tyson’s Est., 191 Pa. 218; Trout v. Rominger, 198 Pa. 91; Davis & Desauque’s Est., 5 Whart. 530; Swoyer’s App., 5 Pa. 377; Brittain’s Est., 28 Pa. Superior Ct. 144; Mulholland’s Est., 224 Pa. 536; Spencer’s Est., 227 Pa. 469.
    Even if the transaction was not necessarily invalid, the charge and rulings did not permit the jury to find that the transaction, as alleged to have been effected, was not “necessary for her proper maintenance and support.”
    Plaintiff ought to have been allowed to prove that the defendant offered to pay Margaret Devine $200 if she would not take the witness stand against her: McHugh v. McHugh, 186 Pa. 197.
    If a fundamental question, which was originally decided by the court below, in plaintiff’s favor, to wit, the standing .of the receiver who is plaintiff, in an action of ejectment, properly arises now in this court, the ruling of the court below upon that point must be upheld: Hughes’s App., 53 Pa. 500; Jones v. Maffet, 5 S. & R. 523; Church v. Ruland, 64 Pa. 432; Rosenberg v. Mencke, 208 Pa. 331.

      Henry A. Hoefler, for appellee.
    — Binding instructions, or judgment non obstante veredicto, cannot be given or entered, where any question of fact arises for the determination of a jury: Dalmas v. Kemble, 215 Pa. 410.
    The widow had the right to convey: Tyson’s Est., 191 Pa. 218.
    Catherine Grogan was a competent witness. It is submitted that McHugh v. McHugh, 186 Pa. 197, cited by appellant, does not apply where the defendant goes on the stand.
    The appellant had no right to bring this action of ejectment: Jones v. Maffet, 5 S. & R. 523; Warden v. Eichbaum, 14 Pa. 121; Webster v. Webster, 53 Pa. 161; Hughes’s App., 53 Pa. 500.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

The plaintiff was appointed receiver by the orphans’, court and brought this action of ejectment in that capacity. Since, for reasons which will be hereinafter stated, the case must be retried, before considering the several formal assignments of error, we shall first dispose of the question of the right of the orphans’ court to appoint and authorize a receiver to institute and prosecute such an action, and determine, in this respect, how the action should be proceeded with in the court below.

“The appointment of a receiver is a remedy of purely equitable origin, having originated in the English Court of Chancery, where it has been employed from a very early time. It ... . grows out of the inherent power of a court of equity to afford relief where the remedies to be obtained in the courts of ordinary jurisdiction are inadequate:” 23 Am. & Eng. Ency. of Law (2d ed.), 1002; Kerr on Receivers (5th ed.), 1. “The jurisdiction exercised in the appointment of receivers has always been treated as a purely equitable one, and the remedy has been generally regarded, next to that of injunction, as the most efficient and salutary of the extraordinary remedies known to the courts of equity:” High on Receivers (4th Ed.), sec. 41. “The appointment of a receiver is the exercise of a power in aid of a proceeding in equity. . . . The court must be convinced that it is needful and is the appropriate means of securing a proper end:” Chicago & Allegheny Oil & Mining Co. v. U. S. Pet. Co., 57 Pa. 83, 91. The Act of May 19, 1874, P. L. 206, sec. 7, vests the orphans’ court with power to issue preventive orders “in the nature of injunctions,” but neither that nor any other statute expressly gives it the right to appoint receivers. Since the orphans’ court does not possess general chancery powers, it is difficult to conceive by what authority it made the appointment in this case. Further, we fail to see the necessity for the appointment.

In Com. v. Judges of the Court of Common Pleas, 4 Pa. 301, 302, we said: “Our orphans’ court is essentially .... (a court of chancery) in its proceedings and decrees within the limited sphere of its jurisdiction;” in Guier v. Kelly, 2 Binney, 293, 298, “The orphans’ court, in matters within their jurisdiction, proceed on the same principles as a court of chancery;” and in Black’s Exrs. v. Black’s Exrs., 34 Pa. 354, 357, and Horner v. Hasbrouck, 41 Pa. 169, 180, “It (the orphans’ court) is possessed of chancery powers, and can proceed, according to chancery practice .... in the administration of its appropriate duties.” But, while in this sense the orphans’ court is a court of equity, the limitations upon its chancery powers are clearly marked. “The chancery jurisdiction is the model, and contains the principles most congenial to this institution, and the legislature have in very many instances sanctioned and enjoined the application of these principles to proceedings in the orphans’ court. . . . The orphans’ court is sometimes called a court of limited jurisdiction. This is true, if regard be had to the derivation of its powers, for it possesses none inherently, and exercises such only as are conferred by or implied from legislation; and it is true also as to the subjects of its jurisdiction, for these are set down in the statutes:” Shollenberger’s Appeal, 21 Pa. 337, 340. This thought was brought out even more strongly in Brinker v. Brinker, 7 Pa. 53, 55, where we said: "Although the orphans’ court has been called a court of equity, in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it. It is a special tribunal for specific cases; and its resemblance to a court of equity consists in its practice of proceeding by petition and answer containing the substance, but not the technical subtleties and nice distinctions of a bill in equity; by which, however, justice is obtained more conveniently and as certainly as in courts of equity, purely so-called. . . . The orphans’ court .... has.not the general powers of a court of equity. . . .” Finally, in High on Receivers (4th Ed.), sec. 42, we find it stated, "The appointment of receivers being a power pertaining to courts which are vested with chancery jurisdiction, a court of probate powers only cannot appoint a receiver in aid of the collection of the estate of a deceased person. And since a probate court has no power to appoint a receiver, an action by a receiver thus appointed cannot be maintained;” and in Anderson’s Law Dictionary, 815, a "probate court” is defined as, “A court exercising jurisdiction over the estates of deceased persons, possessing, as to personal assets, nearly all the powers formerly exercised by the courts of chancery and the Ecclesiastical Courts of England. . . . Other names are ‘orphans’ and ‘surrogate’ courts.” We conclude that the orphans’ court had no power to appoint the plaintiff a receiver or to authorize him as such to bring this action of ejectment.

It appears by the petition for the appointment of the receiver that the plaintiff was then, and presumably still is, the administrator c. t. a. of the estate of John Loughran, deceased. The will of the decedent authorizes, empowers and directs his executor to sell, transfer and convey his real estate. “The will gives the executor the power to sell the real estate in question. By operation of the Act of February 24, 1834, P. L. 70, the executors took the estate in the land as fully as if it had been devised to them to be sold. They may, therefore, maintain ejectment to recover the possession:” Chew’s Exrs. v. Chew, 28 Pa. 17, 20. Also see Kirk v. Carr, 54 Pa. 285, 288, 289. “The administrator c. t. a. had all the rights that would have been possessed by the executor named in the will:” Sears v. Scranton Trust Co., 228 Pa. 126,135. Since the original executor had the right to institute the ejectment, the plaintiff could have brought the action as administrator c. t. a., and there was no necessity for the appointment of a receiver for that purpose.

In view of the fact that the administrator c. t. a. and the receiver are in point of fact the same individual, can the record be amended? Although a change of parties which involves a change of the cause of action is not within the province of amendments (Wildermuth v. Long, 196 Pa. 541; Garman v. Glass, 197 Pa. 101), they may be allowed in the substitution of parties plaintiff where a change in the cause of action is not involved; and, in such instances, amendments may be permitted where the proper individual is on the record as plaintiff but is erroneously designated as to the capacity in which he has a right to sue: Clifford v. Prudential Life Ins. Co., 161 Pa. 257; Jamison v. Capron, 95 Pa. 15. On this subject also see Adams v. Edwards, 115 Pa. 211. Here, the plaintiff, if he should recover by showing a right of possession against the defendant, would hold the property for whomsoever entitled, no matter whether the plaintiff be designated as receiver or as administrator c. t. a. (Warden v. Eichbaum, 14 Pa. 121, 127); and, inasmuch as the statute of limitations has not run, there can be no objection to an amendment in this respect when the record is returned to the court below.

While we take the view that the plaintiff might have brought this action of ejectment as administrator c. t. a., we do not wish to be understood as expressing any opinion upon his right to recover in that or any other capacity; we only decide such questions as are properly raised by the assignments of error, which we will now proceed to consider.

Clause e, sec. 5, of the Act of May 23, 1887, P. L. 158, would not exclude the testimony of the defendant. The other party to “the thing or contract in action,” viz., the title conveyed to the defendant, was not John Loughran or his estate, but Bridget Loughran, a life tenant with the right to consume; and although the latter was dead, her right had not passed to any party on the record, and the litigation was not against her estate or anyone representing her estate. Again, the testimony was not as to anything that occurred in the lifetime of John Loughran or between him and the defendant, but as to matters which took place after his death between his widow and the defendant. The first assignment of error is overruled.

The court below fell into error when it declined to allow the plaintiff to prove the value of the property or the value of the defendant’s services as a nurse. Neither one of these values would have been conclusive upon any of the issues involved in a proper determination of the case, but both of them were evidence to assist the jury in passing upon the issue as to the good faith of the transaction depended upon by the defendant, viz., the alienation of the property for the maintenance and support of Bridget Loughran and the consideration paid by the defendant for the conveyance. From this standpoint the testimony concerning the wages which the defendant had been previously earning was of importance beyond the mere effect it might have had upon the question of her credibility as a witness. The second, third, and eighth assignments are sustained.

The fourth, fifth, and seventh specifications of error were not pressed by counsel for the appellant, and it is sufficient to say that we see no merit in any of them; these assignments are all overruled.

The testimony offered to show an alleged attempt to suborn one of the plaintiff’s witnesses should have been admitted, under the principles laid down in McHugh v. McHugh, 186 Pa. 197, and Com. v. Brown, 23 Pa. Superior Ct. 470, 502. The sixth assignment is sustained.

The issue suggested in the tenth specification of error was properly submitted to the jury; the assignment is overruled.

We see no error in the affirmance of the defendant’s point covered by the eleventh specification; particularly is this so when we consider the elaboration in the general charge of the plaintiff’s side of all the matters referred to in the point in question. The eleventh assignment is overruled.

The case was placed before the jury in a thoughtful and careful charge in which the governing principles of law, as laid down in Tyson’s Est., 191 Pa. 218, 226, were properly stated, and the will of John Loughran was correctly construed, so far as essential to a determination of the questions involved; the issues were for the jury, and we cannot say that the evidence was insufficient to justify their submission, or to sustain the verdict. The ninth, twelfth, and thirteenth assignments are overruled.

For the reasons hereinbefore stated the judgment of the court below is reversed with a venire facias de novo.