author: Mb. Justice Fell,

text:
    Pioso, Appellant, v. Bitzer.

      Evidence—Parol evidence—Contradiction of written instrument—Two witnesses—Corroborative circumstances.

    Where parties without fraud or mistake have put their engagements in writing, the law declares the-writing not only the best but the only evidence of their agreement. While parol evidence is admissible to prove fraud and mistake, it is insufficient for the purpose unless clear, precise and indubitable. Testimony in contradiction of a written agreement amounts to nothing unless it is sufficient to warrant a chancellor in reforming it.
    A wife executed an assignment of a policy of insurance on her husband’s life. After the death of the husband, the wife denied the validity of her assignment, and an issue was framed between her as plaintiff and the assignee as defendant to determine the ownership of the policy. A notary who was present at the execution, but who was not shown to have been in any way the agent or representative of the assignee, stated that he explained to her that she was transferring her right to the assignee, and that her manner and responses indicated that she fully understood what was being done. A daughter of the plaintiff testified that she was present at the execution of the assignment, and that as her mother could not speak English, she translated to her all the notary said, and told him what her mother said in reply. Neither daughter nor mother, however, were permitted to testify as to what was said between them in German, the notary not understanding that language. Held, that the daughter was the only witness in contradiction of the notary’s clear statement, and of the plain words of the writing, and that the mother could not be made a second witness in the manner proposed.
    In the above case an offer was made to prove that some months after the execution of the assignment the notary called on the plaintiff, and in the presence of her family requested a ratification of the assignment; that when in reading the assignment he came to the name of the assignee, she became excited and angry and said : “ He deceived me before ; if you had read that name to me, I would have known something was wrong, and I would not have signed the paper ; ” that she left the room while the notary was reading, and that he said he was very sorry, and never would forgive himself for what he had done. Held, that the offer was insufficient to establish fraud in procuring the original transfer, and that the words of the notary were not in any way corroborative of the single witness against the validity of the assignment.
    Argued May 18, 1903. Reargued May 17, 1904.
    Appeal, No. 98, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1901, No. 4, on verdict for plaintiff in case of Sarah Pioso v. Martha A. Bitzer, Transferee of Uriah Bitzer.
    Before Mitchell, C. J., Dean, Fell, Potter and .Thompson, JJ., on reargument.
    Affirmed.

      Feigned issue to determine the ownership of a policy of life insurance. Before Landis, J.
    At the trial plaintiff made the following offer:
    The plaintiff offers to prove by Sarah Pioso, the witness on the stand, that she cannot speak or read English and understands but very little of it; that on the day she signed the paper, which Mr. Heitshu had brought to her house, her daughter Bertha called her from the kitchen to the dining room where she found Mr. Heitshu, whom she had not previously known; that Mr. Heitshu said something to her daughter Bertha in English, which she, the witness, did not understand ; that her daughter immediately said to her in German that Mr. Heitshu wished her to tell the witness that he had received the papers from the insurance company and had asked whether she, the witness, wanted the interest of the money. The witness replied to her daughter in German, “ I need no interest, I have the money I need. You can let it stand.” Her daughter Bertha then said something to Mr. Heitshu in English, which the witness did notunderstand; then Mr. Pleitshu said, “ What' your daughter said is true. You can believe that and sign the paper.” Then the witness signed the paper, and that the same was never read to her.
    This to be followed by proof by Bertha Pioso that on the day in question she answered the door bell and admitted Mr. Heitshu, who asked if Mrs. Pioso was in. She conducted him to the dining room and called her mother, Sarah Pioso, from the kitchen to the dining room, and that no one but her mother, Mr. Heitshu and herself were present; that Mr. Heitshu had not come with her father ; that Mr. Heitshu said to her in English that he came up because he had the insurance papers in his possession and the interest was due the mother; he wanted to know whether the mother wanted the interest. The daughter then communicated this in German to her mother, who answered her in German that she was in no need of money now and preferred to let it stand with the principal. That she then translated this to Mr. Heitshu, who said if that was the case she was to sign the papers he had. That he did not read the papers to them, and that she, the witness, should tell her mother that what he had said was the truth, and that she need not fear to sign her name.

      This to be followed by proof by Sarah Pioso, that Sarah Pioso executed the paper C. I. L., No. 6, under the representation, with the understanding and in full reliance upon the statement of E. R. Heitshu, that its effect would be to allow the interest or earnings of the policy to be added to or accrue with the principal; that she never knew she had transferred this policy to Uriah Bitzer until in the fall of 1898, about the time when she was asked by Mr. Heitshu and Newton Bitzer to ratify the assignment.
    This testimony to be followed by proof that in November, 1898, Newton Bitzer, the son and representative of Uriah Bitzer, the transferee, with Mr. Heitshu went to Philadelphia, where Sarah Pioso was then visiting, and attempted through Mr. Heitshu to read the transfer to her; that as soon as he read the name “ Bitzer ” she arose, said, “ You deceived me before; if you had read the name Bitzer to me I would have known something was wrong and I would not have signed the paper.” That she left the room immediately, refusing to allow Mr. Heitshu to finish reading the transfer.
    This to be followed by proof that Mr. Heitshu, the notary public, was not in any manner an agent for the plaintiff, Sarah Pioso.
    Objected to by defendant as incompetent and irrelevant.
    Thé Court: I do not see in this case that the defendant was ever a party to the execution. It has not been shown she was. Mrs. Bitzer was not there. There is no evidence that anybody here represented her there, or Uriah Bitzer either; it is the same thing. As I understand it Mr. Heitshu went up there with Pioso. She says he was not with Pioso. That may all be true. We will give that full force. He was not with Pioso. But there is no evidence he called there as a representative of Bitzer. I do not believe this testimony is admissible. I do not think it is. I think we will have to disallow it at this time.
    Plaintiff excepts.
    Bertha Pioso was asked the following question put by the plaintiff :
    “ Q. State whether or not you faithfully translated and communicated to your mother just what Mr. Heitshu had said, while he was still there.”
    Objected to by defendant.

      The Court: If he did not understand it he would not know. She can answer what she then did, not what she said. We will disallow the question and give you the benefit of an exception. If Mr. Heitshu understood German and understood what she said, we will allow it if you show that.
    Plaintiff excepts. Bill of exceptions signed and sealed. [8]
    “ Q. "Will you please state what reply your mother made to the statement of Mr. Heitshu, which you had translated, and whether or not you faithfully translated that reply to Mr. Heitshu ? ”
    Defendant objects to the first part of that question.
    The Court: That is disallowed, unless Mr. Heitshu understood what the mother said.
    Plaintiff excepts. Bill of exceptions signed and sealed. [4]
    “ Q. Will you state whether or not you faithfully and accurately translated to Mr. Heitshu what your mother said to you in reply to Mr. Heitsliu’s statement ?
    Objected to by defendant.
    The Court: That is disallowed. She can state what she said to Mr. Heitshu. [5]
    ■ “ Q. State whether or not you communicated to your mother what Mr. Heitshu had said.”
    Objected to by defendant.
    “ Q. I am not asking the exact words, but am asking whether she communicated that to her mother.”
    Objected to by defendant, unless it was said in English and Mr. Heitshu understood the English. [6]
    The plaintiff offers to prove by Sarah Pioso, the witness on the stand, that her daughter Bertha, in the presence of Mr. Heitshu and in his hearing, in stating the purpose for which Mr. Heitshu had come to the house, used the German word “ interesse,” which is used for and means in German “ use money,” and that she understood the word in that sense and executed the paper with the statement and a representation that thereby she would not be getting but saving the interest, or dividends, or earnings of the policy, along with the amount of the policy, and that Mr. Heitshu was not her agent in procuring the execution of the paper.
    Objected to by defendant. Disallowed and plaintiff excepts. Bill of exceptions signed and sealed. [7] .

      The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-19) various rulings on evidence, quoting the bill of exceptions; (20) in giving binding instructions for defendant.

      William, H. Keller, of Coyle $ Keller, with him Geisenberger Sf Rosenthal, for appellant,
    cited: Com. of Mass. v. Vose, 17 L. R. A. 813; Camerlin v. Palmer Co., 92 Mass. 539; Baltimore & Ohio R. R. Co. v. Hoge, 34 Pa. 214; Wehrle’s App., 189 Pa. 179; Fabrigas v. Mostyn, 20 Howard St. Tr. 81, 171; Lewis v. Eagle Insurance Co., 76 Mass. 508.

      W. U. Eensel, for appellee, cited:
    Martin v. Berens, 67 Pa. 459; Rowand v. Finney, 96 Pa: 192; Ott v. Oyer, 106 Pa. 6; Phillips v. Meily, 106 Pa. 536; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Dick v. Irlenad, 130 Pa. 299; Irvin v. Irvin, 142 Pa. 271; Van Voorhis v. Rea, 153 Pa. 19; Keller v. B. & O. R. R. Co., 10 Pa. Superior Ct. 240; Harrold v. McDonald, 194 Pa. 359; White v. Black, 14 Pa. Superior Ct. 459; Sutch’s Est., 201 Pa. 305; Hamory v. Sargent & Neale, 25 Pa. C. C. R. 191; Wodock v. Robinson, 148 Pa. 503.
    June 15, 1904:
   Opinion by

Mb. Justice Fell,

This was a feigned issue to determine the ownership of a policy of insurance on the life of Moses Pioso, the plaintiff’s husband, and the right to a fund that had been paid into court by the New York Life Insurance Company after his death. The plaintiff was the beneficiary named in the policy if she survived her husband, and the case turned on the validity of an assignment made by her nearly four years before her husband’s death to one of his creditors. Both husband and wife joined in the assignment, which was “ made as collateral security for the payment of indebtedness to the said Uriah Bitzer, now and hereafter to accrue to him, by reason of his indorsement of the notes of M. Pioso & Sons.” Mr. Bitzer paid three annual premiums that became due after the assignment to him, and he assigned the' policy to his wife, the defendant in the issue, in part payment of a debt largely in excess of the amount of the policy, for money he had borrowed from her to pay the notes lie had indorsed for Pioso & Sons. The specifications of error relate to the refusal of the court to admit certain testimony offered by the plaintiff, and the direction to the jury to find a verdict for the defendant.

The execution and acknowledgment of the writing by the plaintiff were not disputed. The notary who took the acknowledgment testified that Moses .Pioso, the insured, called at his office and acknowledged the assignment, and that they went together to his home; that he there explained to the plaintiff the character of the assignment and told her that she was transferring all her right, title and interest in the policy to Mr. Bitzer; that her manner and her responses indicated that she fully understood what was being done, and that she had expected him to come. The plaintiff attempted to nullify and set the assignment aside onvthe ground of fraud in its procurement. Her daughter, called in her behalf, testified that the notary who took the acknowledgment called at the house alone, asked for her mother, and stated that he had brought papers sent by the insurance company, and that his purpose in calling was to know whether she wanted interest on the money ; that she acted as interpreter, because her mother could not speak English and understood it very imperfectly ; that she translated to her mother all the notary said and told him what her mother said in reply, which was to the effect that she had no need of the money and preferred letting the interest remain with the principal. She was allowed to testify fully as to what took place between her and the notary, what he said to her, and what she said to him in reply in translating for her mother. She was not, however, permitted to state what she had said in German to her mother and what her mother had said in German to her. Nor was the plaintiff allowed to testify to statements she had made in German to her daughter in the presence of the notary who did not understand the language spoken.

This testimony was offered to meet the requirements of the rule that two witnesses or one witness and corroborating circumstances are necessary to warrant the setting aside of a written instrument. The plaintiff’s daughter was acting for her and it was not competent to show what she said to her mother in a language not understood by the notary. The plaintiff did not understand what the' notary said, and she was no more competent to testify to it than if she had not been present. But had this testimony been admissible a second witness could not have been made or corroboration shown in this way. If it be assumed that the notary was the agent of Mr. Bitzer, and of this there is no evidence whatever, the important inquiry relates to what he said at the time. As to this there was only one witness, the plaintiff’s daughter, in contradiction of the notary’s clear statement and of the plain words of the writing. These offers would not, if established, have made out the plaintiff’s case.

The other offers of testimony overruled were to prove that eight months after the assignment of the policy the notary at the instance of the defendant called on the plaintiff for the purpose of obtaining a ratification or re-execution of the assignment ; that when in reading the assignment he came to the name Bitzer she became excited and angry and said: “You deceived me before; if you had read the name Bitzer to me, 1 would have known something was wrong, and I would not have signed the paper; ” that she left the room while the notary was reading, and that he said he was very sorrj- and never would forgive himself for what he had done. These offers were rejected on the ground that the testimony was insufficient to establish fraud in procuring the original transfer. They would have contradicted the testimony of the notary only as to his statement that he had mentioned the name of Mr. Bitzer when explaining the nature of the assignment. But if they had bem contradictory of all that he said and would have overthrown his testimony completely, they would have been unavailing, b - cause the case would have stood with the writing on one sid • and the testimony of a single witness on the other.

Nor would the testimony have had appreciable weight as tending to show an admission by the notary which corroborate 1 the plaintiff’s witness. Unless it was of value as corroboration, it was of no value at all. The circumstances connected wit'the visit of the notary were set out in the offers and ma le part of them. The visit was made after a dispute had aris" concerning the policy. There was nothing clandestine or underhand about it. One of the plaintiff’s sons, at the request of the notary, went with him, and explained the object of the visit. Her husband, her son, three of her daughters, and her son-in-law were in the room. On this visit as in all of his connection with the case the notary appears to have acted with entire fairness, and his expression of regret that he had done anything in the matter was entirely consistent with his honesty of intent and purpose. It is inconceivable that if he had deceived her, he would have gone in the most public manner and in the presence of all of her family and after a dispute had arisen asked her to reaffirm the acknowledgment. The substance of her accusation was not that he had made any misstatement but that he had not read the assignment and that she did not know that Mr. Bitzer was to get the policy, and to this his expression of regret related. This testimony would have been insufficient to raise a suspicion of fraud, much less to sustain it.

The rules of evidence which the court correctly applied in the case have been so repeatedly stated that it is unnecessary to do more than briefly refer to them. Where parties without fraud or mistake have put their engagements in writing, the law declares the writing not only the best but the only evidence of their agreement. While parol evidence is admissible to prove fraud and mistake, it is insufficient for thatpurpose unless clear, precise and indubitable. Testimony in contradiction of a written agreement amounts to nothing unless it is sufficient to warrant a chancellor in reforming it. In Phillips v. Meily, 106 Pa. 536, it was said : “It is only where a chancellor would reform the instrument that parol evidence is admissible to contradict it. It is true, under our practice in Pennsylvania, it is accomplished under common-law forms. But the fact remains that the defense set up is purely equitable, and the judge ought not to submit the case to the jury unless the evidence is such that he would feel himself bound as a chancellor to reform the instrument. With our modification of the English rule, nowtoo firmly imbedded in our system to be disturbed, and our act of assembly which makes every defendant a competent witness, the principle above stated is about all that is left to preserve the sanctity and force of an instrument of writing whether that instrument be a deed, which is the evidence of a man’s title to his home, or an obligation for the payment of money.”

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Miller, Appellant, v. Miller.

      Judgment—Collateral judgment—Opening judgment—Plea—Burden of proof—Payment,

    Where a judgment shown to be collateral in character is opened by agreement for the purpose of determining how much is due thereon, and no plea of payment or other plea is entered or ordered to be entered, the burden of proof is upon the plaintiff to show the primary indebtedness which the judgment was intended to secure. In such a case it is immaterial that a scire facias to revive the judgment had been issued before the judgment was opened, and to that writ a plea of payment had been filed.
    Argued May 17, 1904.
    Appeal, No. 132, Jan. T., 1903, by plaintiff, from order of O. C. Lancaster Co., Nov. T., 1902, No. 21, dismissing exceptions to auditor’s report in case of Henry E. Miller, executor of Hiram K. Miller, deceased, v. Emeline S. Miller, widow and administratrix of Hiram K. Miller, deceased.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of A. F. Hostetter, Esq., auditor.
    The facts appear by the opinion of the Supreme Court.
    Exceptions to the auditor’s report were dismissed by the court.

      Error assigned was the order of the court.

      W. U. Sensei and S. M. North, for appellant.
    The judgment having been opened on terms and a plea of payment having been entered the judgment was in itself evidence of the indebtedness : Collins v. Freas, 77 Pa. 493 ; Pringle v. Pringle, 59 Pa. 281; Lines v. Lines, 142 Pa. 149; Tombaugh v. Tombaugh, 24 Pa. C. C. R. 110; Harris v. Harris, 154 Pa. 501; Sossong v. Rosar, 112 Pa. 197 ; Dennison v. Leech, 9 Pa. 164.

      B. F. Davis, with him A. S. Sershey, for appellee.
    The burden of proof was upon the plaintiff: Clark v. Douglass, 62. Pa. 408; Davis v. Charles, 8 Pa. 82; Susong’s App., 2 Pa. Superior Ct. 611; Hummel’s Est., 161 Pa. 215 ; Gillespie v. Weiss, 8 Pa. Dist. Rep. 170; Howie v. Lewis, 14 Pa. Superior Ct. 232.

      June 15, 1904:
   Opinion by

Mr. Justice Potter,

In the estimation of counsel for the appellant, one of the principal questions involved in this appeal is the effect of a plea of payment, to a judgment opened upon petition, for the purpose of determining the amount due upon it. Of course, if when the judgment was opened, the defendant had pleaded payment, with no other plea, it would have constituted a confession of the cause of action upon which the judgment was entered ; and the record of the judgment would have been prima facie evidence of the right of the plaintiff to recover the amount of the bond. But we do not find from the record that any plea to the judgment; was ever filed. It does appear, and the auditor has found as a fact that the judgment was declared in the court of common pleas to have been fraudulently confessed for the purpose of depriving the widow of her dower rights. But as to the daughter, that verdict was not conclusive. But the record further shows that upon the petition of the daughter and the widow, setting forth that the judgment was only collateral, and praying that it be opened, and they be allowed to defend against it, the court did grant a rule to show cause why the judgment should not be opened. Subsequently the matter was referred to an auditor, and the following agreement was entered of record, March 19, 1901: “ It is admitted by all the counsel present, that the judgment to April term, 1895, No. 851, and the revival thereof by sci. fa. to January term, 1901, No. 58, shall be opened for the purpose of determining how much -is due thereon and that the auditor in the orphans’ court in the estate of Hiram K. Miller shall inquire and determine how much is due thereon, if anything, subject to all the rights of all the parties that they would have in a trial and determination of that fact by a jury.”

The auditor appointed by the orphans’ court in this proceeding was the same gentleman who was appointed as auditor by the court of common pleas to report upon the petition for the opening of the judgment. The attitude in which the case then stood is shown by the following extract from the auditor’s report:

“ In the present case, the judgment was opened to find what is due on it by decree made on the agreement of the parties, they each reserving for themselves all the rights they would respectively have in a jury trial. There is no direction to the defendant to plead payment nor any other plea, nor does the agreement provide for the consideration of the matter as though any special plea had been pleaded. We do not feel called on to decide what would be the position of the respective parties, in this inquiry, so far as concerns the burden of proof if we were dealing with an absolute judgment. We have found, as a fact, that this judgment was not given as an absolute obligation, but, so far as Henry’s rights in it go, only as collateral security for what might be found due to him, from Hiram, when settlement came to be made between them. If this finding is correct, we think no presumption arises in this case from the mere giving of the judgment or bond that the whole sum named in it was then due ; and that the mere offer of it, for this reason, would not throw on the defendant the burden of disproving it. It appears to us that the burden rather lies on Henry E. Miller to show what the judgment is collateral for; in other words, to prove the primary indebtedness which it was intended to secure.”

We agree with the conclusion of the auditor that, when the judgment was.opened, and was shown to be collateral only, the burden of proving what if anything it stood for, was upon the creditor whom it was intended to secure. The record in the common pleas showed that this judgment in so far as the rights of the widow were concerned, bore the brand of collusion and fraud, and this might well lead to an order for its opening to a defense in the interest of the daughter free of all restrictions. We can see nothing in the record to justify, and are therefore at a loss to understand the concession in the opinion of the orphans’ court, that the pleas admitted the judgment, and that the judgment was opened upon terms. If this were true the position taken by the auditor would have been wrong. Our' examination of the record leads us to think that the auditor was right, in holding that the opening of the judgment by the court of common pleas was without restrictions. And that being so, under the well known rule, the burden of proof was upon the plaintiff as in all other cases.

It is true that a writ of scire facias to revive the judgment was issued, and to that writ a plea of payment was filed. . But that proceeding went no further. It was entirely separate and distinct from the proceedings in which the original judgment was entered, and the plea filed in the scire facias, cannot be considered as in the original judgment. In scire facias the writ recites the original judgment, and constitutes the declaration to which the defendant must plead. The purpose of the scire facias was only to give notice to 'the defendants to come in and show cause why execution should not issue upon the original judgment. The opening of the original judgment was a matter resting in the sound discretion of the court of common pleas, and if it was opened without conditions, as in this case, the plaintiff is put to the proof of cause of action precisely as if no judgment had been entered: Harris v. Harris, 154 Pa. 501; Sossong v. Rosar, 112 Pa. 197.

This disposes of the principal question raised by this appeal. Into the numerous instances wherein it is alleged that errors were made in the findings of fact by the auditor, and approved by the court below, we cannot enter. There was evidence to support the findings, and the exhaustive report of the learned auditor shows that it received careful consideration.

The assignments of error are all dismissed, and the decree of the orphans’ court is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Lancaster County v. Landis, Appellant.

      Public officers—County officers—Principal and surety—Settlement by county auditors—Action—Premature action.

    Where a county treasurer has kept accounts, and handed his books of account over to his successor, but has failed to pay to his successor a balance shown by his books to be due to the county, a common-law action may be maintained by the county against the sureties on the treasurer’s bond, although the county auditors may have not as yet settled and adjusted the treasurer’s account.
    Argued May 18, 1904.
    Appeal, No. 282, Jan. T., 1904, by defendant, from judgment of C. P. Lancaster Co., April T., 1900, No. 32, on verdict for plaintiff in case of Lancaster County v. Clayton G. Landis, administrator of David Bi Landis, deceased.
    Before Mitchell, C. J., Dean, Pell, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a county treasurer’s bond. Before Landis, P. J.
    Verdict and judgment for plaintiff for §67,874.03. Defendant appealed.

      Error assigned was in giving binding instruction for plaintiff.

      W. U. Sensei, with him Coyle Keller, for appellant.

      N. E. Hall, for appellee.
    October 10, 1904:
   Per Curiam,

This case is ruled by Lancaster County v. Hershey, 205 Pa. 348.

Judgment affirmed.


text:
    Young v. Geiske, Appellant.

      Libel—Trade libel—Pleadings—Special damages—Malice—Falsity of publication.

    In an action to recover damages alleged to have been sustained by the plaintiff by reason of a publication which depreciated the value of shares of stock which he had advertised to be sold at public sale, there can be no recovery without proof that the publication was false, that it was malicious, and that it had caused the plaintiff special pecuniary damages.
    In such a case if the defendant fails to demur to the statement on the ground that it does not expressly aver falsity and malice, he cannot raise such objection after a trial on the merits in which the publication was shown to have been false and malicious.
    Argued May 17, 1904.
    Appeal, No. 216, Jan. T., 1904, by defendants, from judgment of C. P. Lancaster Co., Jan. T., 1901, No. 67, on verdict for plaintiff in case of Harry C. Young v. A. W. Geiske and C. R. Strickler.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Affirmed..
    Trespass to recover damages for trade libel. Before Landis, P. J. Plaintiff’s statement was as follows :
    This action is brought by Harry C. Young, of Columbia, Pa., plaintiff, against A. W. Geiske and C. R. Strickler, defendants, to recover the sum of §10,000 damages suffered by the plaintiff at the hands of defendants, and by their trespass, injury and damage to the rights and property of the plaintiff.
    The plaintiff avers that on or about, and for a long time prior to December 15, 1900, he was the owner of 121 shares of stock in and of the Columbia Flint Company, a corporation doing business in the county of Lancaster and said stock was worth at a fair valuation, at public sale, §75.00 per share, and had sold at that price very shortly before the occurrence hereinafter recited, and that its' par value was $50.00 per share, and it paid large dividends; that some time prior to December 15, 1900, A. S. Jackson, auctioneer, at the request of plaintiff, advertised said stock at public sale, at Hotel Columbia, in the borough of Columbia; that the defendants, for the purpose of depreciating the value of said stock, and to prevent its sale, at a fair market price, and contriving to injure and depreciate the property of plaintiff, wrote, published and caused to be printed and published in the Columbia Daily Spy, a newspaper published in the borough of Columbia, a notice, of which the following is a copy:
    “Notice.—The dividend of 5 per cent, on the capital stock of the Columbia Flint Company, as announced in the papers of the 12th inst., was illegally declared and cannot be paid owing to lack of funds in the treasury.
    “ The company’s plant has not been in operation for a long time.
    “A Director.”
    That both of said defendants caused said notice to be written, published and circulated on December 12,13 and 14,1900, and procured and paid for such publication, with the intent and purpose of depreciating the value of said stock, and of preventing its sale at a fair price, and that said notice was widely read and so prejudiced, and affected the sale of said stock, that whereas it was worth $75.00 per share, and would have brought that price, it sold for the sum of $13.00 per share, and no higher price could be obtained for it by reason of said publication.
    Wherefore plaintiff suffered damages and was injured to the amount of the difference between $75.00 per share, which said stock was worth, and $13.00 per share, at which said stock was, and only could be, sold.
    Wherefore plaintiff has suffered damages from defendants to the amount of $10,000 and is entitled to recover the same in this action.
    At the trial the plaintiff offered evidence tending to show that the publication was false and malicious.
    Defendants presented this point:

      Under the law, the pleadings and the evidence, the verdict should be for the defendant. Answer: Refused.
    Plaintiff presented this point:
    1. If the jury believe from all the evidence in the case that the defendants published the notice, signed “ A Director,” maliciously, for the purpose of depreciating the value of the stock ; that the statements therein contained, or a material portion of them, were false ; and that the effect of the publication was to make the stock sell, at a fair public sale, below its real market value, they should find for the plaintiff in such amount as will fairly compensate him for his loss. Answer: We say to you that if the jury believe from all the evidence in the case that the defendants published the notice signed “ A Director,” maliciously, for the purpose of depreciating the value of the plaintiff’s stock, and the effect of the false publication was intended to, and did depreciate the stock of the plaintiff, in such case the jury can find for the plaintiff, in accordance with the rules as laid down in the general charge, to which reference is made. With this explanation the point is affirmed.

      Errors assigned were (1, 4) above instructions, quoting them.

      John A. Coyle, of Coyle Keller, with him H. M. North, for appellant.
    An action lies for the defamation of one’s interest in either real or personal property; but where such alleged slander of title is committed by one claiming the privilege of an interest in the property, the declaration must aver and the proofs must show that the statements complained of were false, and spoken of express malice, and that special damage resulted therefrom: Pursell v. Archer, Peck (Tenn.), 317; Bottomly v. Bottomly, 80 Md. 159 (30 Atl. Repr. 706) ; Kendall v. Stone, 5 N. Y. 14; Stieh v. Todd, 11 Montg. Co. Law Rep. 70; Moore v. Rowbotham, 19 Phila. 272; West v. O’Callaghan, 15 Phila. 257.
    The act of 1887 while abolishing certain distinctions in actions makes no change as to the particularity with which matters of substance, indispensable to an intelligent and just judgment between the parties, must be set out: Busch v. Calhoun, 14 Pa. Superior Ct. 578; Fritz v. Hathaway, 135 Pa. 274; Winkleblake v. Van Dyke, 161 Pa. 5 ; Byrne v. Hayden, 124 Pa. 170; Newbold v. Pennock, 154 Pa. 591; Krueger v. Nicola, 205 Pa. 38.

      W. R. Brinton and W U. Sensei, for appellee.
    In the case at bar the defendants at the commencement of the trial added the plea of “ Justification.” They thereby expressly asserted the truth of the statements contained in the “notice” signed “A Director.” They must therefore have been, and as a matter of fact were ready with their attempt to prove the truth of the advertisement, and for that purpose offered a large amount of testimony at the trial. The statement therefore did “ furnish them with the information, which it was necessary to have of the ground upon which plaintiff sought to recover,” and therefore under Baylor v. Stevens, 16 Pa. Superior Ct. 348, was sufficient.
    In an action for slander where the general issue alone is pleaded, the plaintiff cannot, in the first instance, give evidence tending to prove the defendant’s knowledge of the falsity of the words spoken: Hartranft v. Hesser, 34 Pa. 117.
    But under the plea of justification the burden is on the defendant to prove the truth of the allegation : Fleer v. Reagan, 24 Pa. Superior Ct. 170.
    This burden the defendants here assumed, and the jury found that they did not carry it successfully: Duffield v. Rosenzweig, 144 Pa. 520; Kroegher v. McConway & Torley Co., 149 Pa. 444.
    In a case like this the jury are the judges of the malice, falsity of the statements and the damages to the plaintiff. These having been found to exist, and the amount of the verdict being entirely within reason and good conscience, the judgment should not be disturbed.
    June 15, 1904:
   Opinion by

Mb. Justice Fell,

This action was to recover damages sustained by the plaintiff by reason of a publication which depreciated the value of shares of stock which he had advertised to be sold at public sale. The main ground on which a reversal of the judgment is sought is that the pleadings did not aver falsity and malice. The words constituting the offense were set out fully and exactly in the statement of claim, and special damages were alleged and the ground and extent thereof were stated with particularity. It was averred that “ the defendants for the purpose of depreciating the value of the stock and preventing a sale thereof at a fair market price and contriving to injure and depreciate the value of the property of the plaintiff, wrote, published, and caused to be printed and published,” etc., in a newspaper a notice that the dividend on the stock of the company had been illegally declared and could not be paid for lack of funds, and that the company’s plant had not been in operation for a long time. The defendants pleaded not guilty, and at the trial added the plea of justification and attempted to prove the truth of the publication. The jury were instructed that there could be no recovery without proof that the publication was false, that it was malicious, and that it had caused the plaintiff special pecuniary damage.

It is by no means clear that the statement would not have been good on demurrer. Under the procedure act of 1887 all matters of substance essential to a good cause of action must be set out with clearness and precision, but the use of technical words is not required. An action for words spoken concerning a thing is in some respects like an action for slander and in others like an action for malicious prosecution. As in slander, the words that constitute the offense must be set out in the declaration; and as in malicious prosecution, the action cannot be sustained without showing malice and want of probable cause, Notes to Burtch v. Nickerson, 1 Am. Lead. Cases, 80. In Jaggard on Torts, vol. 1, page 551, it is said that “ in wrongs of this description, as in libel and slander, the words which constitute the offense must be set out exactly in the complaint or declaration, and special damages must be alleged. In cases where character is at stake, the presumption is in favor of the party defamed; but there is no similar presumption in favour of a man’s title or the quality of his merchandise. Unless he shows falsehood, he shows no case to go to the jury.” This case was tried on its merits without objection to the pleadings. The evidence showed and the jury found both falsity and malice, and we see no sufficient reason to interfere with the judgment. All of the assignments of error are overruled, and the judgment is affirmed.


text:
    Jackson’s Estate.

      Wills—Remainder—Vested and contingent estates.

    The will of testatrix directed “ the balance of my estate I give to my granddaughter when she shall arrive at the age of twenty-one years; but in case of her death, without an heir before she shall reach the age of twenty years, the portion that would have fallen to her, shall be divided as follows:” naming the secondary beneficiaries. The granddaughter died without a child before she reached the age of twenty years. Held, (1) that the provision as to death “without an heir,” meant without a child; (2) that the gift to the granddaughter was contingent on her arrival at twenty-one years, and as she died before that age it never vested; and (3) that upon the granddaughter’s death the secondary beneficiaries took under the gift over to them.
    Argued May 18, 1904.
    Appeal, No. 2, Jan. T., 1904, by The People’s Trust, Savings & Deposit Company, administrator of Mabel Y. Tucker, deceased, from decree of O. C. Lancaster Co., dismissing exceptions to adjudication in estate of Deborah Jackson, deceased.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      H. Frank EsTdeman, for appellant.

      W T. Brown and JD. F. Magee, for appellees, were not heard.
    June 15, 1904:
   Per Curiam,

The will of the testatrix directed, “ The balance of my estate I give to my granddaughter Mabel Y. Tucker, when she shall arrive at the age of twenty-one years, and I appoint Alfred Wood to be her guardian; but in case of her death, without an heir, before she shall reach the age of twenty years, the portion that would have fallen to her shall be divided as follows : ” naming the secondary beneficiaries.

The gift to the granddaughter was contingent on her arriving at the age of twenty-one years, and as she died before that age it never .vested. The further provision as to her death before reaching the age of twenty “ without an heir ” means without a child, and this contingency having also happened, the secondary beneficiaries took under the gift over to them. The intent of the testatrix to this effect is too plain to need discussion.

Decree affirmed with costs.


text:
    Tucker’s Estate.

      Will—Remainders—Vested and contingent estate—Exclusion of husband.

    Testatrix provided as follows: “ It is my will that all the remaining portion of my estate of every Idnd shall fall to my daughter, but under the following restrictions, viz: I intend that no portion of my estate shall fall to my husband, or to his relatives on his father’s or mother’s side; but in case of the death of my daughter without her having heirs, my estate is to fall to my mother, which in case of her death before said property shall fall into her hands, then it is to fall to her heirs and legal representatives.” Testatrix’s mother died first, and her death was followed by the death of the daughter. Held, that neither the husband nor his relatives could claim through the daughter as heir of her grandmother.
    Argued May 18, 1904.
    Appeal, No. 3, Jan. T., 1904, by People’s Trust, Savings & Deposit Company of Lancaster, administrator of Mabel V. Tucker, deceased, from decree of O. C. Lancaster Co., dismissing exception to adjudication in estate of Esther K. Tucker, deceased.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      H. Frank Eshlenian, for appellant.
    TP. T. Brown and B. F. Magee, for appellees.
    June 15, 1904:
   Per Curiam,

The testatrix provided in her will that “ It is my will that all the remaining portion of my estate of every kind shall fall to my daughter Mabel Yiola Tucker, but under the following restrictions, viz: I intend that no portion of my estate shall fall to my husband, Alva J. Tucker, or to his relatives on his father’s or mother’s side; but in case of the death of my daughter without her having heirs, my estate is to fall to my mother Deborah Jackson, which in case of her death before said property shall fall into her hands, then it is to fall to her heirs and legal representatives.”

The actual intent is perfectly clear, that the death of her • daughter “ without having heirs ” means without having a child or children, and that in no case was any part of the estate to go to testatrix’s husband or his relatives. The testatrix’s mother Mrs. Jackson having died first, the granddaughter Mabel became her heir, and thus took in addition to her present defeasible estate a vested remainder in fee to which her father or his relatives might have been heirs except for the restrictions in the will. But these are mandatory and twofold, first that if Mabel died without child her interest should terminate, and the grandmother having died before her, the property should go to the latter’s legal representatives, and secondly that no part should go to the husband. This exclusion of the husband and his relatives in not merely from the first succession but runs all through the scheme of the will and neither he nor they can claim even through the daughter Mabel as heir of her grandmother Mrs. Jackson. Only those can take who are Mrs. Jackson’s “ heirs and legal representatives ” not claiming either directly or indirectly through testatrix’s husband.

Decree affirmed with costs.


author: Mr. Justice Fell,

text:
    Heathcote’s Estate.

      Will—Power of sale—Real estate—Legacies—Charge on land.

    The personal estate is the primary and prima facie the exclusive fund for the payment of legacies, and an intention to charge the real estate will not be inferred from the mere fact that there is a deficiency of personal estate.
    Testator left surviving him a widow and five children. He gave all of his estate to his widow for life, or as long as she remained his widow, appointing her executrix. He directed her as executrix to deed a factory property to two of the children named, “ and at her discretion as executrix, also pay over ” to the other three children naming them, “ each the sum of $2,500. It is my will that my executrix be authorized to sell any of my real estate, except the factory named above, to any person whom she may see proper, and divide the proceeds of such sale share and share alike among my children, or their legal representatives.” Testatrix conveyed the factory property to the two children named, filed an account of personal property, had awarded to herself the balance for distribution, and subsequently sold the remainder of the real estate. The court directed that the fund raised from the sale of the real estate should be awarded to the three children to whom bequests of $2,500 were made, in part payment thereof. Held, that the court was in error, and that the proceeds of the real estate should have been divided equally among the five children.
    Argued May 18, 1904.
    Appeal, No. 97, Jan. T., 1904, by Ellen Baughman, from decree of O. C. York Co., sustaining exceptions to auditor’s report in estate of L. K. Heathcote.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Reversed.
    Exceptions to the report of J. R. Strawbridge, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      Charles A. Hawkins, with him J. S. Black, for appellant.
    That the personal estate is the primary fund for the payment of debts and legacies is horn book law: Eavenson’s Appeal, 84 Pa. 172 ; Commonwealth v. Shelby, 13 S. & R. 348; Hanna’s Appeal, 31 Pa. 53; Riley’s Appeal, 34 Pa. 291; Duvall’s Estate, 146 Pa. 176.
    If the personalty comes short, whether from mistaken judgment of the testator as to its value, or from depreciation in the value of securities, or other cause, the beneficiaries of that fund alone will suffer: Okeson’s App., 59 Pa. 99; Duvall’s Est., 146 Pa. 176.
    There is no conversion of the real estate into personalty as suggested in the opinion below. None of the three conditions exist which will effect such a result, as set forth in Hunt & Lehman’s Appeals, 105 Pa. 128, and Irwin v. Patchen, 164 Pa. 51.

      John A. Hoober, with him William, G. Allen, George JE. Neff' and Henry G. Niles, for appellees.
    Whoever claims against the laws of descent, or against the equality of distribution among the same class, must show clearly a sufficient written title. The rule of equality of descent to relatives of the same degree is so just that the law adopts it, when the law governs, and prefers it when it interprets: Lipman’s Appeal, 30 Pa. 180; Grim’s Appeal, 89 Pa. 333; Abel v. Abel, 201 Pa. 543; Malone v. Dobbins, 23 Pa. 296; Hitchcock v. Hitchcock, 35 Pa. 393; Bruckman’s Est., 195 Pa. 363.
    The $2,500 apiece to the three children are clearly legacies that the testator desired to have paid. Where the personalty is insufficient to pay legacies, they become a charge on the land: Nichols v. Postlethwaite, 2 Dallas, 131; Dickerman v. Eddinger, 168 Pa. 240; Com. v. Shelby, 13 Sergeant & Rawle, 348; English v. Harvey, 2 Rawle, 305; Riley’s Appeal, 34 Pa. 291; Davis’s Appeal, 83 Pa. 348.
    June 15, 1904:
   Opinion by

Mr. Justice Fell,

The testator left surviving him a widow, who is the executrix of his will, and five children. He gave all of his estate to his widow for life or as long as she remained his widow. He directed her in her discretion as executrix to convey a factory property to two of his children and to pay to each of the remaining three $2,500. He authorized her to sell the remainder of his real estate and to divide the proceeds equally among all of his children. The widow conveyed the factory property to the two children named and filed a partial account of the personal estate, in which she charged herself with the amount of the inventory, $13,656, and claimed credit for stocks unsold appraised at $6,700. The balance for distribution, $4,200, was awarded to her on the supposition that since there was no bequest over she took the personal estate absolutely. Sbe sold the remainder of the real estate and on the audit of her account the balance, $3,900, was awarded in equal shares to the testator’s five children. Exceptions to the report of the auditor were sustained by the orphans’ court, and the fund was awarded to the three children to whom bequests of $2,500 each were made, in part payment thereof.

The part of the will to be considered is this: “ I give and bequeath to my beloved wife Sarah Heathcote all my property, real and personal, during her lifetime or while she remains my widow, directing her at any time after my decease, as my executrix, to deed the factory property located on Baltimore street in the borough of Glen Rock, York county, Pennsylvania, to my son Spurgeon Heathcote, a,nd my daughter Ellen Baughman, and at her discretion as executrix, also pay over to my daughters Lottie Lutz and Mary Jane Heathcote and my son Lloyd Heathcote each the sum of $2,500. It is my will that my executrix be authorized to sell any of my real estate, except the factory named above, to any person whom she may see proper, and divide the proceeds of such sale share and share alike among my children or their legal representatives.”

The testator evidently intended to give his widow an estate for life only or widowhood in his real and personal estate with remainder to his children, each to take not an equal but a designated share. If his intention in regard to the estate which his widow should take in the personalty is defeated by a construction which the law places on his will and the shares of three of his children are diminished thereby, the court cannot give effect to his intention under the changed circumstances by writing a new will for him. The executrix had a discretion when to sell the real estate not specially devised, but the direction to divide the proceeds of the sale share and share alike among all the children was mandatory. That he intended equality of distribution is only a surmise, since we have no knowledge of the value of the factory property. But his intention in this regard is not open to inquiry in view of his distinct and positive direction as to what each child should take. This direction would prevail against an expressed intention to make an equal division: McKibbin’s Estate, 207 Pa. 1.

There was not a conversion of the real estate. There was nothing in the will from which an intention to charge the legacies on the land can be inferred. There w;as no direction to sell it, no necessity to sell it in order to carry out the provisions of the will, and no blending of the real and personal assets which shows an intention to create a fund and bequeath it as money. The personal estate is the primary and prima facie the exclusive fund for the payment of legacies, and an intention to charge the real estate will not be inferred from the mere fact that there is a deficiency of personal estate: Duvall’s Estate, 146 Pa. 176.

The decree is reversed and it is now directed that distribution be made in accordance with this opinion.


text:
      Ziegler v. Schall, Appellant.

      Judgment—Lien—Decedent’s estates—Heirs and devisees.

    The lien of a judgment obtained during the life of a decedent continues indefinitely as against his heirs and devisees, although its priority may be lost as to other judgments against the decedent by the lapse of more than five years between two revivals, or as to mortgagees or judgment creditors of devisees by the failure at a revival to give notice to them, as provided by the Act of June 18, 1895, P. L. 197. Amere assignment of the interests of devisees as security for judgments confessed by them will not end the lien of the judgment against the decedent, so as to deprive the orphans’ court of jurisdiction to sell the land for the payment of decedent’s debts.
    Argued May 18, 1904.
    Appeal, No. 125, Jan. T., 1904, by defendant, from "order of C. P. York Co., April T., 1904, No. 101, entering judgment for plaintiff, on case stated in suit of Edward D. Ziegler, Administrator of Albert H. Kottcamp, deceased, v. John Schall.
    Before Mitchell, C. J., Dean, Fell, Potter and Thompson, JJ.
    Affirmed.
    Case stated to determine title to real estate. Before BitTENGER, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the court.

      Richard E. Qochran and Smyser Williams, for appellant.
    The title to the property depends upon the existence of the lien of the judgment against the decedent upon the real estate of which he died seized at the time of the granting of the order to sell, for the court has no jurisdiction to authorize a sale for the payment of debts which have lost their lien: Pry’s Appeal, 8 Watts, 253 ; Smith v. Wildman, 194 Pa. 294.

      An assignment is defined to be a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein: Lemon v. Graham, 131 Pa. 447.

      Edward D. Ziegler, E. Dean Ziegler and Boss Brenneman, for appellee.
    A judgment entered against a defendant in his lifetime may be revived, after his death, for the purpose of lien and execution by scire facias against his administrators alone, and it is unnecessary to bring in the widow and heirs or devisees under the Act of February 24,. 1834, sec. 34, P. L. 70, nor is such proceedings necessary under Act of June 1, 1887, P. L. 289 : Middleton v. Middleton, 106 Pa. 252; Grover v. Boon, 124 Pa. 399; Specht v. Sipe, 15 Pa. Superior Ct. 207; Chahoon v. Hollenback, 16 Serg. & Rawle, 425.
    It is also settled law that the heirs and devisees of a decedent or testator are mere volunteers, and take but what is left of their ancestor’s or testator’s estate after the debts are paid: Horner v. Hasbrouck, 41 Pa. 169; Appeal of Nichols, 128 Pa. 428 ; Shannon v. Newton, 132 Pa. 375 ; Smith v. Seaton, 117 Pa. 382 ; Specht v. Sipe, 15 Pa. Superior Ct. 207 ; DeWitt v. Lehigh Valley R. R. Co., 21 Pa. Superior Ct. 10.
    Under the act of 1834 the lien of a judgment against the decedent at the time of his death as against heirs and devisees is without limit, and needs not to be revived every five years in order to be executed at any time on lands still held by them: Fetterman v. Murphy, 4 Watts, 424; Brobst v. Bright, 8 Watts, 124; Wells v. Baird, 3 Pa. 351; Konigmaker v. Brown, 14 Pa. 269 ; Bindley’s Appeal, 69 Pa. 295; Shearer v. Brinley, 76 Pa. 300; Aurand’s Appeal, 34 Pa. 151; Colenburg v. Venter, 173 Pa. 113.
    June 15, 1904:
   Opinion by

Mb. Justice Fell,

This appeal is from a judgment in a case stated to determine the validity of the title to land sold at an orphans’ court sale for the payment of debts. The only question to be considered is whether the debt of the decedent, for the payment of which the sale was ordered, was a lien on the land sold.

The decedent devised his real estate to his wife for life with remainder to his children. At bis death, February 21, 1885, there was a judgment against him which was a lien on his real estate. This judgment was revived February 11, 189 0; a second time April 6, 1895, and a third time April 4, 1900. Each of these revivals was by amicable scire facias to which the executors "only were parties. In 1892 and 1894 judgments by confession were entered against all of the devisees, and they all assigned their interests in the real and personal estate of the decedent as collateral securities for the payment of the judgments. These judgments were revived, and were liens against whatever estate in the realty the devisees had when the sale was ordered.

The question of priority of liens is not before us and can arise only on distribution. If the lien of the judgment against the decedent continued, the orphans’ court had jurisdiction to order the sale, and the deed tendered the defendant will pass a valid title. That the lien did continue has been settled beyond all doubt, unless there was an alienation of ^ the land by the devisees. Its priority might be lost as to other judgments for debts of the decedent, if there were any, by the lapse of more than five years between the first and second revivals, or as to mortgagees and judgment creditors of the devisees by the failure at the third revival to give notice to them, as provided by the act of June 18, 1895, but its existence as a lien continued. The lien of a judgment obtained during the life of a decedent continues indefinitely as against his heirs and devisees: Konigmaker v. Brown, 14 Pa. 269 ; Aurand’s Appeal, 34 Pa. 151; Bindley’s Appeal, 69 Pa. 295; Shearer v. Brinley, 76 Pa. 300; Shannon v. Newton, 132 Pa. 375 ; Colenburg v. Venter, 173 Pa. 113. The assignees of the interests of the devisees were not bona fide purchasers, but at the most only mortgagees. Words necessary to convey a fee were not used, and the clearly expressed’ intention was to assign the interests as security for the judgments confessed.

The judgment is affirmed.


text:
    Commonwealth v. Williams, Appellant.

      Evidence—Cross-examination—Credibility of witness—Murder—Criminal law.

    On the trial of an indictment for murder it is proper to exclude a question propounded on cross-examination to a witness for the commonwealth “ whether or not she was running a house of ill repute in which liquor was sold and drunk contrary to law, and gambling was carried on, and to follow this further by showing by the witness herself that she is a married woman; that she does not live with her husband, and that she has not lived with him for many years and to follow her back in her career for the purpose of identification and affecting her credibility.”

      Criminal law—Murder—Trial—Separation of jury.

    A verdict of guilty in a murder trial will not be set aside because one of the jurors at one of the adjournments of the court thinking that he was allowed to go home separated himself from his fellows, but was brought back in a few minutes, and before he had left the courthouse, and testified that during his separation he had talked to no one, or heard any talk by any one about the case.
    Argued May 23, 1904.
    Appeal, No. 130, Jan. T., 1904, by defendant, from judgment of O. & T.'Clearfield County, Dec. T., 1903, No. 44, on verdict of guilty of murder of the first degree in case of Commonwealth v. John W. Williams, alias “Black Spot.”
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Indictment for murder.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned among others were (1) rejection of offer quoted in the opinion of the Supreme Court; (6) in not granting a new trial because of the separation of the jury.

      A. L. Cole, with him Smith V. Wilson, for appellant.

      William 1. Swoope, district attorney, for appellee, was not heard.
    June 15, 1904:
   Per Curiam,

None of the assignments of error have any substance.

Appellant in cross-examination of the witness Betty Friday asked, “ Weren’t you running a sporting house there?” and offered to follow with the question, “ whether or not she was running a house of ill repute in which liquor was sold and drunk contrary to law, and gambling was carried on, and to follow this further by showing by the witness herself that she is a married woman ; that she does not live with her husband and that she has not lived with him for many years and to follow her back in her career for the purpose of identification and affecting her credibility and show what she has been doing for the last dozen years or thereabouts.” The question and offer were properly excluded. Such evidence was considered and decided to be inadmissible, in Com. v. Payne, 205 Pa. 101, a much stronger case than the present, for there the offer was to follow the questions with proof of reputation for truth and veracity. That case is in harmony with our own prior decisions, Gilchrist v. McKee, 4 Watts, 380; Conroe v. Conroe, 47 Pa. 198; Moyer v. Moyer, 49 Pa. 210; Drown v. Allen, 91 Pa. 393 ; Com. v. Bubnis, 197 Pa. 542; and the better opinion elsewhere seems to be in the same line, though the authorities are not uniform. They are very fully collected in Kolb v. Union R. R. Co., 23 R. I. 72 (54 Lawyer’s Rep. Annotated, 646) cited by the learned judge below in his opinion refusing a new trial.

The only other assignment of error that we need notice is the separation of the jury. The facts are thus reported by the learned judge below: “ Upon the adjournment of court one of the jurors, through ignorance thought that he was allowed to go home until the meeting of court the next morning. He separated himself from his fellows and went to a water-closet. The two tipstaffs, who had been duly sworn and instructed not to allow the jury to separate, took the other eleven jurors to the jury room when it was immediately discovered that one of the jurors was missing. Search was made' and he was discovered in the hall of the courthouse coming from the closet. He was called as a witness and testified that he had talked to no one or heard any talk by anyone about the case. He was separated from his fellows but for a few minutes, probably from three to five. We are convinced that this unfortunate incident occurred entirely through the ignorance of the juror and the carelessness of the officers having the jury in charge, and that no harm was done to the defendant nor was he in any manner prejudiced thereby.”

Because of their own long standing familiarity with the circumstances under which the jury are required to keep together, lawyers and judges are perhaps apt to presume the same knowledge on the part of the jurors, to whom however the distinctions between the rules in murder and other cases are unknown. In view of the recurrence of questions of this kind it is highly desirable that all juries shall be clearly and specifically instructed when to avoid separation, and generally as to their conduct during the trial.

In the present case the separation was carefully investigated by the learned judge below, and it was affirmatively shown that the prisoner was not in any manner prejudiced by it. The ease is therefore within the authority of Com. v. Cressinger, 198 Pa. 326 (338).

Judgment affirmed and record remitted to the court of oyer and terminer for purpose of execution.


author: Mb. Justice Mestbezat,

text:
    Manor Real Estate and Trust Company, Appellant, v. Cooner.

      Taxation—Tax assessment—County commissioners—Board of revision— Oath.

    A failure of county commissioners to be sworn as a board of revision does not invalidate a tax assessment made by them when acting as such aboard.

      Taxation—Tax assessment—Transcript—Act of April 15, 1834, P. L. 509—Costs.

    A tax assessment is not invalid because the county commissioners acting as a board of revision send to the assessor the original instead of a transcript of the triennial assessment as required by sec. 11 of the Act of April 15, 1834, P. L. 509.
    Where a bill in equity is filed to declare invalid a tax assessment because of irregularities of the county commissioners, and it appears that the county commissioners were guilty of irregularities, but not of such a character as to invalidate the assessment, the court in dismissing the bill may properly impose the costs upon the county.
    Argued May 23, 1904.
    Appeal, No. 263, Jan. T., 1903, by plaintiff, from decree of C. P. Northumberland Co., No. 242, in equity dismissing bill in equity in case of Manor Real Estate & Trust Company v. A. H. Cooner et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity to restrain the collection of a tax.
    Auten, J., filed the following opinion:
    The prayer of the bill is that the county commissioners and the various officers of Coal township be enjoined from proceeding to collect certain alleged illegal taxes levied and assessed upon the Luke Fidler tract of land ; that an assessment on said' tract, alleged to have been made by the assessor elected in 1901, after the triennial assessment of 1900 had been completed, assessing said tract at an increased valuation, be declared illegal and void, and that plaintiff be granted such further and other relief as to the court shall seem meet.
    From the pleadings and testimony we find the following as the material facts:
    1. The Manor Real Estate and Trust' Company is a corporation duly incorporated under the laws of the state of Pennsylvania, and is the owner of a certain tract of land situate in Coal township, Pennsylvania, containing 574 acres and known as the Luke Fidler tract, and was the owner thereof in 1900 and 1901.
    2. That James Lynch was elected assessor of Coal township in February, 1898, for the term of three years and made the triennial assessment of lands in said township for the year 1900, and assessed the Luke Fidler tract with a valuation of $25 795, and returned his said triennial assessment to the office of the said county commissioners on or before December 31, 1900.
    3. That James Madden Was elected assessor of the township of Coal in February, 1901, for the term of three years, and made the annual assessment for said township for the year 1901.
    4. That A. H. Cooner, W. H. Rohrbach and G. W. Raudenbush were duly elected county commissioners of the county of Northumberland, were duly qualified and acting as such for the years 1900 and 1901.
    5. That the county commissioners of the county of Northumberland did not organize themselves into a board of revision for the purposes of adjusting the valuations in the said county, as returned by the triennial assessors, as provided by act of assembly; but that they acted as such board of revision without organizing in the manner prescribed by law.
    6. That the county commissioners did not furnish a transcript of the triennial assessment of 1900, made by James Lynch, triennial assessor, to James Madden, assessor for 1901, but in lieu thereof furnished him the original.
    7. That the said county commissioners, sitting as a board of revision, but without having first organized and taken the oath of office as such as prescribed by the act of assembly, did revise, adjust and equalize the valuation of property throughout the county of Northumberland and while so sitting did, on May 17, 1901, at the council chambers in the borough of Shamokin, Pennsylvania, raise the valuation placed upon the Luke Fidler tract in Coal township by the triennial assessor of 1900 from $25,795, to $62,620, and that such raise in the valuation of said tract was entered upon the triennial assessment book of 1900 for Coal township by the said board of revision. That on said last mentioned date the .plaintiff was requested to appear at the courthouse in the borough of Sunbury, on May 20,1901, the day fixed for hearing the appeal for corporations, on which last mentioned day, at the place appointed, plaintiff was represented at the appeal, and subsequently, to wit: on July 24,1901, at the request of the plaintiff, the county commissioners acting as a board of revision as aforesaid, together with the assessor of Coal township, met the representatives of the plaintiff at its office in the borough of Shamokin, Pennsylvania, when the county commissioners, acting as a board of revision as aforesaid, reduced the valuation of the said Luke Fidler tract of land from $62,620, to $57,400; and that after said last mentioned date said commissioners, acting as such or as a board of revision aforesaid, made no other or further changes in said valuation .or assessment. That on May 18, 1901, Samuel Clayberger, clerk to the assessor of Coal township, delivered to Squire Helm, a clerk in plaintiff’s office, a notice in writing, fixing the date and place for the appeal and continuing the valuation of the Luke Fidler tract as raised by the county commissioners on May 17.

      8. The plaintiff paid taxes on the said Luke Fidler tract of land on the valuation of $25,795, for the year 1901, but has not paid taxes on the remainder of the valuation of $57,400, for the year of 1901, on said tract, to wit: the sum of $31,605.
    Our conclusions of law are as follows :
    1. That the assessment made by the triennial assessor, and returned to the office of the commissioners of Northumberland county, fixed the valuation of the Luke Fidler tract for the years 1901, 1902 and 1903, unless changed by the commissioners of the said county, acting as a board of revision, or on aj^peal, or reassessed by the annual assessor, because of improvments erected thereon after the triennial assessment was made, and unless such improvements were made upon the said tract the annual assessor had no jurisdiction in 1901, or at any time thereafter to increase the valuation made by the last triennial assessor, and such increased assessment would be void.
    2. That the county commissioners of Northumberland county had no right to increase or lower, or in any way, change the triennial assessment made by James Lynch, the triennial assessor in the fall of 1900, unless acting as a board of revision, and then only on notice to the plaintiff.
    3. That it was the duty of the triennial assessor in the fall of the year of 1900 to make and return a just and perfect list, in such form as the county commissioners directed, of all property taxable by law, with a just valuation of the same, and return the same into the office of the commissioners of Northumberland county, on or before December 31, 1900. And it was the duty of the county commissioners to cause a written transcript of this to be made out and transmitted to the annual assessor for said township before the second Monday of April following.
    4. That the annual assessor in 1901 had no jurisdiction or authority of law to reassess any of the property so valued and returned by the triennial assessor, except in cases where the valuation thereof had been increased by improvements made thereon, after the triennial assessment, or where buildings have been destroyed since the said assessment.
    5. That the county commissioners having been duly qualified and having acted as a board of revision, and revised and equalized the assessments throughout the county, they were de facto officers, tlieir acts cannot be questioned and the plaintiff cannot complain in this action for any increase made by them in the valuation of the Luke Fidler tract.
    6. That the failure of the county commissioners to be sworn as a board of revision did not invalidate the said assessment, they were de facto officers and having acted as a board of revision the validity of their acts cannot be questioned in this proceeding.
    7. Where the general power to assess exists the remedy for illegal taxation is by appeal; if no appeal be taken the court will not reverse the judgment of the tax officers.
    8. That the county commissioners acting as a board of revision had the power and authority to raise the valuation of the said Luke Fidler tract of land in Coal township, and the regularity of their methods in so doing cannot here be called into question, as the plaintiff had a full and adequate remedy at law.
    9. That if the plaintiff was aggrieved by the increase of the valuation on the said Luke Fidler- tract it had an adequate remedy in law by appeal to the court of common pleas, and if aggrieved by the rate of assessment of taxes levied on said tract it had an adequate remedy in law by appeal to the next court of quarter sessions and this court had no jurisdiction to entertain this bill or to award an injunction restraining the collection of taxes.
    10. The plaintiff in this case has shown no such facts as entitle it to relief in a court of equity.
    11. The plaintiff in this case has an adequate remedy at law and this court has no jurisdiction to entertain this bill.
    As we view this case, the principal point for determination is whether the proceedings relative to the assessment of the Luke Fidler tract and the fixing the valuation thereon at the sum of 157,400 was illegal and void or merely irregular. If void, the injunction should be granted as prayed for, if irregular only, the injunction should be refused. That there were irregularities is abundantly proven by the testimony. The law provides that the county commissioners shall, when the proportions of the several wards, townships and districts shall be ascertained, cause accurate transcripts of the assessments to be made out by their clerk, and shall transmit the same to the respective assessors on or before the second Monday of April following, together with the statement of the rate per cent and the day of appeal fixed by them. In the present case instead of furnishing the transcript required, the county commissioners furnished to the annual assessor the original assessment made out and returned by the triennial assessor. The Act of July 27, 1842, P. L. 441, provides that the county commissioners shall compose a board to be called a “ board of revision,” and they shall take and subscribe the oath or affirmation therein prescribed. The testimony clearly shows that the oath required by this act was not taken. Thus, at least two specific provisions of the law were totally neglected by the commissioners. They testify, however, that while they did not take the oath required by the act of assembly, they did revise, correct and equalize the valuation of the taxable property of the county, and that they then supposed they were proceeding legally and regularly. The mere fact that they neglected to send a transcript to the annual assessor is not, in our judgment, important. This neglect may have been for want of time to have it prepared or from motives of economy, besides no one is injured thereby. As to the oath required to be taken by them as members of the board of revision, it will be noticed the. act of 1842 declares that “ the county commissioners shall compose a board to be called a board of revision.” “ Compose ” means to put together, to make up, to constitute. It was therefore unnecessary that the county commissioners should organize or resolve themselves into a board of revision; the act of assembly, by its very terms, constitutes them such board. As such board, it is their duty to take and subscribe the oath provided. It was their duty to make their revisions and to hear appeals, not as commissioners, but as a board of revision. The testimony discloses that as they revised the valuation of the Luke Fidler tract, they in the same manner revised and equalized the taxable property of the county. In so doing they were de facto a board of revision, just as is a township officer or any other county officer, who performs official acts before taking his oath of office. The proceedings, therefore, while irregular were not illegal and void.
    The legislature has provided a complete system of taxation, and has also furnished to any taxable who may feel aggrieved by the action of the taxing powers an ample remedy by appeal to the courts. The plaintiff, instead of pursuing the remedy provided by the act of assembly, has invoked the equity side of the court to grant relief from the wrongs, either real or fancied, it complains of. It cannot secure by injunction what it might have accomplished by adopting the course afforded by statute.
    The injunction is therefore refused and the bill is dismissed.
    In view, however, of the many irregularities which evidently invited this litigation and for which the county is largely responsible, we think the county should pay a portion of the costs. It is therefore directed that the county of Northumberland pay the record costs and the defendants’ witness bill and that the • plaintiff pay its own witness fees.

      Error assigned was the decree of the court dismissing the bill.

      8. P. Wolverton, with him J. C. Bucher, for appellant,
    cited: Delaware & Hudson Canal Co. v. Walsh, 2 Phila. Rep. 587.

      Fred B. Moser and William W. Ryon, with them Charles 0. Lark and John L. Welsh, for appellees,
    cited: M’Gargell v. Hazelton Coal Co., 4 W. & S. 424; Gregg Twp. v. Jamison, 55 Pa. 468; King v. Phila. County, 154 Pa. 160; Riddle v. Bedford County, 7 S. & R. 386; Kingsbury v. Ledyard, 2 W. & S. 37 ; Com. ex rel. Bowman v. Slifer, 25 Pa. 23 ; Brunott v. M’Kee, 6 W. & S. 513; Campbell v. Com., 96 Pa. 344 ; Neale v. Overseers, 5 Watts, 538; York Co. v. Small, 1 W. & S. 315 ; Com. v. Clemmer, 190 Pa. 202 ; Com. v. Valsalka, 181 Pa. 17: Clark v. Commonwealth, 29 Pa. 129; Commonwealth v. Burrell, 7 Pa. 34; Commonwealth ex rel. McLaughlin v. Cluley, 56 Pa. 270; Commonwealth v. McCarter, 98 Pa. 607; Coyle v. Commonwealth, 104 Pa. 117; Truesdell’s Appeal, 58 Pa. 148, 151; Hughes v. Kline, 30 Pa. 227; Banger’s Appeal, 109 Pa. 79.
    June 15, 1904:
   Opinion by

Mb. Justice Mestbezat,

The clear and full opinion of the learned trial judge relieves us from an extended discussion of the questions involved in this case. As disclosed by his opinion, he does not disagree with the learned counsel for the plaintiff, the appellant, as to the duties of the taxing officers under the legislation of the state. The disagreement arises principally as to the facts deducible from the testimony presented on the trial of the cause. The court below found that the plaintiff’s property was duly assessed and returned to the commissioners in the fall of 1900—the triennial year; that the original assessment was transmitted to the assessor by the commissioners of Northumberland county, who fixed May 17,1901 as the date, and the council chambers of the borough of Sham-okin as the place, for hearing appeals; that on this day, the commissioners sitting as a board of revision, without having organized and taken the oath required by the act of assembly revised, adjusted and equalized the valuation of the plaintiff’s property, and raised the valuation of $25,795, placed upon it by the triennial assessor in 1900, to $62,620, which latter valuation was entered on the triennial assessment book of 1900 of the township by the board of revision; that on request, the plaintiff appeared before the board at the courthouse in the borough of Sunbury, May 20,1901, the day fixed for hearing appeals of corporations, and subsequently, on July 24, 1901, at the request of the plaintiff, the board of revision and the township assessor met the plaintiff company’s representative at its office in Shamokin when the board reduced the valuation from $62,620 to $57,400. After a careful examination and consideration of all the testimony, we are satisfied that these conclusions of fact are warranted by the evidence in the case.

The plaintiff contends that the increase in the assessment was made by the annual assessor for 1901, and not by the county commissioners sitting as a board of revision on the triennial assessment of 1900. We have carefully read the testimony in the case with special reference to this question and fully concur with the finding of the trial judge that the board of revision, and not the annual assessor, increased the valuation of the plaintiff’s property. There is no testimony to support the plaintiff’s contention except that of three of its witnesses who say that Madden, the assessor elected in February, 1901, told them that he revised and increased the assessment. He satisfactorily explained his conversation with these gentlemen when on the witness stand, and testified positively that he did not make the change in the assessments, but that it was made by his clerk who was th¿n acting as the clerk of the county commissioners, who instructed him to increase the assessment. Mr. Madden’s clerk, Clayberger, testifies to the same effect. The three county commissioners corroborate this testimony and swear that they, sitting as a board of revision, revised and increased the triennial assessment of the plaintiff’s property made in 1900, to #62,620, and subsequently, at the request of the plaintiff, reduced it to #57,400. The testimony fully supports the finding of the trial judge.

. We agree with the court’s conclusion of law “that the failure of the county commissioners to be sworn as a board of revision did not invalidate the said assessment, they were de facto officers, and having acted as a board of revision the validity of their acts cannot be questioned in this proceeding.” The act of assembly provides that “the county commissioners . . . . shall compose a board to be called ‘ a board of revision.’ ” The testimony conclusively shows that in revising and increasing the valuation of the plaintiff’s property, the commissioners were acting as a board of revision. The plaintiff corporation recognized their official position as a board by appearing before them and making application for the reduction of its assessment. It must be assumed that the corporation knew that they had no authority as county commissioners to reduce the valuation or take any action looking to that end. On two occasions, however, the plaintiff demanded a revision of its assessment by the three commissioners who were sitting for the purpose, and now complains that it was not given another hearing by the same officials to enable it to have its valuation reduced. The fact that the commissioners failed to take the oath prescribed by the act cannot avail the plaintiff in this proceeding. They were a de facto board of revision, and having colorable title to the office by virtue of being the commissioners of the county they were a board of revision de jure so far as the right of the plaintiff to attack their authority as such in this proceeding is involved.

It is also objected that the assessment was irregular because the commissioners sent to the assessor the original instead of a transcript of the triennial assessment as required by the eleventh section of the Act of April 15,1834, P. L. 509. This objection is purely technical and has no merit whatever. The original assessment served the same purpose as a correct transcript and gave the same information to interested parties. While there might have been errors in the transcript, there could have been none in the original assessment. The plaintiff not being injured by the failure of the commissioners to comply literally with the statute in this respect has therefore no just ground of complaint.

We are of opinion that the legislation relative to the. assessment of taxes against real estate was substantially complied with in this case, and while the proceedings were in some respects irregular, they were not illegal or void. If aggrieved by the valuation placed on its property, the plaintiff had a complete and adequate remedy by appeal to the court of common pleas under the Act of April 19, 1889, P. L. 37, and if in its judgment that court erred against it, there was an opportunity given it to correct the error by an appeal to one of the appellate courts of the state under the recent Act of June 26, 1901, P. L. 601.

We do not approve of the loose manner in which the commissioners of Northumberland county performed their duties in the assessment of this property. While the irregularities are not fatal to the proceeding, yet they were doubtless the cause of this litigation, and the learned trial judge was right in expressing his disapproval of the conduct of the county commissioners by not placing the costs on the plaintiff. He might, with propriety, have placed them upon the commissioners. The statutes regulating the assessment of taxes are plain and their requirements easily understood and in this instance the failure to observe them manifestly arose from inadvertence or carelessness by the taxing officers.

The judgment.is affirmed.


author: Mb. Justice Bbown,

text:
    Montelius v. Montelius, Appellant.

      Evidence—Competency of witness—Party dead—Act of June 11, 1891, P. L. 287.
    The surviving party to a contract may testify as to matters that occurred in the lifetime of the deceased party, only where there is a person living at the time of the trial between whom and the surviving party the matter relevant to the issued occurred, and where such person is competent to testify and actually did testify to such matter at the trial.

      Ejectment—Evidence—Offer of proof—Practice, C. P.

    Where in the trial of an ejectment defendant makes an offer, which if fulfilled would have prevented binding instructions for plaintiff, and the court without ruling upon the offer says : “ All offers will be considered as proven,” and immediately directs a verdict for plaintiff, such verdict and the judgment entered upon it will be set aside by the appellate court.
    Argued May 23, 1904.
    Appeal, No. 51, Jan. T., 1904, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1900, No. 173, on verdict for plaintiffs in case of Walton H. Montelius and Thomas M. Righter, executors of Alfred M. Montelius v. William T. Montelius.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Ejectment for land in the borough of Mount Carmel.
    Verdict and judgment for plaintiffs by direction of the court.

      Errors assigned were (1) in ruling out the evidence referred to in the opinion of the Supreme Court; (2) in giving binding instructions for plaintiffs.

      W. H. M. Oram, with him J. E. Bastress, for appellant.
    The plaintiffs were in a position to contradict the witness on the stand by the remaining living witness in the contract, and consequently the witness was competent to testify to the acts and statements of Walton H. Montelius and the court erred in striking out this testimony: Merchants and Mfrs. Bank v. Pizor, 24 Pa. C. C. Rep. 273; Gold v. Scott, 5 Pa. Superior Ct. 262; Equitable Trust Co. v. Bowen, 201 Pa. 534; Fritz’s Est., 3 Pa. Superior Ct. 33; Irwin v. Patchen, 164 Pa. 51.
    There is every element necessary to constitute a valid, equitable title in the defendant, to wit: agreement to sell, possession, valuable improvements, acknowledgment of defendant’s rights by the vendor and acts of ownership to the knowledge and consent of the vendor with payment of purchase money, and it seems clear that upon this proposition the court was in error in directing the jury to find a verdict for the plaintiffs: Hart v. Carrol, 85 Pa. 512; Reno v. Moss, 120 Pa. 49; Schuey v. Schaeffer, 130 Pa. 16 ; Jamison v. Dimock, 95 Pa. 52; Hancock v. Melloy, 5 Pa. Dist. Rep. 461; McKee’s Est., 31 Pitts. L. J. (N. S.) 309 ; Galbraith v. Galbraith, 190 Pa. 225; Goodwin v. McMinn, 193 Pa. 646; Seichrist’s App., 66 Pa. 237; Squires’s App., 70 Pa. 266.

      S. P. Wolverton, with him W. B. Faust, for appellee.
    The defendant was incompetent: King v. Humphreys, 138 Pa. 310 ; Baldwin v. Stier, 191 Pa. 432.
    As the evidence of the case stood at the close of the testimony the court could only direct a verdict in favor of the plaintiff: Snavely v. Wagner, 3 Pa. 275; Green v. Watrous, 17 S. & R. 393 ; Drake v. Brown, 68 Pa. 223; Birkbeck v. Kelly, 19 W. N. C. 422; Wylie v. Mansley, 132 Pa. 65.
    June 15, 1904:
   Opinion by

Mb. Justice Bbown,

In this ejectment, brought by the appellees on the legal title of their testator, the appellant, in attempting to sustain his equitable ownership to the property, was incompetent to testify to anything that had occurred during the lifetime of the decedent. Under a general objection, he was permitted to testify to what had taken place between himself and his brother, Walton H. Montelius, during the lifetime of their father; and the plaintiffs then, on the ground of his incompetency to so testify, moved to strike out all of this testimony. The motion was allowed and the testimony embraced in the first assignment of error stricken out, with no exception taken by the defendant to the action of the court in doing so.

It is conceded that, under the act of 1887, the appellant was incompetent to testify to what is alleged to have occurred between him and his brother prior to his father’s death, but it is contended by his counsel that, by the Act of J une 11, 1891, P. L. 287, he was a competent witness. In the face of the plain words of that act, it is difficult to understand how such a position can be seriously taken. They are, “ That hereafter in any civil proceeding before any tribunal of this commonwealth, or conducted by virtue of its order or direction, although a party to the thing or contract in action may be dead or may have been adjudged a lunatic, and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on a record who represents his interest in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract or any other person whose interest is adverse to the said right of such deceased or lunatic party, shall be a competent witness to any relevant matter, although it may have occurred before the death of said party or the adjudication of his lunacy, if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testif}1", and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus adverse.” The alleged relevant matter here occurred between the appellant and Walton H. Montelius, who was living at the time of the trial, but who, if competent to testify, did not do so against the surviving son whose interest is adverse to the right of their deceased father. From Roth’s Estate, 150 Pa. 261, decided in 1892, down to Rudolph v. Rudolph, 207 Pa. 339, we have uniformly held, when it has been urged that the purpose of the act of 1891 is very broad, that its words have but one meaning, and that the lips of one who would have been incompetent before its passage are unsealed only when its conditions of his competency arise on the trial. In support of their view counsel for appellant cite Irwin v. Patchen, 164 Pa. 51, in which case, it is true, the late Justice Gjreen said, “ The act authorizes the admission of testimony of one of the parties to facts transpiring before the death of the deceased party or person, if the relevant matter occurred between the witness and some other living and competent person.” As this is not the first time these words have been cited to us to sustain the position taken by counsel for the present appellant, it is proper that we should stop any further reference to' them for such a purpose. The competency of Henrietta Irwin, one of the plaintiffs, to prove that she had paid certain taxes on the land in dispute was objected to on the ground that Horace Patchen, under whom the defendants claimed, was dead. In the opinion of the court, immediately preceding the quoted words is a statement that she had made the payments after the death of Patchen, and the careful reader of the case will at once notice that the question of her competency under the a.ct of 1891, was not before the court. In referring to it after it had been cited, the quoted remark, under the circumstances to be regarded as a mere passing one, was made without adding the proper qualifying words, which certainly would have appeared if the question in the present case had been íaised.

The second assignment of error must be sustained. It brings to our notice an unusual record. Just before closing his case an offer was made by the defendant “ to prove that Walton H. Montelius was the agent and representative of Alfred M. Montelius, whose executors the plaintiffs are; that in pursuance of authority given by the decedent to his said agent, and directions to that effect, he made a contract with the defendant to purchase the property for him at the sheriff’s sale; and that subsequently the terms of the contract were carried out and the purchase money paid by the defendant, who has remained in possession to the present time.” On objection to this, the trial judge, without formally passing upon the offer, simply said: “ All offers will be considered as proven,” adding, “ I will enter a motion for a new trial, and in the meantime the defendant remains in possession of the property.” In disposing of this motion he refused to disturb the verdict, and judgment was entered upon it. Whether the defendant’s proofs would have come up to his offer, it is not for us to consider. He should have been allowed to submit them in support of it, and, if he had succeeded as proposed in it, in showing that Walton H. Montelius as the agent of the decedent, in pursuance of authority given him by his principal, had made a contract with the appellant to purchase the property in dispute for the latter at the sheriff’s sale; that subsequently the terms of the contract were carried out and the purchase money paid by the appellant, who had remained in possession of the property up to the time of the trial, a verdict could not have been directed for the plaintiffs. This is too clear for discussion, and when the defendant, instead of being permitted to submit his proofs, was told by the court that all his offers were to be considored as proven, the error in immediately thereafter directing a verdict ' against him is so manifest that it calls for prompt correction.

Judgment reversed and a venire facias de novo awarded.