author: Per Curiam,

text:
    Houston v. Central Board of Education of Pittsburg, Appellant.

      School law — Central Board of Education of Pittsburg — Salaried commission — Fixing salaries of teachers — Delegation of power — Act of February 12, 1869, P. L. 150.
    The Central Board of Education of Pittsburg has no power under the Act of February 12, 1869, P. L. 150, by which it was created, to appoint a salary commission and delegate to it the power to examine teachers as to their proficiency, and to fix their salaries.
    Argued Nov. 1, 1901.
    Appeal, No. 15, Oct. T., 1901, by-defendant, from decree of O. P. No. 3, Allegheny Co., May T., 1906, No. 183, on bill in equity in case of James W. Houston v. Central Board of Education of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Evans, J., filed the following opinion :
    The plaintiff, a taxpayer of the city of Pittsburg, files this bill against the Central Board of Education of the city of Pittsburg, alleging that in the appointment of a commission known as the teachers’ salary commission, and the maintenance of said commission and the payment of salaries of certain of the teachers of the said districts of the city of Pittsburg, in accordance with the recommendation of said commission, the, defendant has transcended its authority, and asking that it be restrained in the premises.
    FINDINGS OF FACT.
    The facts in this case are not in dispute. There was no testimony taken at the trial of the case, and all the material allegations of the plaintiff’s bill are admitted in the answer, and we have found the undisputed facts in the case by the approval of the requests of the plaintiff for findings of fact, and refer to them and to the bill for the facts in the case.
    CONCLUSIONS OF LAW.
    In the month of December, 1904, the defendant, the Central Board of Education of the city of Pittsburg, by resolution, divided the teachers of the subdistrict schools below the eighth grade into two classes, to be known as class A and class B, and fixed the salary of class A at various amounts, dependent upon the number of years’ experience had by the teacher, making the salary for above seven years’ experience $800 per annum, and fixed the salary of the teachers in class B at $900 per annum. The requisites of enrollment in class B were, first, the teacher shall have taught seven annual terms of ten months each ; second, they shall hold a permanent certificate issued by the state of Pennsylvania; third, they shall be recommended to the commission by the board of directors of the subdistrict in which they are employed at the time of the application, and said recommendation shall have the approval of the principal, and shall be indorsed by a commission known as the teachers’ salary commission upon an investigation and examination made by it. The above is in substance the acts of the defendant which the plaintiff alleges are illegal.
    The defendant is a creature of the legislature, and unless the powers assumed by it in the premises are authorized by the legislature, then it has no right to expend the public money in the furtherance of the object to be obtained by the exercise of these powers. The Act of February 12, 1869, P. L. 150, creating the Central Board of Education of Pittsburg and determining its powers, is very specific, and goes into detail in fixing the powers of the central board, both as respects to the high, school and the subdistrict schools, and the only power or control which the Central Board of Education may exercise with reference to the teachers of the subdistrict schools is found in the twenty-seventh section of the act, which provides, “ That the central board shall have power and authority to determine upon the number of teachers in the subdistrict schools, schools for children of color and professors and teachers in the high school, and to fix and pay the salaries of all of said professors and teachers.” Another section gives it the power to appoint and to dismiss professors and teachers in the high school, but as to the subdistrict schools this authority is given to the local board.
    It is under the power to fix and pay the salaries of the teachers of the subdistrict schools that the Central Board of Education assumes to maintain the salary commission. The salary commission was appointed by a resolution of the Central Board of Education in the month of December, 1904, and the paragraph which embodies the real work of that commission is as follows : “ The commission shall have the following powers and duties : “ (b) to conduct such investigation at such times and in such manner as may be decided by the commission, and as may be deemed necessary that a just conclusion may be reached on the proficiency and progressive spirit of the applicant in her profession.” It will be observed that there is no standard fixed by the school board, the attainment of which will determine the question of the salary to be paid to the teacher. There is no direction as to the manner in which the examination of the teacher, in order to determine her proficiency and progressive spirit, is to be conducted. The entire matter is left to the discretion of the commission created by the Central Board of Education, without a rule to guide them or to bind them, and the report of the commission is final and conclusive both upon the applicant and the central board.
    Paragraph (c) of the powers of the commission is, “ To report to the various sub-district boards from whose corps of teachers applications have been received the names of the teachers who have been enrolled in Class B ; ” paragraph (d), “ To report to the Secretary of the Central Board of Education before the 15th of September in each year the names of such teachers as have been enrolled in Class B during the year.” It will be observed that the commission enrolls the teachers in class B and class A without reference to the will of the local board or of the central board, without consulting either, and simply reports the result of its conclusion to those boards. The fixing of the salaries of teachers on the basis of the report of this commission is certainty the fixing of those salaries by proxy, which was condemned by the Supreme Court of our state in Delano Land Company’s Appeal, 103 Pa. 341. Mr. Justice Tkukkey, in delivering the opinion of the court, said: “ Doubtless the directors believed it for the interest of the district to employ Noonan to perform many of their own duties, and some of the duties of the county superintendent, in relation to the fifteen schools widely scattered over a large township. The directors honestly arranged to supervise, grade and visit the schools by proxy. But their good faith does not stand as authority for employing a superintendent for the district. The provisions of the law may be inadequate to the needs of the district because the county superintendent has too much to do, and the directors are indisposed to. do all that is required of them. If so, the power that made the law alone can remedy its defects.” We think the decision of that case governs this one. The power to fix the salaries is in the Central Board of Education. It has a discretion which must be exercised by it and cannot be delegated to a commission, and the payment of salaries to this commission and the expenses of its maintenance and operation and the payment of salaries based upon the report made by it, are without the power of the central board and contrary to law. To the board of directors of the subdistrict schools is given the power to elect the teachers, to supervise their conduct during their incumbency, and to discharge them for reasons specified in the act of assembly. Necessarily connected with these powers is the duty to pass upon their qualifications as teachers before their election, the efficiency of their work during their incumbency and their term of service in the subdistrict schools. All these are given necessarily to the directors of the subdistrict schools; none of them are given to the Central Board of Education. If we then give to the Central Board of Education power to fix the salary dependent upon its judgment of the qualifications of the individual teachers, we take away from the directors of the sub-district schools the gist of their supervision over the individual teachers and their determination of their qualifications and efficiency. Of what good would be the power to elect a teacher by the directors of the subdistrict schools if the Central Board of Education might determine that that teacher was unfit for the position and fix her salary at such an inadequate amount that she could not afford to accept the position?
    It was not intended by the legislature that the power to fix the salaries of the teachers of the subdistrict schools should thus interfere with the powers and duties of the subdistrict board; but the evident intention is to fix such a schedule of salaries that the directors of the various subdistricts may know from their examination of the qualifications of the teacher, her experience, her probable efficiency in the school, the position to which they would elect her, the exact salary which she shall get upon the assumption of- her duties. And this is the interpretation which the Central Board of Education has placed upon the authority given it to fix salaries from its creation up until December, 1904, and it was in pursuance of this interpretation of the act of assembly that it fixed the salaries of the teachers of the subdistrict schools.

      1. The plaintiff has standing to maintain this bill.
    2. The creation and maintenance of the commission known as the teachers’ salary commission by the defendant is without authority of law.
    3. The payment of salaries and expenses of said commission by the defendant was unlawful.
    4. The fixing of the salaries by the defendant of the teachers of the subdistrict schools below the eighth grade and above seven years’ experience, in accordance with the resolution of December, 1904, was not an exercise of the power given to it to fix the salaries of the teachers of the subdistrict schools, and was therefore unlawful and void.
    DECREE.
    And now, September 22,1900, this cause came on to be further heard at this term, and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:
    1. The teachers’ salary commission referred to in the bill in this case is illegal, and has no legal right to exercise the powers purporting to be conferred upon it under the resolution adopted by the defendant and referred to in said bill.
    2. The defendant, the Central Board of Education of the city of Pittsburg, its officers, members and agents, are hereby enjoined and restrained from paying out any funds by way of salary, expense, or otherwise, to the members of, or on account of, said teachers’ salary commission.
    3. The defendant, and the members thereof, are hereby ordered to resume and exercise the power and duty of fixing the salaries of teachers of the subdistrict schools of the city of Pittsburg, in accordance with the statute in such case made and provided.

      Error assigned was the decree of the court, quoting it.

      W. B. Rodgers, with him W. J. Brennen, for appellant.
    The appointment of the commission and the fixing of its powers and duties was not an unlawful delegation of power on the part of the central board : Locke’s App., 72 Pa. 491 ; Moers v. Reading, 21 Pa. 188 ; Georgia R. R. Co. v. Smith, 70 Ga. 694 ; McGonnell’s License, 209 Pa. 327.

      M. W. Aeheson, Jr., of Patterson, Sterrett & Aeheson, with him Andrew Q. Smith and Charles P. C. Arensherg, for appellee.
    The plaintiff has a standing to maintain this bill: Delano Land Co.’s App., 103 Pa. 347 ; Bender v. School Directors of Manor Twp., 182 Pa. 251 ; Hysong v. Gallitzin Borough School Dist., 164 Pa. 629 ; Wharton v. School Directors of Cass Twp., 42 Pa. 358.
    The defendant itself lacks the power to do the things which it undertook to authorize its creature, the commission, to do : Com. v. Paine, 207 Pa. 45 ; Price v. Lancaster County, 189 Pa. 95.
    If the defendant has the power claimed, then such power is discretionary and cannot be delegated: Mercer County v. Pittsburg, etc., R. R. Co., 27 Pa. 389 ; Delano Land Co.’s App., 103 Pa. 347.
    The commission in any event would have to serve gratuitously : Delano Land Co.’s App., 103 Pa. 347 ; Ford v. Kendall Boro. School Dist., 121 Pa. 543 ; Erie School Dist. v. Fuess, 98 Pa. 600 ; Briegel v. Philadelphia, 135 Pa. 451.
    January 6, 1908 :
   Per Curiam,

The decree entered in this case is affirmed on the findings of fact and conclusions of law by the learned judge of the common pleas.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Federal National Bank v. Cross Creek & Pittsburg Coal Company, Appellant.

      Affidavit of defense — Promissory notes — Discount—Banks and banking —Practice, C. P.

    The agent of a corporation has no implied authority to bind the corporation by an accommodation indorsement.
    Where, in an action by a bank against a corporation on promissory notes on which the defendant’s name appeared as fourth indorser and in no other connection, the statement of claim avers that the notes were discounted by the plaintiff before maturity, and that the proceeds went to the parties to the notes, an affidavit of defense is sufficient to prevent judgment, which avers that the defendant’s name on the notes was only by way of accommodation indorsement, that the indorsement was the unauthorized act of defendant’s manager, and that the defendant never received any benefit or advantage from the discounting of the notes.
    Argued Nov. 1, 1907.
    Appeal, No. 99, Oct. T., 1907, by defendant, from order of C. P. No. 3, Alleghenj’' Co., Feb. T., 1907, No. 541, making absolute rule for judgment for want of a sufficient affidavit of defense in case of The Federal National Bank v. The Cross Creek & Pittsburg Coal Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on promissory notes.
    The opinion of the Supreme Court states the case.

      Error, assigned ivas in making absolute rule for judgment for want of a sufficient affidavit of defense.

      M. J. Eosac/c, of Eosack, Knox & Eosaolc, for appellant.
    The indorsement was invalid as the unauthorized act of the manager: Ry. Equipment & Pub. Co. v. Lincoln Nat. Bank, 82 Hun, 8 (31 N. Y. Supp. 44); Merchants’ Nat. Bank of Chicago v. Detroit Knitting & Corset Works, 68 Mich. 620 (36 N. W. Repr. 696); Helena Nat. Bank v. Rocky Mountain Tel. Co., 20 Montana, 379 (51 Pac. Repr. 829); New York Iron Mine Co. v. First Nat. Bank of Negaunee, 39 Mich. 650 ; Davis v. Rockingham Investment Co., 89 Va. 290 (15 S. E. Repr. 547); Worthington v. Ry. Co., 195 Pa. 211 ; Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Carney v. Duniway, 35 Oregon, 131 (57 Pac. Repr. 192); M. V. Monarch Co. v. Farmers’, etc., Bank, 105 Ky. 430 (49 S. W. Repr. 317).
    The plaintiff has not averred such facts as are necessary to establish its claim against the indorser of a promissory note, so as to make out a case for the jury : Peale v. Addicks, 174 Pa. 543.

      Stephen Stone, with him Wm. A. Stone, for appellee.
    January 6, 1908 :
   Opinion by

Mr. Justice Stewart,

If the affidavit of defense in this case is somewhat lacking in precision and exactness, quite as much can be said of the plaintiff’s statement. The action was on two promissory notes, on each of which defendant’s name appears as fourth indorser and in no other connection. Plaintiff in its statement avers that it discounted these notes in the ordinary and regular course of its business before maturity, and that the proceeds “ were duly had and received by the parties to said notes.” But what parties ? The notes on their faces are what are ordinarily denominated business paper, and presumably they would be the property of the holder, the defendant company. If discounted in the regular course of business the proceeds would belong, not to the parties to the notes, but to the holder or last indorser. The statement that the bank paid the proceeds to the parties to the notes, at least weakens, if it does not overcome, the presumption that the bank is a holder in due course. The affidavit of defense makes 'specific denial that the defendant received any benefit or advantage from the discounting of the notes, and avers that defendant’s name appears on the notes by way of accommodation indorsement simply, and that by the unauthorized act of the manager of the company. In view of the indefiniteness of plaintiff’s statement as to whom defendant paid the proceeds,-and the fact that plaintiff must be held to know that an agent of a corporation has no implied authority to bind the corporation by an accommodation indorsement, we think the facts set up in the affidavit were sufficient to prevent judgment. It was adjudged insufficient on the ground that defendant did not in terms deny that the plaintiff was a holder in due course. While it does not expressly deny this, it sets out facts and circumstances which are so wholly inconsistent with it as to constitute a virtual and substantial contradiction. Because of the indefiniteness in the statement of claim which we have pointed out, the case is not one which calls for rejection of the affidavit for want of that precision which in ordinary cases the plaintiff has a right to expect and require.

Judgment reversed and a procedendo awarded.


text:
    United States Tube and Iron Company, Appellant, v. Maryland Casualty Company.

      Insurance — Policy of indemnity — Satisfaction of judgment — Premature action.

    Where a policy of indemnity contains a provision that no action shall lie against the indemnifying company, unless it shall be brought by the insured himself to reimburse him for loss actually sustained, and paid by him in satisfaction of a judgment within sixty days from the date of such judgment, an action brought two days before the satisfaction of a judgment against the plaintiff, is prematurely brought, and the plaintiff cannot recover therein.
    Argued Nov. 1, 1907.
    Appeal, No. 101, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 366, for defendant non obstante veredicto in case of the United States Tube and Iron Company v. Maryland Casualty Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of indemnity.
    At the trial it appeared .that a policy of insurance, indemni-. fying the assured against liability for injuries to employees, provided that no action should lie against the instfrance company unless brought within sixty days, after final judgment against the assured and payment and satisfaction of the same upon the record. Judgment was entered against the assured (the plaintiff and appellant in this action), on December 8, 1904. On February 4,1905, and within sixty days from the date of the judgment, suit was brought by the assured against the insurance company, and on February 6, 1905, the judgment satisfied on the record. The court on a reserved question held that the suit was prematurely brought, and for that reason directed judgment to be entered for the defendant.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      A. C. Johnston, with him John F. Cox, for appellant.

      O. P. Metcalf,\ with him William M. Hall, for appellee.
    January 6, 1908 :
   Per Curiam,

Judgment was properly entered for the defendant non obstante veredicto for the reason that no cause of action had arisen at the time tbe writ was issued. The policy of indemnity contains a provision that no action shall lie against the company as respects any loss under it unless it shall be brought by the insured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment. This action was brought two days before the satisfaction of the judgment obtained in an action against the plaintiff, and it was prematurely brought.

The judgment is affirmed.


text:
    Kaselicska v. Pittsburg Railways Company, Appellant.

      Negligence — "Stop, look and listen” — Street raihoays.

    In an action against a street railway company to recover damages for personal injuries by being struck by a car at a crossing, the case is for the jury where there is testimony that the street was dark, that the curtains of the car- were down, that there was no headlight, that the car could not be seen at the point where it was the plaintiff’s duty to look, and that it could not be heard because of the noise of trains and mills in the immediate vicinity; and-this is the case, although the weight of the testimony was that the plaintiff stepped in front of a moving car which he saw or could have seen by the exercise of reasonable care.
    Argued Nov. 1, 1907.
    Appeal, No. 104, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 485, on verdict for plaintiff in case of John Kaselicska v. Pittsburg Railways Company.
    Before Pell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries.
    Before Macearlane, J.
    Yerdict and judgment for plaintiff for $5,347. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Clarence Burleigh, with him James C. Cray and 'WilUam A. Challener, for appellant.

      Body P. Marshall, with him Thomas M. Marshall, J. D. Ilern and W. H. Leahy, for appellee.
    January 6, 1908 :
   Per Curiam,

On the decisive question in this case the weight of the testimony was undoubtedly with the -defendant and the more reasonable conclusion from a fair consideration of it is that the plaintiff stepped in front of a moving car which he saw or could have seen by the exercise of the reasonable care which the law exacts of one about to cross the tracks of a street railway. But there was testimony that the street was dark and that the curtains of the car were down; that there was no headlight and the car could not be seen at the point where it was the plaintiff’s duty to look, and that it could not be heard because of the noise of trains and mills in the immediate vicinity. This testimony carried the case to the jury. The rule stated in Carroll v. Penna. Railroad Co., 12 W. N. C. 348, is from its nature applicable only to clear cases where there is no reasonable doubt of the facts or the inferences to be drawn from them: Doyle v. Traction Co., 214 Pa. 382.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Pennsylvania Railroad Company v. Edgewood Borough, Appellant.

      Boroughs — Eminent domain — Streets—Railroads.
    When a borough by virtue of the power of eminent domain appropriates a strip of land belonging to a railroad company for use as a public street it acquires every right and assumes every burden, enjoyed or borne by the municipality in the appropriation of land for street purposes from a private owner; and it is immaterial in such a case whether the railroad company has a fee simple estate, a base or qualified fee, or a mere easement in the land.
    If a strip of land belonging to a railroad company and condemned by a borough for a public street includes a culvert built by the company, it is the duty of the borough after it has taken the land to repair the old culvert, or, if necessary and convenient, construct a new one.
    Argued Nov. 1, 1907.
    Appeal, No. 108, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 962, for plaintiff on case stated in suit of Pennsylvania Railroad Company v. Edgewood Borough.
    Before Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine liability for the repair of a culvert.
    Before Shafer, J.
    The case stated was as follows :
    1. The Pennsylvania Railroad Company acquired certain land in what is now the borough of Edgewood from James Kelley, by virtue of his grant under date of May 20, 1847, of which grant a copy is hereto attached and made part hereof. Said company thereupon constructed its railroad on said land, with necessary slopes, the slope on the west side extending out from said sixty-six foot width, a distance of eighty-four feet.
    2. The railroad company, at the time of constructing said railroad, constructed underneath said railroad and slopes a culvert for the waters of a natural water course.
    3. The borough of Edgewood recently, under its power of eminent domain, lawfully appropriated, so far as necessary for use as a forty foot public street, the said land of the railroad company west of said sixty-six foot width, the said street being located on the slope on the west side of said sixty-six foot width, parallel thereto and immediately abutting thereon. The said street has been graded, as appears on a blue print plan hereto attached and made part hereof, and otherwise im proved for public use.
    4. It is admitted, for the purposes of-this suit, that the culvert so constructed by the railroad company as set forth in second paragraph has become inadequate and must be enlarged in accordance with the plans agreed upon by the parties hereto, and that the cost of enlarging that portion of said culvert between the said sixty-six foot width and a point eighty-four feet westwardly therefrom will be $3,360.
    5. For the purposes of this suit, the parties hereto concede that it is the duty of one or the other of them to bear the expense of enlarging said portion of said culvert. The railroad company is enlarging that portion of the culvert underneath the said sixty7six foot width and underneath the eastern slope, and also underneath the said western slope, the part in controversy. The borough of Edgewood, however, has promised and agreed to pay to the said the Pennsylvania Railroad Company the said sum of $8,360 for enlarging said eighty-four feet of said culvert, if, in point of law, the Pennsylvania Railroad Company is not under duty to enlarge the same, or to bear the expense thereof.
    If the court be of the opinion that the Pennsylvania Railroad Company is not under duty to enlarge said culvert at said point, or to bear the expense thereof, then judgment to be entered for the said the Pennsylvania Railroad Company and against the said the borough of Edgewood for the sum of $3,360; but, if not, then judgment,to be rendered for the defendant; the costs to follow judgment, and either party to have the right of appeal to the Supreme Court.

      Error assigned was in entering judgment for plaintiff on case stated.

      George J. Shaffer, for appellant.
    Under the deed from Kelly, and by the subsequent construction of the railroad and the use and occupation of the ground for a period of more than fifty years, the plaintiff has a fee in the land, and not a mere easement, nor even a base fee: Ebe’s App., 10 Pa. Dist. Rep. 367 ; Grifiitts v. Cope, 17 Pa. 96 ; Brendle v. German Reformed Congregation, 33 Pa. 415 ; Wilkes-Barre v. Wyoming Historical, etc., Society, 134 Pa. 616 ; Petition of Sellers M. E. Church, 139 Pa. 61 ; Funck’s Estate, 16 Pa. Superior Ct. 434.
    Defendant title is a mere easement in the land.
    The owner of the fee cannot compel the owner of the easement to renew or repair a structure constituting an integral part of the land condemned, built by the fee owner many years before the creation of the easement, absolutely necessary to the beneficial enjoyment of the fee, and which structure and the enjoyment thereof is in no manner affected by the creation or existence of the easement: Perley v. Chandler, 6 Mass. 453 ; Stealing’s App., 111 Pa. 35; Lowell v. Proprietors of Locks & Canals, 104 Mass. 18 ; Richardson v. Bigelow, 81 Mass. 154 ; Fick v. Penna. R. R. Co., 157 Pa. 622.

      James R. Miller, with him Patterson, Sterrelt & Acheson, for appellee:
    Koch v. D., L. & W. R. R. Co., 53 N. J. L. 256 (21 Atl. Repr. 284).
    January 6, 1908 :
   Opinion by

Mr. Justice Elkin,

It is immaterial in the decision of this casé whether the conveyance from Kelly vested in the railroad company a fee simple estate, a base or qualified fee, or a mere easement. When the borough by virtue of the power of eminent domain appropriated the strip of land in question for use as a public street, it acquired every right and assumed every burden, enjoyed or borne by a municipality in the appropriation of land for street purposes from a private owner. The fact that the railroad company ivas the owner in no way differentiates the case in principle from that of an individual owner of land so appropriated. If Kelly had conveyed to an individual, and not to a corporation, and the borough had appropriated the land of the individual for street purposes, as it has that of a corporation in this instance, the question of what character of title the individual held could not be raised for the purpose of casting on the owner of the land the duty of caring for a natural water course through, under or over the public streets. This duty rests on the borough and not on the private corporation, or individual, whose lands have been appropriated for a public use. By the taking, the surface as well as everything above and below the same, necessary to the complete enjoyment of the public use, was acquired by the borough. It could construct drains, sewers, conduits and culverts underneath the surface, and when so constructed it became the duty of the borough to maintain and repair the same. In the case at bar the appropriation of the strip of land included the culvert, which provided for the flow of a natural water course, and after the taking it was the duty of the borough to maintain and repair the old one, or if necessary or convenient, construct a new one: Snively v. Washington Township, 218 Pa. 249. The learned court below was clearly right in the conclusion reached and we fully concur in his opinion.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Armstrong et al., Appellants, v. Espy et al.

      Equity — Equity practice — Interlocutory decree — Demurrer—Appeals.
    A decreo in equity “ demurrer sustained,” is an interlocutory and not a final one, and no appeal lies from it.
    Argued Nov. 1, 1907.
    Appeal, No. 112, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1906, No. 33, on bill in equity in case of J. N. Armstrong et al. v. J. S. Espy et al.
    Before Full, Bkown, Mestkezat, Pottek, Elkin and Stewakt, JJ.
    Appeal quashed.
    Bill in equity for an account.
    The court entered the following order :
    “April 30, 1907, on Argument List, and demurrer sustained.”

      Error assigned was the decree of the court, quoting it.

      Ilarney A. Miller, with him ü. G. Vogan, for appellants.

      John liebman, Jr., with him J. W. 'Kinnear and J. I). Brown, for appellees.
    January 6, 1908 :
   Opinion by

Mr. Justice Brown,

There is no final decree in this case. Appellants’ bill was demurred to by the appellees and the demurrer was sustained. The order appealed from is simply, “Demurrer sustained.” The court below may have intended to dismiss the bill, but did not do so; or it may have withheld such decree to allow the plaintiffs to move to amend their bill under equity rule 35. Be this as it may, there is no final decree before us. The bill is still pending below, and, until there is a final decree upon it, denying the appellants the relief sought, we cannot hear them.

Appeal quashed.


author: Mr. Justice Fell,

text:
    Hollis v. United States Glass Company, Appellant.

      Negligence — Master and servant — Explosion of boiler.

    In an action against an employer to recover damages for the death of an employee, caused by the explosion of a boiler, the case is for the jury where there is testimony tending to show that both the general manager of the defendant’s works and the superintendent of the factory where the accident happened, had cause to know, notwithstanding the reports of inspection, that the boiler was unsafe.

      Negligence — Improper remarks of counsel — Reference to insurance against employer’s liability.

    The bringing to the attention of the jury the fact that the defendant in an action for personal injuries, is insured by an employers’ liability company, is cause for reversal of a judgment, whether done by the admission of testimony, or the statement of counsel, or the offers of proofs, or by questions asked witnesses or jurors.
    Argued Nov. 1, 1907.
    Appeal, No. 118, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1905, No. 1,185, on verdict for plaintiff in case of Margaret A. M. Hollis v. United States Glass Company.
    Before Fell, Beown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Be versed.

      Trespass to recover damages for the death of plaintiff’s husband.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $4,500. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant, and (2) in refusing to withdraw a juror and continue the case because of the remarks of plaintiff’s counsel quoted in the opinion of the Supreme Court.

      William M. Hall, with him O. P. Metcalf, for appellant.
    The law is well settled that it is improper to show, in an action of negligence, that the defendant is insured against loss in case of recovery against it on account, of its negligence: Lassig v. Barsky, 87 N. Y. Supp. 425 ; George A. Fuller Co. v. Darragh, 101 Ill. App. 664 ; Lone Star Brewing Co. v. Voith, 84 S. W. Repr. 1100.

      Body P. Marshall, with him Thomas M. Marshall and Robert G. Woodside, for appellee.
    January 6, 1908 :
   Opinion by

Mr. Justice Fell,

It has been earnestly argued by the learned counsel for the appellant that the case should have been withdrawn from the jury because there was a failure to prove that the defendant had not done all that was required of it to make the place of work safe, according to the usage and custom of the business in which it was engaged, and because the plaintiff’s husband assumed an obvious risk connected with his work and arising from it, of which he had full knowledge. A careful examination of the testimony leads us to the conclusion that this contention cannot be sustained on either ground. There was testimony tending to show that both the general manager of the defendant’s works and the superintendent of the factory where the accident happened, had causa to know, notwithstanding the reports of inspection, that the boiler was unsafe. And it was not so clearly shown that the plaintiff’s husband had charge of the boiler, and had knowledge of its condition, that the court could have considered this as established by the testimony.

The second assignment of error, however, calls for a reversal of the judgment. In addressing the jury the plaintiff’s counsel said : “ It is nothing to the glass company what this verdict should be; it is the insurance company that will pay the verdict. It is the fact that the president of the United States is advocating the abolition of this kind of insurance, because Lhe existence of this kind of insurance is against public policy because it leads to a neglect of their duties by the employers. Remember, this company does not pay the verdict. Mr. Anderson has no interest in this case. The only man who has an interest in this case is Mr. Rodgers.”

This was an invitation to find a verdict on false grounds, and it is open to the objections named in the opinion in Saxton v. Pittsburg Railways Co., 219 Pa. 492. In Walsh v. Wilkes-Barre, 215 Pa. 226, the judgment was reversed in an action to recover damages for injury sustained on a defective sidewalk, because of the statement of counsel in addressing the jury that the lot owner is finally liable and the Lehigh & Wilkes-Barre Coal Company owns the lot.” It has been repeatedly held in other jurisdictions that the bringing to the attention of the jury the fact that the defendant in an action for personal injuries was insured by an employers’ liability company was cause for reversal, whether done by the admission of testimony or the statement of counsel, or the offers of proofs, or by questions asked witnesses or jurors. In Manigold v. Traction Co., 81 N. Y. App. Div. 381, the judgment was reversed because counsel had asked a witness whether a representative of an insurance company had not tried to effect a settlement of the case, and this although the court had struck out the question and had instructed the jury not to regard what counsel had said in relation to the subject. In Lassig v. Barsky, 87 N. Y. Supp. 425, and Cunningham v. Heidelburger, 95 N. Y. Supp. 554, and Geo. A. Fuller Co. v. Darragh, 101 Ill. App. 664, judgments were reversed because of questions asked in the examination of jurors that were intended to bring out the fact that the defendants were insured against loss.

In Lone Star Brewing Co. v. Voith, 84 S. W. Repr. 1100, there was a reversal of a judgment in an action for personal injuries because of the statement of counsel in argument that loss would fall on an insurance company and not on the defendant. In Fuller Co, v. Darragh, 101 Ill. App. 664, it was said in the opinion of the court in referring to a statement by counsel that the defense was made by a casualty insurance company : “ If this can be done, why may not a jury be told that an action is prosecuted by a corporation created to hunt up and prosecute accident cases, or by an attorney for a contingent fee, and that one-half of -any verdict rendered for the plaintiff will go to such corporation or such attorney %

In determining whether there was actionable negligence and the damages sustained, it cannot be pretended that the fact that the defendant was insured against loss had the slightest bearing. The statement of counsel was improper, and it was prejudicial to the defendant.

The second assignment of error is sustained, and the judgment is reversed with a venire facias de novo.


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    Hermann’s Estate.

      Will — Legacy—Interest on legacy — Life estate — Act of February 24, 1834, P. L. 70.
    Section. 51 of the' Act of February 24, 1834, P. L. 70, relating to interest upon legacies, has application only to legacies paid by an executor; it has no bearing upon legacies directed to be paid by a devisee who has elected to take a devise of land.
    Where a testator gives the rents, issues and profits of his entire estate to his wife for life, and “subject to said life estate” devises a lot of ground to a son, provided the latter pays to testator's other children an amount stated, and it appears that the difference between the amount stated, and the valuation placed upon the lot by the testator was an amount which would equalize the devisee's share with the shares of the other children, interest will not be allowed on the legacies to the other children until after the termination of the life estate of the wife.
    All the surrounding circumstances of the testator — his family, the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will.
    Argued Nov. 14, 1907.
    Appeals, Nos. 209, 210, 211 and 212, Oct. T., 1907, by Flora E. SMllito et al., from decree of
    O. O. Allegheny Co., March T., 1907, No. 149, sustaining exceptions to adjudication in Estate of John A. Hermann, deceased.
    Before Mitchell, C. J., Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining exceptions to adjudication and directing that the interest on the legacies should be payable from the date of the widow’s death.

      W. N. S. Thompson, with him J. L. Bitehey and Frank Thompson, for appellants.
    The devisee had a right to accept the devise of this remainder subject to the burden imposed thereon by the testator, or he had a right to reject it. He cliose to accept. Immediately upon its acceptance, a personal liability was created to pay the. legacies and the land also became bound for its payment: Hoover v. Hoover, 5 Pa. 351 ; Lobach’s Case, 6 Watts, 167.
    Interest began to run from a year following testator’s death: Maxwell v. Wettenhall, 2 Peere William’s Rep. 26 ; Hertford v. Lowther, 9 Beavan, 266 ; Davies v. Davies, Daniell’s Rep. 84 ; Freeman v. Simpson, 6 Simons, 75 ; Lynch’s App., 12 W. N. C. 104 ; Jones’s App., 3 Grant’s Cases, 169; Koon’s App., 113 Pa. 621 ; Bradford v. McConihay, 15 W. Va. 732.

      Charles W. Dahlimger, with him J. M. Stoner, for appellee.
    Interest ran from the date of the widow’s death : Hamilton v. Porter, 63 Pa. 332 ; Trippe v. Frazier, 4 Harris & Johns. 446 ; Lord v. Lord, L. R. 2 Ch. App. Cases, 782 ; Wheeler v. Ruthven, 74 N. Y. 428.
    January 6, 1908 :
   Opinion by

Mr. Justice Brown,

John A. Hermann died December 8, 1897. By the second clause of his will, executed Hovember 24, 1897, he gave the rents, issues and profits of his entire estate to his wife for life. By the third clause, “ subject to said life estate,” he devised to his son, John A. Hermann, the appellee, a lot of ground in thei city of Allegheny, provided the devisee pay to his other children the sum of $18,000, to be divided among them, share and share alike. The widow of the testator died November 18, 1906, when the appellee took possession of the lot devised to him. The sole question raised below and on this appeal is as to the time interest is to be allowed to the six children on their legacies of $3,000 each, which the son, as devisee, is to pay them. His contention, sustained by the court below, is that interest began to run only from the death of the widow —the life tenant of the lot-devised to him, — while that of the appellants is that they ought to be allowed interest from one year after the death of their father.

The court below properly held that section 51 of the Act of February 24, 1834, P. L. 70, has no bearing upon the question raised. That act is one “ relating to executors and administrators,” and, reading it through, it is clear that legacies which, under the 51st section, are to become due and payable at the expiration of one year from the death of the testator are those payable by an executor. The section iinmediately preceding gives a right of action to a legatee against an executor for the recovery of a legacy after it becomes due, and the one following provides that demand must be made by the legatee upon the executor for payment before suit is brought. All that was intended by the 51st section was to fix the time when a legacy becomes due if no time for its payment is fixed by the testator. With the legacies given to these appellants the executors of the testator had nothing to do. By .John’s acceptance of the land he and it became liable for their payment and for interest upon them from the time the testator intended they should be paid.

If the devise had given the appellee the right to the possession and enjoyment of the land immediately upon the death of his father, his acceptance of it would have been upon the condition that he immediately pay the legacies. The legatees would not have been compelled to wait for a year. They would have been entitled to their legacies the moment the devisee was entitled to the possession and enjoyment of the land out of which they were to be paid. As soon as he could have enjoyed his devise they could have asked for their legacies. “If one gives a legacy charged upon land which yields rents and profits, and there is no time of payment mentioned in the will, the legacy shall carry interest from the testator’s death, because the land yields profit from that time: ” Maxwell v. Wettenhall, 2 Peere Williams, 26. From the time this land yielded rents and profits to the appellee these legacies carried interest.

In 'Hamilton v. Porter, 68 Pa. 332, the devise was to Hamilton of 100 acres of land, and he was directed to pay $'700 to each of six named persons. Under the devise he was entitled to the possession of the land at' the death of the testator. It was held that the possession of the tenant became his possession, and, in deciding that the legatees were entitled to interest on their legacies from the death of the testator, it was said: “The legacies bear interest also from the time of the acceptance of the devise upon the terms of the will. This grows out of the nature of the liability assumed by the acceptance of the devise. From the time of acceptance in such a case as this, where no clog or condition is imposed upon the possession or enjoyment of the land devised, the devisee’s title takes effect. He is entitled to the immediate possession, unless it is held under an outstanding lease, and.then he is entitled to the rents and issues of the land, as landlord, by the operation of the will. Such sums charged by a testator on the person of his devisee are not pure legacies as those are which the executor must pay, and, therefore, are not within the general rule that legacies are not payable until the end of the year and do not bear interest until then. There is no estate to be settled by the devisee and no reason for delay. As soon as he accepts the devise he assumes the burden, and is also entitled to the profits of the estate he accepts, when not incumbered by the testator by other provisions. Hamilton claimed the possession of the land soon after the testator’s death, and claimed the rent of Buckley, the tenant.” Here the appellant could not have claimed possession of the land immediately after his father’s death, nor at any time thereafter before the life estate of the widow had been spent. The testator “incumbered” it by that estate. The “clog” imposed by him upon the dévisee’s possession of the land and enjoyment of the rents and issues thereof was this prior life estate; and the “condition” of the enjoyment of the devise was that the devisee should wait until that life estate was ended. Not until then could he enjoy his devise, and the only reasonable construction to put upon the clause making it is that the testator intended that he should not pay the price fixed for it until he could enjoy it.

That the testator did not intend any of the bequests to be paid until after the death of the widow seems clear from what immediately follows the devise to John in the same clause of the will. After this devise the testator gave the rest of his estate to all of his children, including John, share arid share alike, and directed that his executors should pay to William F.-$10,000 out of the share given to him, the balance to be held for him in trust. This bequest to William was “ subject to the life estate of the widow,” for all the provisions of the third clause are made subject to it, the language of the testator at the beginning of the clause being, “ Subject to said life estate in my wife as aforesaid I make the following disposition of all my estate, viz.: ” If the legacies of $3,000 to these appellants were payable one year after the death of the testator, because, as they contend, the same are within the words, “ in all cases,” of the 51st section of the act of 1834, the legacy of $10,000 to William F. must have become payable at the same time and he would be entitled to interest from one year from the death of his father; but it can hardly be seriously contended that the testator intended that the legacy to William should be due and payable before the life estate of the widow had ended.

In Koon’s and Wright’s Appeal, 113 Pa. 621, upon which the appellants seem to place great reliance, interest was allowed from one year from the death of the testator, because, in the language of Mr. Justice Gbeex, “ The legacy of $10,000 to the appellee was absolute, without any condition as to its payment, and no time of payment was expressed in the will which gave it. Literally, the case, as to the question of interest, comes directly within the words of the Act of February 24, 1834, sec. 51.” But the same learned justice added: “While we do not say that the mere absence of a limitation of the time of payment shall not of itself alone, regardless of the language of the gift and of all the circumstances attending a given case, suffice to bring the statute into application, we feel bound to say that the reason for not applying it must be of the clearest and most convincing character. There must be language or circumstances apparent upon the face of the will showing that the testator could not have intended the legacy to be payable at the end of the year. This was the case in Earle v. Bellingham, 24 Beav. 448, where the fund out of which alone the legacies were to be paid did not come into existence for the purposes of the legacies until after the death of the life tenant. Substantially the same reason existed in Wheeler v. Ruthven, 74 N. Y. 428.” In Earle v. Bellingham, the testator, John Cooper, who died in 1814, gave £7,000 in trust for his wife for life, and, after her death, to his sister Mary Cooper. She died in 1822, and by her will bequeathed legacies payable out of this fund. The widow of John Cooper survived his sister Mary, the testatrix, thirty-three years. Mary’s legatees claimed interest from her death on the legacies which she had directed to be paid out of her reversionary interest in her brother’s estate, but it was held that the legacies carried interest only from the death of the widow of John Cooper, and not from the death of the testatrix, his sister, the Master of the Rolls saying : “ The right to a legacy and the right to receive it is quite a different thing. The right to a legacy ordinarily accrues on the death of the testator, but the right to receive it does not arise until twelve months after his death. There are many cases in which legacies are vested, but no right to receive them exists until a future period, as at twenty-one, or marriage, and, unless there is a particular relation between the testator and legatee, no interest is payable in the meantime, interest being payable only from the time the legacy is receivable. . . . My opinion is, that the payment of the legacies is postponed until the reversion fell in, and that interest does not' run until the legacies were payable, which was on the death of the widow.” In Wheeler v. Ruthven et al., the testatrix died in 1862, and by her will gave twenty-one general legacies. Tier estate consisted solely of a residuary interest, under the will of her father, in a fund of about, $30,000 and in the undivided half of a house and lot in the city of New York, in both of which his widow and her mother' was, by his will, given'a life interest. The mother survived her daughter, the testatrix, and died in 1874, when the executors of the daughter came into possession of the residuary estate. Interest was claimed by certain of the legatees from the date of the death of the testatrix, but, in disallowing this claim and allowing interest only from the death of' the life tenant, it was said : “ The rule that a legacy is payable one year after the testator’s death only applies in the absence of a direction in the will controlling the general rule established by the courts, or other decisive indication in the instrument, interpreted in the light of the surrounding circumstances of a different intention of the testator. . . . The legacies did not become payable so as to bear interest until the falling in of the life estate of the testatrix’s mother. The will does not in terms refer to the time when the legacies are payable, or direct that they shall be paid with interest. It must be assumed that the testatrix understood the condition of her property, and that until the death of her mother, she or her representatives could have no beneficial enjoyment of her estate, and that meanwhile the life tenant was entitled to the possession and the whole income. When the life estate would terminate was uncertain. It might terminate within a year after the death of the testatrix, or continue, as in fact it did, for several years after that period. There was no fund out of which the legacies could be paid during the lifetime of the mother. . . . The circumstances of the case fairly lead to the inference that the testatrix designed and intended that the legacies should be paid when, by the death of her mother, her estate should vest in possession, and that she did not intend that the legacies should draw interest during the pendency of the life estate, while her estate was earning no interest, and when an allowance of interest might result in depriving a part of her legatees of any benefit under the will.”

While it is true that we must search for the intent of the testator only within the four corners of his will, when we come to consider it and interpret its meaning we must do so in the light of all the circumstances by which he was surrounded when he made it and by which he was probably influenced : Stambaugh’s Estate, 135 Pa. 585. “It has been long and well settled, and indeed it is a principle so.consonant to reason that the only wonder is that it should ever have been questioned, that all the surrounding circumstances of the testator —his famity, the amount and character of his property — may and ought to be taken into consideration in giving a construetion to the provisions of his will: ” Postlethwaite’s Appeal, 68 Pa. 477. A number of witnesses testified that the lot devised was worth, in 1897, when the will was executed, from $18,000 to $21,000. John C. McCombs, Esq., a member of the Allegheny county bar, who wrote it, testified that by a former will the testator had directed that $12,000 be paid by the appellee to the six children, the value which he at that time placed upon the lot having been $14,000 or $15,000, but that he subsequently valued it at $21,000, and, thinking-the heirs’ proportions, outside of John’s, ought to be $18,000, directed him to pay that sum to them. His testimony was: “ He thought the property worth about $20,000 or $21,000, and thought the other heirs ought to have $18,000.” In making the devise of the lot to John, the intention of the testator undoubtedly was to benefit him : Jackson’s Estate, 179 Pa. 77; but, on the valuation placed by the testator himself upon the lot, his son would not only have not derived any benefit from the devise if he had accepted it upon the terms insisted upon by the appellants, but certainly could not have been expected to accept it, for, instead of being a benefit to him, he could neither have sold nor mortgaged it for $18,000 in 1897, subject to the widow’s life estate. How long she might survive her husband no one could foretell. She might live for many years. In fact she did, for nearly nine, and the uncertainty of the duration of her life made the reversion in John of most uncertain value. Certain it is that, upon the testator’s valuation of the land, the legatees could not have been paid out of it at his death, clogged as it was with the widow’s life estate. The decree of the court below gives the appellants all their father manifestly intended they should get from the lot, and it is, therefore, affirmed with costs.


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    Forsyth v. Colonial Trust Company, Appellant.

      Equity — Findings of fact — Evidence—Appeal.
    The findings of fact by the court below in a complicated equity proceeding to the effect that certain bonds were the property of the defendant, will not be set aside in the absence of manifest error, where it appears that the principal parties were dead, that the transactions between them were conducted in a loose and unbusinesslike manner, making it difficult for others than the parties to unravel them, and that the evidence, although meager, was sufficient to sustain the findings.
    Argued Nov. 14, 1907.
    Appeal, No. 214, Oct. T., 1907, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1907, on bill in equity in case of Alberta Forsyth, Executrix of the last Will and Testament of P. J. Forsyth, deceased, v. The Colonial Trust Company, Administrator of the Estate of W. C. Jutte, deceased, and C. Jutte & Company, a corporation.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in équity to adjust the title and ownership of certain bonds.
    Before Shaeer, J.
    From the record it appeared that the bonds were in the custody of O. Jutte & Company, one of the defendants, and were claimed by the plaintiffs. The Colonial Trust Company, administrator, filed an answer to the effect that they did not know whether the bonds belonged to the plaintiffs or not. C. J ntte & Company, the other defendant, answered the bill admitting the possession of the bonds, and their willingness to turn them over either to the plaintiffs, or the other defendant as the court should direct. The court after hearing and argument entered a decree dismissing exceptions to adjudication and directing that the bonds should be delivered to the plaintiffs.

      Error assigned was the decree of the court.

      David A. Reed, of Reed, Smith, Shaw & Beal and A. Leo Weil, with them Charles M. Thorp, for appellant.

      M. W. Aoheson, Jr., of Patterson, Sterrett & Aeheson, for appellee.
    January 6, 1908 :
   Per Curiam,

We do not find in this case anything but questions of fact. The transactions were conducted in such loose and unbusinesslike manner that after the death of the principal parties it is difficult, if indeed it is possible for others to unravel them with entire confidence in the accuracy of the conclusions reached. The findings of the learned judge below are the result of careful examination and while the evidence on which they rest was meager, we cannot say that it was insufficient.

Judgment affirmed.


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    Robitzek, Appellant, v. Daum.

      Malicious prosecution — Probable cause — Belief of prosecutor — Evidence — Province of court and jury.

    To support an action for malicious prosecution the plaintiff must show want of probable cause. While it is exclusively the province of the jury to pass upon the testimony and ascertain the facts, it is the duty of the court to say, as a matter of law, whether the facts established do or do not amount to probable cause. What is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court.
    In an action for malicious prosecution the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of probable cause, based on reasonable grounds. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party is guilty of the offense.
    Argued Nov. 14, 1907.
    Appeal, No. 215, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March Term, 1904, No. 650, on verdict for defendant in case of Louisa Robitzek v. Edward Daum.
    Before Mitchell, O. J., Fell, Bbown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution.
    Before Sweabingen, P. J.
    At the trial it appeared that the plaintiff had been arrested on the information of the defendant for the larceny of two pair of blankets and a pillow. At the trial in the quarter sessions she was acquitted and the costs imposed upon the prosecutor.
    In an opinion refusing a new trial Sweabingen, P. J., stated the facts to be as follows:
    The plaintiff was tenant in a house near that of the defendant. A landlord’s warrant was issued and the plaintiff’s household goods were seized for rent in arrear. On an afternoon, when plaintiff was absent from home, a sale of the property took place, upon said landlord’s warrant. There was no evidence, however, that the plaintiff did not have legal notice of the sale. Among other property which plaintiff had, there was a “ folding bed.” This bed had, inside of it, the usual and ordinary bedclothing. It was bought for and belonged to the folding bed and was part of its furnishings. It was never taken away from the bed, except for airing or washing, and on the day of sale it was inside the folding bed. The said bed and its contents were put up for sale and they were purchased by an outside party, who sold them to the wife of the defendant, to whom they were delivered; and the goods were then removed to the defendant’s house. Afterwards, this bedding, including the pair of blankets and pillow hereinafter mentioned, were put out in the defendant’s yard, for airing, or some such purpose. This yard was near the plaintiff’s house. In fact, there was evidence that the yard was common to the houses of both plaintiff and defendant and to other houses in the same immediate neighborhood. But this was disputed. The plaintiff went to the office" of the constable who had charge of the landlord’s warrant and obtained from someone the following lead pencil memorandum:
    “ Folding bed, $11.00. W. J. Morris.”
    It appeared from the evidence that the sale was not conducted by W. J. Morris, but by Samuel Morris, his brother, who is now decid. There was evidence that the signature to the above paper is not in the handwriting of W. J. Morris, although the plaintiff testified that she obtained the paper from W. J. Morris. Having obtained this paper, the plaintiff, on the following day of the sale, went to the place where this bedding was being aired and carried away a pair of blankets and a pillow.
    When the defendant’s family discovered what plaintiff was doing, they prevented her from taking the remainder of the bedding.
    When the defendant returned home in the evening, he was informed that plaintiff had come to his yard and had taken away this pair of blankets and pillow, and of the circumstances under which this was done. He went before an alderman and made an information, a warrant was issued and plaintiff was arrested. After hearing she was held for court. The grand jury returned an indictment against her for larceny. At the trial she was found not guilty. She then brought this' action for malicious prosecution.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      T. II. Nanis, for appellant,
    cited: Travis v. Smith, 1 Pa. 234 ; Miller v. Hammer, 141 Pa. 196 ; McCarthy v. De Armit, 99 Pa. 63 ; Walbridge v. Pruden, 102 Pa. 1 ; Smith v. Walter, 125 Pa. 453 ; Grohmann v. Kirschman, 168 Pa. 189 ; Ritter v. Ewing, 174 Pa. 341.

      W. G. Negley, for appellee,
    cited: Bernar v. Dunlap, 94 Pa. 329 ; Laughlin v. Clawson, 27 Pa. 328 ; Mitchell v. Logan, 172 Pa. 349 ; Ritter v. Ewing, 174 Pa. 341 ; Kirkpatrick v. Kirkpatrick, 39 Pa. 388 ; Wheeler v. Nesbitt, 65 U. S. 544 ; Beihofer v. Leofert, 159 Pa. 374.
    January 6, 1908 :
   Opinion bt

Mr. Justice Elkin,

To support an action for malicious prosecution the plaintiff must show want of probable cause. While it is exclusively the province of the jury to pass upon the testimony and ascertain the facts, it is the duty of the court to say, as a matter of law, whether the facts established do or do not amount to probable cause. What is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court: Walbridge v. Pruden, 102 Pa. 1; Boyd v. Kerr, 216 Pa. 259. In an action for malicious prosecution the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the belief of the prosecutor in the existence of probable cause, based on reasonable grounds: Mitchell v. Lo-. gan, 112 Pa. 349. The question does not depend upon the actual state of facts in the case, but upon the honest and reasonable belief of the prosecutor : Gilliford v. Windel, 108 Pa. 142. It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused party is guilt}'- of the offense : Ritter v. Ewing, 114 Pa. 341. The learned court below at the conclusion of the testimony directed the jury to return a verdict for defendant because plaintiff had failed to show want of probable cause. A motion for a new trial was filed, and after full consideration was refused on the ground that the undisputed evidence showed probable cause for the institution of the prosecution. It is a close case and not entirely free from doubt, but on the whole we think the conclusion reached by the court below was the correct one. If the defendant, on information received from his wife, believed that the folding bed and its contents, including the blankets and pillow, had been purchased at the sale under proceedings for distress and had been delivered into the possession of his wife, as her or his property ; and that plaintiff had come into his yard and carried away the whole or part of the goods which belonged to him in such a manner as to indicate a suspicion of theft or an intention to” steal, there can be no doubt that within the meaning of the law he had probable cause for making an informa^ tion charging larceny. The probable cause did not depend upon these facts being absolutely true, the test being, did he honestly believe them to be true at the time he made the information and was the belief based on reasonable grounds % "We think the testimony produced at the trial was sufficient to justify the court in holding that under the established facts the defendant acted in the honest belief that plaintiff was guilty of the offense, and that the burden resting upon her in this case to show want of probable cause had not been met.--

Judgment affirmed.