author: Per Curiam,

text:
    Brightly v. McAleer.

      Practice, Superior Court — Writ of restitution.

    A writ of restitution may be awarded under the Act of June 24, 1895, P. L. 212, where a verdict and judgment are reversed after execution issued below.
    Petition for restitution. November T., 1897, No. 32.
    Petition is as follows: That F. F. Brightly brought an action of assumpsit against your petitioner in the court of common pleas No. 1, of Philadelphia county, which suit is entitled Frank F. Brightly against George McAleer, C. P. No. 1, June T., 1895, No. 751, in which suit the said Frank F. Brightly obtained judgment upon January 25, 1896, for want of a sufficient affidavit of defense, which judgment was afterwards reversed by your honorable court and a procedendo awarded; said case being reported in 3 Pa. Superior Ct. 442.
    That your petitioner, owing’ to the fact that he was not advised of the action of the court in making absolute a rule for judgment for want of a sufficient affidavit of defense, failed to take out an appeal from the same within twenty-one days thereafter, and on the 17th day of February, 1896, a writ of fieri facias was issued by the plaintiff and defendant’s property was levied upon.
    That thereupon your petitioner paid the plaintiff his total claim, attorney’s fee and writ, aggregating $253.41, and thereafter paid costs of stay of execution, sheriff’s costs and costs of appeal to your honorable court, aggregating $272.91.
    That your petitioner is advised and believes that the reversal of said judgment by your honorable court entitles him to an order of restitution under the Act of June 24, 1895, P. L. 212, 219, wherein it is provided, that if money is collected upon execution issued upon a judgment or decree which is afterwards reversed, the Superior Court may make an order of restitution.
    Your petitioner, therefore, prays your honorable court to make an order of restitution, directing the said F. F. Brightly to repay your petitioner the said sum of $272.91.
    No answer was filed.

      F. F. Brightly, P. P., submitted the following argument:
    The judgment in this case, in the court below, was for the plaintiff, for want of a sufficient affidavit of defense. This judgment has been reversed by this court, on the ground that the affidavit was sufficient to send the case to a jury,'and a procedendo was awarded. The defendant now files an affidavit that he has paid the money to the plaintiff, and asks this court to make an order of restitution.
    In reply to this petition, it is respectfully submitted by the plaintiff that there is nothing on the record of this case to show that the money was made by the plaintiff upon his execution. The record (to be found in full at'the end of this paper-book) so far as it relates to the execution,is as follows:
    “ Feb. 17,1896, fi. fa. exit, returnable Monday, March 1,1896.
    “Stayed.
    “ Feb. 24, 1896, appeal of defendant to Superior Court from judgment of Jan. 25, 1896, filed.”
    The record simply shows an execution issued and stayed, and there is nothing to base an order of restitution upon. An affidavit of the defendant that he paid the money, under the stress of execution, is not sufficient to base an order of restitution upon, in the absence of a record showing that fact. Whether he paid the money under the pressure of an execution, and is entitled to recover it back, is always one of fact, where the record itself does not show such a payment, and the plaintiff would be entitled to have that question settled by a jury, upon a suit by the defendant to recover the money back.
    But the judgment in this case, reversing the judgment of the court below, is not a final judgment, it is simply a reversal of the judgment and an award of a procedendo. The case will proceed in the court below, and, if this order is made, and the plaintiff recovers, he will be put to another execution for his money, and may lose his lien and never again be able to recover the money. On the other hand, if the plaintiff fails before the jury, it will then be for the defendant to make his motion for restitution (if ever maintainable under this record), orto bring suit against the plaintiff to recover back the money paid, and to show that it was paid under the stress of execution, and this will always be a question of fact, as the record shows execution issued February 17, 1896, and stayed, and defendant in his paper-book claims he paid the money on February 21, 1896. This case would bear an entirely different aspect, if the record showed a sheriff’s return to the writ of execution, that he had collected the money from the defendant, and paid it to the plaintiff. The defendant’s affidavit, in fact, does not claim that he paid the money to the sheriff; it simply sets forth a payment to the plaintiff himself. '
    No special reason is shown why an order of restitution should now be made, and there is no reason shown why the parties should not remain in statu quo, until a final disposition of this case.
    The Act of June 24, 1895, sec. 8, P. L. 212, does not make an order of restitution a matter of right, but simpty provides that “ if the money is collected .... upon execution issued upon a judgment or decree which is afterwards reversed, the Superior Court may make an order of restitution.”
    Restitution is not a matter of strict right. It has been refused upon the reversal of a judgment: Kirk v. Eaton, 10 S. & R. 103; and upon the setting aside of an execution: Baker v. Smith, 4 Yeates, 185. See also Ranck v. Becker, 13 S. & R. 41, and many other cases to the same effect.
    All of which is respectfully submitted.

      II. W. Page, for petitioner in reply submitted the following argument.
    — Had the defendant paid the sheriff before his property was sold, he would unquestionably have been entitled to an order of restitution: Whitesell v. Peck, 176 Pa. 170.
    So, if he had paid the sheriff after the fieri facias had issued, but before a levy was made on his property, it could not be successfully contended that payment was voluntary, and he would be entitled to restitution: Benscotter v. Long, 167 Pa. 595; Travellers Insurance Co. v. Heath, 95 Pa. 333.
    No authority sustains the plaintiff’s position, that to entitle defendant to an order of restitution the payment must be made to the sheriff and by him remitted to the plaintiff and not to the plaintiff directly. Such a distinction is repugnant alike to sound reason, moral sense and common justice. Money is collected upon execution under the act of June 4, 1895, when it is paid by reason of the execution having been issued and to avoid a sale under the levy.

      Plaintiff’s position that an affidavit by defendant that he paid the money under stress of execution is not sufficient to base an order of restitution upon in the absence of a record showing that fact, is not sustained by any authority and is clearly inconsistent with every principle of sound pleading. By not filing an answer plaintiff admits the truth of the essential fact averred in the petition that payment was made after levy to prevent a sale. The case is analogous to an action of' assumpsit where the defendant has failed to file an affidavit of defense, or to a bill in equity whose essential averments the respondent has not denied in the answer. Had the defendant (McAleer) brought an action of assumpsit to recover back the money paid, and averred in his statement the facts substantially set forth in the petition for restitution, and had the plaintiff (Brightly) filed an affidavit of defense setting forth the fact that the record merely showed that the fi. fa. was stayed without denying the essential averment in the statement that the defendant’s property was levied upon and that the claim was paid to avoid a sale, surely such affidavit would be insufficient to prevent judgment. There would, therefore, seem to be nothing to send to a jury.
    As the case now stands, plaintiff has succeeded in getting possession of money belonging to defendant to which he has no title and which, if there should be a verdict for the defendant, the latter might lose entirely by reason of the plaintiff’s insolvency, whereas, if an order of restitution is made, the plaintiff will be in no worse position than he would have been had the affidavit been held sufficient by the court below, or had the appeal been taken within twenty-one days after judgment was entered.
    No special reason need be shown why the order of restitution should be made; in the absence of special circumstances a party is entitled to restitution as a matter of course on the reversal of a judgment.
    In Ranck v. Becker, 13 S. & R. 41, Chief Justice Tilghman said : “ The general rule must be that on the reversal of a judgment the plaintiff in error is entitled to restitution.”
    In Coughanour v. Bloodgood, 27 Pa. 285, Chief Justice Lewis said: “ Restitution is in general a matter of right on the reversal of a judgment, but where the reversal is only of a judgment of revival or of an execution, and the original judgment remains unreversed, restitution is discretionary.”

      April 20, 1897:
    Such was the case of Kirk v. Eaton, 10 S. & R. 103, cited, by plaintiff, in which a judgment on a sci. fa. sur judgment was reversed, leaving the original judgment in full force ; and restitution was refused because the defendant was in bad circumstances, and the money was ordered to be paid into court.
    So, also, Baker v. Smith, 4 Yeates, 185, cited by plaintiff, was a case where execution was set aside, leaving the original judgment untouched; and restitution was refused because a probable if not a certain loss would thereby be incurred by the plaintiff.
    In the case at bar the original judgment itself has been set aside by its reversal, and unless restitution be ordered the plaintiff will be allowed to retain money to which he has no right; and, as no suggestion of the defendant’s insolvency has been made, it would seem to be a case where no injustice would be done by making an order of restitution, and grave injustice might result from its denial.
   Per Curiam,

Restitution ordered as prayed for.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    In the Matter of the Assigned Estate of John W. Scott. Appeal of Joseph D. Scott.

      Assignee's sale — Proceedings for summary possession — Act c/1876.
    Ail order for a resale of property sold by an assignee for creditors having been made, it is no defense to a summary action by the assignee’s vendee to recover possession under the Act of February 17, 1876, P. L. 4, for the terre-tenant to set up an alleged equitable title based upon possession secured under the former sale which had been set aside, on which it was alleged that a part of the purchase money paid by terre-tenant had not been returned.
    Argued March 16, 1897.
    Appeal, No. 42, March T., 1897, by Joseph D. Scott, from definitive decree of C. P. Huntingdon Co., directing delivery of possession of property sold by assignee for benefit of creditors.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Proceedings under third section of the act of February 17, 1876, for recovery of possession of land sold by the assignee for benefit of creditors. Before Lohgenecker, P. J., of the 16th judicial district specially presiding.

      April 19, 1897:
    John W. Scott made an. assignment for the benefit of creditors in August, 1890, to Isaac Taylor. On the 23d of April, 1891, the assignee sold to Susan J. Scott certain real estate belonging to the assigned estate and delivered possession of the same. In 1893, Taylor was discharged from the trust and George W. Reed appointed assignee.
    The assignee, Reed, tendered the deed to Joseph D. Scott, to whom the previous sale had been confirmed, demanding, however, the entire amount of purchase money with interest, to wit, 1485. On February 21, 1894, the confirmation of the sale was revoked and sale set aside and resale ordered: Scott’s Appeal, 176 Pa. 49.
    On March 21, 1894, the premises confirmed to Joseph D. Scott, together with two adjoining tracts were sold to J. A. McClain, which sale was confirmed.' In October, 1896, J. A. McClain filed his petition for summary possession under the act of February 17, 1876.
    The appellant, Joseph D. Scott, filed an answer alleging payment by him of a portion of the purchase money, and setting up an equitable title based upon the absence of any provision of the court for return of the purchase money by him as a condition precedent to the revocation of the sale to him and the confirmation of the sale to. McClain.
    The court below decreed delivery of possession as prayed for.

      Errors assigned were (1) Entering the decree ordering delivery of possession; (2) in holding that the act of February 19, 1876, applied to the case ; (3) in holding that the decree of the Supreme Court in Scott’s Appeal, 176 Pa. 49, determined the rights of the parties, in the proceeding.

      II. W. Petrikin, for appellant.

      W. II. Woods, with him J. S. Woods and II. A. Lovell, for appellee.
   Opinion by

Smith, J.,

This proceeding was instituted under the third section of the act of February 17, 1876, for the purpose of enabling the purchaser of real estate from an assignee for the benefit of creditors to obtain possession. The sale of the property by the assignee under an order of the court of common pleas and its due confirmation are admitted. The purchaser having fully complied with the terms of the sale and received his deed, demanded possession of the premises which the appellant refused to surrender, whereupon this action was begun and, after hearing, the court ordered that possession be given to the purchaser.

The appellant, who secured possession under a sale by a former assignee, which was afterward set aside by the court because the terms had not been complied with, resists this proceeding on the. ground that having paid part of the purchase money before his purchase was annulled, and which has not been refunded, he thereby acquired an equitable right to the property, and therefore contends that under the circumstances the proceeding under the statute cannot be maintained, and that the appellee should be remitted to his action of ejectment. In view of the fact that the decrees of the court below setting aside the sale to the appellant and directing a resale of the property, were both affirmed by the Supreme Court (Scott’s Appeal, 176 Pa. 49), it would seem idle to argue that the statutory remedy does not apply here. The appellant’s possession, so far as disclosed by the record, was based on an inchoate title and upon its annulment his right of occupancy ceased. Nothing further was offered in support of his claim or to defeat the purchaser’s right to secure possession through this proceeding.

The third section of the act of 1876, is designed to enable purchasers of real estate from assignees to get possession without undue delay. Its purpose is to give effect to deeds of assignment by empowering the courts to order that possession be given to purchasers who have complied with the terms of sale; but the proceeding under it does not involve or affect the title to the land: Lutz v. Kegerreis, 176 Pa. 164. The appellant’s claim to possession being based on a proceeding founded upon the same deed of assignment under which the appellee acquired title, the court below correctly held that such possession was within the purview of the enactment.

The assignments are overruled and the decree is affirmed, the costs to be paid by the appellant.


author: Per, Curiam,

text:
    Overseers of the Poor of Fermanagh Township v. Overseers of the Poor of Fayette Township, Appellants.

      Poor law — Findings of court beloio.

    Where the findings of fact of the court of quarter sessions in the matter of removal of a pauper are fully warranted by the evidence, such findings and the decision of the court based thereon will not be disturbed by the appellate court.
    Argued March 11, 1897.
    Appeal, No. 25, March T., 1897,' by defendant, from order of Q. S. Juniata Co., September Sessions, 1895, No. 1, discharging order of removal.
    Before Rice, P. J., Wiliaed, Wickham, Beavee, Reedee, .Oelady and Smith, JJ.
    Affirmed.
    Appeal by the overseers of the poor of Fayette township poor district from an order removing Stewrart Wilson Page, a pauper, to the poor district of Fayette township, Juniata county from the poor district of Fermanagh township, Juniata county, and upon opinion and decree sustaining appeal in the court below and discharging order of removal. Before Lyons, P. J.
    It appears from the opinion of the court below that Stewart Wilson Page, a minor child of Jacob S. Page, became a charge upon Fermanagh township. The pauper is the grandson of Jacob Page who owned a farm in Fayette township where he lived at the time of the birth of Jacob S. Page, who thus had a settlement in Fayette township by birth; he also gained a settlement for himself in said township.. It was claimed, however, that Jacob S. had obtained a settlement in Milford township before his minor son became a charge upon Fermanagh township. That said settlement was gained by a series of leasings. As to the leasing of one house covering a period of five months the controversy arose over the alleged leasing of the second house known as the McCullough house, the use of which was accorded to Jacob S. as part payment of his services as a farm laborer. He subsequently moved into another house known as the Dixon house.
    In regard to these facts the court below, Lyons, P. J., found as follows: “ Under this state of facts was there a leasing of the McCullough house as contemplated by the act of assembly? The contract between Stewart McCullough and Jacob S. Page, was very similar to that in Beaver v. Hartley, 11 Pa. 254. Page was to have, according to his own testimony, $12.00 per month, and house rent and fire wood free; and according to the testimony of W. H. Souder, $10.00 per month, and house and fire wood, the use of a cow and some potatoes that were in the ground. The monthly wages were therefore not the only consideration for his labor, but the occupancy of the house was a part of it. And Page testifies that if he had not had the use of the house he would have wanted at least $2.00 per month more wages. He further testifies that, this arrangement was to last until spring. He also testified that after the death of Stewart McCullough he made a new contract with his daughter “ Nelle,” by which he was to get $12.00 per month, house rent and fire wood until after the sale of the personal property of Stewart McCullough, deceased. The testimony shows that Stewart McCullough died November 30, 1890, and 'that the personal property was sold December 23, 1890. That from that time on nothing was said about rent, but he was to live in the house and take care of the property. This was a farm house which the former tenant had on account of a disagreement between him and his landlord, vacated and left empty, and it was important to have the house occupied by someone who would take care of the barn and the other outbuildings thereon. This according to the evidence was worth the rent of the house, and the rent of the house was worth more than $10.00 per annum, and the rent was paid by the services of Jacob S. Page.
    Occupancy of a tenement as a reward for services will gain a settlement: Burns’ Justice, 519; Beaver v. Hartley, 11 Pa. 254; Laporte Borough v. Hillsgrove township, 95 Pa. 269. The amount of the rent is not material if the tenement be of the yearly value of $10.00: Burns’ Justice, Pa. 522. The testimony does not show how long Page lived in the Dixon house, but it was at least six months. ' As J. W. Stimmel testified that he paid $9.50 and “ did not pay rent for the whole time he was in there.”
    The following are therefore found as facts :
    1. That Jacob S. Page, bona fide, took a lease of the Maurice Leonard house at the rent of $16.00, per annum, and dwelt therein from about April 1, A. D. 1890, until about September 1, A. D. 1890, and paid $8.00 rent.
    2. That Jacob S. Page took a lease of the Stewart McCullough farm house and dwelt therein from the time he moved from the Maurice Leonard house, about September 1, 1890, until about the 15th day of March, 1891, when he moved into the Dixon house. That said house was of the.yearly value of at least $24.00, and that he paid the rent of said house in services.
    3. That he took a lease of the Dixon house from February 17, 1891, to April 1,1892, at the rent of $24.00 to be paid in equal monthly instalments of $2.00 each, and dwelt therein more than four months and paid $9.50 rent.
    4. That he dwelt more than one year in these three houses, continuously, that each were of the Jrearly value of more than $10.00, and that he paid more than $10.00 rent.
    5. That all of these houses are in Milford township.
    6. That Milford township is the last place of legal settlement of the. said Jacob S. Page, he having gained a settlement in Milford township before liis son, Stewart Wilson Page, became a charge upon Fermanagh township.
    CONCLUSIONS OK LAW.
    1. That Jacob S. Page gained a settlement in Milford township.
    2. That Milford township is the last place of legal settlement of his minor son, Stewart Wilson Page.
    3. That the order of removal in this case must be discharged.

      Errors assigned were to the findings of fact and conclusions of law and to points and to the order discharging the order of removal.

      George L. Hower and J. Ilotuard Neely, for appellants.
    — “In order to acquire a settlement in a given township under clause 3, of the Poor Law of June 13, 1836, sec. 9, P. L. 539, a person must comply strictly with all the requirements thereof. He must therefore (1) take a lease of premises within the township, (2) which premises must be of the yearly value of ten dollars, (3) he must dwell on said premises for one whole year, and (4) must pay the rent, of the same: ” Beaver Township v. Hose Township, 98 Pa. 636.
    April 19, 1897:
    '• A possession of premises for two months without paying rent, cannot be tacked, on to a possession for ten months of other premises paying more than ten dollars rent, so as to make a continuous dwelling in order to secure a settlement under this clause.”
    “ All contracts rest upon the mutual and accordant wills of the parties. A lease cannot be fairly implied from circumstances and conduct which show that none was intended by the parties: ” Walker Overseers v. Marion Overseers, 148 Pa. 1; Overseers v. Milford Overseers, 12 C. C. R. 321.

      Will L. Jfoopes, for appellee.
   Per, Curiam,

The decision of this case by the court below based on its findings of fact and conclusions of law, is fully warranted by the evidence. Hence it becomes unnecessary to consider the sufficiency of the exceptions taken in the court below. The appeal being without substantial merit, it is not material whether the exceptions are adequate in point of form or specific character.

The decree of the court below is affirmed.


text:
    Overseers of the Poor of Fermanagh Township v. The Overseers of the Poor of Milford Township, Appellants.

      Poor law — Presumption as findings of facts by court below.

    In cases arising out of the removal of paupei's the appellate court will presume that the findings of fact by the court of quarter sessions are correct provided they are warranted by the evidence. This g'eneral rule is only departed from where manifest error has been committed.

      Evidence — Self contradiction of witness.

    Self contradiction by a witness affords no ground for rejecting his testimony in toto; it is for the court below, in pauper removal cases, to determine the weight to be given to his testimony.
    Argued March 12, 1897.
    Appeal, No. 35, March T., 1897, by defendants, from findings and decree of Q. S. Juniata County, December Sess., 1895, No. 1, upon appeal from the order of removal of Mahala Carter and children.
    April 19, 1897:
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Appeal from order of removal of Mahala Carter and children. Before Lyons, P. J.
    An order of removal was had by the Overseers of Fermanagh Township Poor District to remove Mahala Carter, wife of Oliver Carter and her three children, Eva, Herbert and John to the poor district of Milford township. From this order of removal the Milford township overseers appealed.
    The court found that Oliver Carter had a settlement in Milford township at the time of his birth and that he never gained a settlement elsewhere; that his wife Mahala therefore had a settlement in said Milford township ; that of the three children of Mahala one only, Herbert, was a son of Oliver. The order of removal was confirmed as to Mahala and Herbert Carter and discharged as to Eva and John.
    Counsel for Fermanagh township presented points of fact and law, some of which were affirmed and some refused.
    The only exception was as follows : “ And now, September 12, 1896, counsel for Milford township excepts to the findings of facts, answers to points and decree, and at his instance this bill is sealed.”

      Errors assigned were to the answers to points and to decree of the court holding that Mahala and Herbert Carter had a legal settlement in Milford township, and in not discharging the order of removal.

      B. F. Burchfield, for appellants.

      George L. Hower and J. Howard Neely, for appellee.
   Per Curiam,

The findings of fact by the court of quarter sessions in this class of cases are, on appeal, presumed to be correct, provided they are warranted by the evidence. This general rule is only departed from where manifest error has been committed. The testimony submitted in this case fully sustains the findings of fact by tbe learned judge below, and his conclusions of law necessarily follow. The selfcontradiction by one of the witnesses affords no ground for rejecting his testimony in toto; it was for the court below to determine the weight to be given to his testimony under the circumstances. Nothing in the case requires review at our hands, and the decree of the court below is affirmed.


author: Wickham, J.,

text:
    The City of Chester v. The Chester Traction Company, Appellant.

      Municipal law — Ordinances.
    All municipal ordinances must be reasonable; when unreasonable they are void.

      Municipal law — Unreasonable ordinance — Street railways.

    An ordinance, requiring every street railway company using any street to cause the same to be sprinkled, for the distance of three feet six inches, each way, from the center of the railway track, so that no dust will be raised by a passing ear on said tracks, and providing for a penalty of $25.00 for each breach of its provisions; $25.00 a day for a continued violation, and investing the municipality with power to stop the running of the cars in default of payment of the penalty, is unreasonable and void.
    Argued Nov. 17, 1896.
    Appeal, No. 31, Nov. T., 1896, by defendants, from judgment of C. P. Delaware Co., Sept. T., 1895, No. 227 in favor of plaintiff on case stated.
    Before Rice, P. J., W illard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Case stated. Before Clayton, P. J.
    The facts are sufficiently indicated by the opinion of the court.
    Judgment entered on case stated in favor of the plaintiff for $100. Defendant appealed.

      Mrror assigned was entry of judgment on case stated in favor of plaintiff.

      W. B. Broomall, for appellant.

      A. A. Ooehran, for appellee.
    — Under the Act of May 14,1889, P. L. 211, no street passenger railway can be constructed within tbe limits of any city without the consent of its local authorities. This act provides that such company shall be subject to reasonable regulations for the protection of piublic travel on any street so occupied as shall be required by any municipality.
    April 26, 1897:
    A railway company accepting a grant accepts the special privileges upon the implied condition that it holds them subject to a reasonable and necessary exercise of the general powers of the municipality: Railroad Co. v. Phila., 9 Phila. 563.
    A railroad company can be compelled to erect safety gates and provide watchmen at streets which the tracks of the railroad cross: Borough v. Canal Co., 1 Dist. Rep. 701.
    In the exercise of the police power the municipalitjr can regulate the speed of trains: Penna. Co. v. James, 81* Pa. 194.
    A railroad company may be required by ordinance to remove snow and to reduce it upon the adjacent roadway to such á level as to make it convenient for all travel: Railroad v. Mayor, 49 Hun, 126.
    The city of Chester had the right to expect the defendant company to aid in the improvement of its streets: Pittsburg v. Railway Co., 80 Pa. 72.
    And under its police power and authority over streets, a municipality may require street railway companies to keep iheir tracks well watered: Railway Co. v. Savannah, 77 Ga. 731; 2 Dillon on Municipal Corporations, 866.
    A railway company is bound to keep pace with the progress of the age: Phila. v. Railway, 143 Pa. 444.
    The limit to the exercise of the police power in these cases must be that such regulations have reference to the comfort, safety or welfare of society: Cooley, Constitutional Limitations (6th ed.), 710.
   Opinion by

Wickham, J.,

It appears, by the case stated, that the appellant company is a corporation duly organized and operating under the Act of March 22, 1887, P. L. 8, which provides for the incorporation and regulation of motor power companies, for operating passenger railways, by cables, electrical, or other means. It occupies and uses certain avenues and streets in Chester, a city of the third class, and as is set forth in the statement of facts, agreed on and filed, its cars “while passing along the above mentioned streets and avenues raise dust, which is collected upon the said streets, into the air, producing inconvenience and discomfort to persons passing along the said highways and to persons occupying residences bounding thereon.”

For the purpose of preventing such inconvenience and discomfort, the city authorities enacted an ordinance, requiring every street railway company using any street, to cause the same to be sprinkled, for the distance of three feet six inches, each way, from the center of the railway track, “ so that no dust will be raised by a passing car on said tracks.” The ordinance provides a penalty of $25.00 for each breach of its provisions and $25.00 per day for a continued violation. It is further ordained, that if the offending company shall fail to pay the penalties imposed, the proper officers of the city shall have power to stop the running of all cars operated by such company.

The question presented for our decision is, whether, under the circumstances of this case, the ordinance, above briefly epitomized, is a reasonable exercise of power on the part of the city of Chester. That portion of it which authorizes the stoppage of the cars for the failure to pay penalties is so clearly unreasonable and oppressive as to be void, beyond all controversy: City of Harrisburg v. Passenger Ry. Co., 1 Pearson, 298. To enforce it would amount to a forfeiture of the rights and franchises of the appellant and practical destruction of its property. As well might the city direct the tearing down of one’s house or the confiscation of all his estate, for inability or refusal to pay a fine, imposed for violating a municipal by-law.

But as the ordinance may stand without the provision we have just considered, we cannot stop here. A little thought will show that the burden imposed by this regulation is much greater than at a first view may appear. It is as operative in midwinter as in midsummer. Oftentimes there occur in our climate, in December, January and February, successive periods, each consisting of many days during which, although the temperature may be far below the freezing point, the dust on largely traveled city streets is almost as annoying as it usually is in J uly and August. The sprinkling of a seven foot strip, without more, and there is nothing to indicate that the city intends to sprinkle the rest of the street, would have to be frequently repeated, day and night, in order that “no dust” would be raised. The water, at the times mentioned, would freeze as fast as it was showered on the street, the winds, including the suction created by the moving cars, would quickly bring another coating of dust, requiring another sprinkling. How long would it be before ice would form to such an extent, in the middle of the highway, as to make the company liable to indictment for causing and maintaining a dangerous nuisance? The ordinance requires so much, and its enforcement at certain times of the year would produce such results, that, on these grounds, Ave deem it unreasonable and therefore void.

■ "We refrain from deciding whether or not an ordinance requiring sprinkling by a street raihvay company at proper times and seasons, and making due allowance for scarcity of water in cases when' and where such scarcity might exist, would be a valid exercise of authority by a municipality possessing no greater or other powers than those shown to be vested in the •appellee here. It is proper, however, to say that, after an examination of all the authorities cited, as well as others not called to our attention by counsel, the right of the appellee to pass 'even such an ordinance as the one last mentioned is not free from doubt. But, on this point, Ave express no binding opinion.

It is well to mention in this connection, that in the case stared there is an absence of facts which might have an important bearing on our decision, if we were to pass on the above question. For instance, the length of the appellant’s tracks; the width of the streets occupied; the width of the driveways; whether or not they are paved, and, if so, in what manner; to what extent the tracks are laid through closely built-up parts of the city, and hoAV far, if at all, they extend through the thinly settled portions; and the cost and ease or difficulty of obtaining an adequate water supply, are all matters which should have been set forth, but concerning which the record is entirely silent. In preparing a case stated, it is better to err by incorporating too many facts than too few. The court cannot add to the facts agreed on, and therefore great care should be exercised to clearly and fully set forth everything that may be necessary to a fair and intelligent consideration of the case.

The judgment of the court below is reversed, and judgment is now entered, on the case stated, in favor of the appellant, with costs.


text:
    Commonwealth of Pennsylvania v. John L. Cowan, Appellant.

      Criminal law — Forgery—Evidence.
    On an indictment for forgery, a card found in the defendant’s office upon which were certain words and figures in his handwriting tending to show experiments in simulating the instruments forged, is admissible in evidence, the issue being whether defendant altered the notes alleged to have been forged, with or without the consent of the indorser.

      Evidence — Contradiction of witness — Ground necessary to be laid.

    Where a question has for its purpose to lay ground for the contradiction of the witness it is within the sound discretion of the trial judge to exclude the question unless the witness is first examined as to the subject-matter, time, place and person involved in the supposed contradiction.
    Argued April 13, 1897.
    Appeals, Nos. 69, 70 and 71, April T., 1897, by defendant, from judgments of Q. S. Allegheny Co., June Sess., 1896, Nos. 152, 230 and 231, on verdicts of guilty. Before
    Bice, P. J., Willabd, Wickham, Beaveb, Beedee, Oblady and Smith, JJ.
    Affirmed.
    Indictment for forgery.
    The eases appear to have been argued together. The defendant was indicted on three separate bills for forging or altering certain promissory notes drawn by the firm of which he was a member and indorsed by William Ahlers.
    Verclict of guilty found on three bills, and defendant sentenced thereon. Defendant appealed.

      Errors assigned were (1) in admitting Exhibit No. 15, under the following questions, answer and bill of exceptions, to wit: “The defendant, John L. Cowan, being a witness under cross-examination was shown a business card, by counsel for the commonwealth, being the business card of W. G. Cowan & Son, on the back of which were certain figures, and being asked if the writing and figures on the back were in his, the defendant’s handwriting, and admitting they were, the counsel for the commonwealth in rebuttal for the commonwealth made the following offer: Counsel for the commonwealth offers in evidence exhibit No. 15, being a card which Mr. Cowan admits to be in his handwriting and which Mr. Ahlers states was found in Mr. Cowan’s office. Objected to as not rebuttal, as incompetent and irrelevant, and as having nothing whatever to do with case.”
    The Court: What is that intended to rebut ?
    Mr. Patterson: It is intended to rebut this. Mr. Cowan, the defendant, testified that he was authorized to raise three notes of dates November 29, and another note that Crawford got of an earlier date, from $150 to a higher sum, one of them up to $750, and the other to $950. Now, if he was authorized to do that, there was no need for him to practice so as to artfully change the one into a seven, and a nine to another figure. And I say that that card shows on its face that this man, who says he was authorized to raise these notes, was practicing to enable him to do the very thing which Mr. Alher authorized him to do.
    The Court: Well, we will admit it. Bill of exceptions sealed for defendant.
    (2) In refusing to permit counsel for defendant to ask the following question in cross-examination, on the following question and bill of exceptions.
    “William Ahlers, the prosecuting witness, being under cross-examination regarding his interest and sincerity in the prosecution of John L. Cowan, and his interest and sincerity in the extradition of John L. Cowan to Allegheny county from Guatemala for trial, was asked the following question by counsel for defendant. Question: Didn’t you tell a member of this bar within two weeks almost within the neighborhood of where, we sitj the whole thing was a blunder, bringing Cowan back ? ”
    Mr. Patterson: I object, unless they name the member of the bar and the time and place, for the purpose of contradiction and agree to follow it up with contradiction.
    The Court: You must name the person, time and place. Objection sustained. Bill sealed for defendant.

      Marrón $ McQ-irr, for appellant.
    — No evidence can be admitted which does not tend to prove or disprove the issue joined: 3 Russell on Crime, p. 279; Wharton, Crim. Ev. sec. 24.
    “ If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the guilt:” Shaffner v. Com., 72 Pa. 60.
    May 3, 1897:

      D. F. Patterson, with him John <7. Haymaker, district attorney, Clarence Burleigh and Carroll P. Davis, for appellee.
   Opinion by

Smith, J.,

The defendant was convicted upon three indictments, each charging the crime of forgery, and was sentenced to pay fines and undergo imprisonment in the Allegheny County Workhouse for periods of two years, the imprisonment to be concurrent in each case. In. view of the fact that the liberty of a citizen is involved, we overlook the irregular manner in which the record is made up, and will pass upon the assignments of error.

The first assignment complains of the admission in evidence of a card, upon which were certain words and figures in the defendant’s handwriting, which was found in his office after his flight to avoid arrest. A brief reference to the facts as given in the paper-books will serve to demonstrate the purpose of this card as evidence. On November 28,1895, the defendant wrote to William Ahlers, the prosecutor, saying that W. G-. Cowan & Son, the defendant being the “son,” owed D. Wheeler $600, and that the latter would give three, four, five and six months, time on the debt if the defendant would furnish a good indorser; he inclosed four notes of his firm, filled up by himself, each for $150, payable at the times indicated to the order of the prosecutor. Mr. Ahlers indorsed the notes, and remailed them to the defendant as requested. Three of these notes were raised from |150 to $750, and turned over by the defendant to Mr. Wheeler, who had them discounted by the First National Bank of Reynoldsville. The prosecutor said he had also indorsed two other notes for W. G. Cowan & Son, under date December 19,1895, one at two months for $150, and the other at three months for $175. Soon after the maturity of the two months’ note, the prosecutor received notice of the protest of a note of W. G. Cowan & Son, bearing his indorsement, for $750. Knowing that he had not indorsed a note for this amount, the prosecutor wrote to the bank for a statement of the notes held by it with his indorsement, saying that he had not indorsed a $750 note for anybody. In reply he was informed that the bank held his indorsement on six notes of W. G. Cowan & Son, and John L. Cowan, amounting in the aggregate to $6,125, as follows: Note dated December 10,1895 at two months for $750;’ another of the same date at three months for $775 ; a note dated December 10,1895 at four months for $2,350, and three notes dated November 29, 1895, at three, four and five months, respectively, for $750 each. The prosecutor had an interview with the defendant in presence of Mr. Wheeler on February 28, 1896. Immediately thereafter, the defendant fled from the state, but was captured April 23, 1896, on board a steamer in the harbor of Guatemala, and brought back and put on trial. On the notes dated December 10, 1895, no change was apparent upon ordinary inspection, and the defendant testified that none was made. But alterations were manifest both in words and figures on the three notes upon which these prosecutions were based; and the defendant admitted having made them-, and asserted that he did so after obtaining the verbal consent of the prosecutor, over the telephone. Upon this alleged authority the defense was based, and the defendant’s testimony was relied on to establish it. He admitted that the writing and figures on the card were made b}r him, and he also asserted that he had changed the amount of another note on which the prosecutor was indorser, from $150 to $950, with the latter’s consent. The prosecutor testified that he never author-teed the defendant to make any alteration in any note after indorsement, and that he had never indorsed paper for the defendant or his firm, leaving a blank for the insertion of the amount. Fie also denied the allegation of the defendant that one of the $150 notes dated November 29, 1895, had been returned unused.

Under this conflicting testimony, it was for the jury to determine whether the alterations were made with the prosecutor’s consent. And how far, if at all, the letters and figures on the card tended to show that the defendant had been practicing, in order to so expertly change the amounts of the notes as to avoid detection, according to the contention of the commonwealth, was likewise for the jury to decide. The substance of the reason given in support of the offer, so far as pertinent to the issue, is that the card shows that the defendant was practicing “ so as t*o artfully change the one into a seven,” and as it is admitted that' the notes were altered by the defendant from $150 to $750, these changes necessarily involved the substitution of the word “ seven ” for the word “ one ” so as to conform the notes to their altered condition. The card, therefore, if showing’ this, was not without some relevancy to the main question. That it may have contained other marks and characters' not material to the issue would not preclude its admission. If, as he alleged, the defendant had authority to make the changes, there would seem to be no occasion for practice that they might be made so skillfully as to be indiscernible. If, however, no authority was given, there might be reason for trying to so accomplish the work as to avoid detection. Whether the effect of the contents of the card was to corroborate the theory of the prosecution and to discredit that of the defense, was, as we have said, for the consideration of the jury, and under the circumstances it was not error to admit it. If, as contended, it but disclosed “ the aimless scribbling of an idle hand,” its admission could have done the defendant no harm.

The remaining assignment is to the effect that the court erred in sustaining an objection to the following question put to the prosecutor, William Ahlers, on cross-examination : “ Didn’t you tell a member of this bar within two weeks, almost within the neighborhood of where we sit, the whole thing was a blunder, bringing Cowan back?”

Objected to, “ unless they name the member of the bar, and the time and place, for the purpose of contradiction, and agree to follow it up'with contradiction.” The Court: “You must name the person, time and place. Objection sustained.”

To the professional mind the purpose of this question is well understood. Indeed, it may be said to have a fixed purpose in the law of evidence, namely: to lay ground for the contradiction of the witness if he should'deny having made the statement forming the subject of the inquiry, and thereby to affect his credibility. Formerly, where it was intended to impeach the credit of a witness by proof of verbal statements contrary to; his present testimony, the rule was imperative that the witness must first be asked as to the subject-matter, time, place and person involved in the supposed contradiction; otherwise no proof of such statements would be admitted: 1 Greenl., Ev. sections 462, 467; McAteer v. McMullen, 2 Pa. 32; Wright v. Cumpsty, 41 Pa. 102. Later, this rule has been so far modified as to leave its enforcement to the sound discretion of the trial court, subject to reversal if the discretion is abused: Walden v. Finch, 70 Pa. 460; Rochrock v. Gallagher, 91 Pa. 108. But the rule itself remains unshaken, and whatever may be said against it there is certainly no just ground for complaint because it has been observed. In the absence of any allegation to the contrary, the trial judge was justified in assuming that the purpose of the question was to lay ground for contradicting the witness, and in requiring that the rule in such cases be complied with. The strained effort here to give the question a different purpose is not supported by any sound legal reason, and is unwarranted in view of what took place at the time it was ruled upon. It was manifest that the court and the counsel for the commonwealth regarded the question as having been asked for the customary purpose, and the objection and the ruling were expressly upon this assumption. If the defendant’s counsel intended the question for any other purpose he should have then stated it to the court below, and shown, if he could, that for some exceptional reason the inquiry was not within the general rule governing the class of questions which a witness may not be required to answer unless his attention is called to the circumstances, so that he may thereby refresh his memory and explain what was formerly said, if he desires to do so. In the present case no attempt was made to show by other testimony that the witness had said what was impliedly ascribed to him by the question.

The judgment of the court below in each case is affirmed, and it is now ordered that John L. Cowan, the appellant, be remanded to the custody of the keeper of the Allegheny county workhouse, there to be confined according to law for the residue of the term for which he was sentenced and which had not expired on the 10th day of August, 1896, and that the record be remitted to the said court with instructions to carry this order into effect.


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    James Crawford v. Edward Wittish and John Graebing, Jr., partners, doing business as Wittish & Graebing, Appellants.

      Practice — Superior Court — Appeals—Charge of the court — Absence of points.

    Where a charge, in its general terms, was well adapted to the issues raised, and where the contention is unwarranted that only one side was presented, it is too late to complain, on appeal, of one omission in the charge concerning particular phases of the evidence, when no points were presented calling for specific instructions or asking the court to rule upon the testimony as a whole.
    Argued April 12, 1897.
    Appeal, No. 4, April T., 1897, by-defendants, from judgment of C. P. No. 1, Allegheny Co., March T., 1893, No. 512, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover money due under alleged parol contract. Before Stowe, P. J.
    It appears from the evidence that the plaintiff brought action to recover the - sum of $507.42 with interest from February 1, 1889, upon an alleged parol agreement between him and defendants by which, in consideration of the services of the plaintiff in having defendants employed as real estate brokers in the sale of certain real estate, and in consideration of the assistance of the plaintiff in the sale of said property, the said defendants' were to pay plaintiff one third of a commission of 2$. The alleged agreement purported to be made between plaintiff and Wittish and the partnership was alleged between Wittish and Graebing. Both the agreement and the partnership were denied by Wittish and Graebing.
    The court left the question to the jury whether there was a partnership and whether there was any agreement, in an oral charge which is the subject of the defendants’ assignment of error.
    Verdict and judgment for plaintiff for $428.04. Defendants appealed.

      Error assigned was the following charge by Stowe, P. J.
    “ The first question is, were these parties engaged in a general partnership? If they were, of course Graebing would be bound by the arrangement made by Wittish; and if one made a contract in relation to this sale involving the payment to the plaintiff of a one per cent commission the other would be bound by it, although he may have had no actual knowledge of it. But I presume you will have no trouble in coming to the conclusion that there was no general partnership between these parties; there is nothing to indicate that there was, except this declaration of Wittish at the time the thing was first talked about, that he Avas a partner, but that would be entirely consistent with his being a partner in separate transactions. He swears there was no general partnership, and Graebing swears there was no general partnership. You will perhaps come to the conclusion that there, was no general partnership. If not, then the question is, was there a partnership or an understanding between them that they were to participate in this particular transaction? If there was, then they are just as much bound, the one by what the other said, and did, as if they were general partners.
    “ Now, we have, according to the testimony, that Wittish said Graebing was his partner when this, was first talked about. That would not bind Graebing, because no man can make another his partner by his own declarations. If I would say one of you gentlemen was a partner of mine, it might bind me, it would not hold you. If that was the law any man could make another man his partner by saying so. But that having been said at the time, Mr. Crawford was given to understand that that was the arrangement between Wittish and Graebing, and Graebing having knowledge by participating in this transaction, and knowing that he was to be recognized as one of the parties in interest entitled to a commission in case this property was sold, if he subsequently went on and sold the property then they would be, in this particular transaction, partners, and they both together would be held liable for the arrangement that Wittish made in the first place.
    “ But we must be careful to note that this property was put in the hands of Wittish — we may say, if you choose, Wittish and Graebing — to make the case as strong as possible. When it was taken out of tlieir hands that terminated the transaction, and from that time on, without there was a renewal of this arrangement, neither Crawford nor Wittish nor Graebing had any claim upon anybody for commission, even if they went on and sold it afterwards, so far as the original contract was concerned. It was taken out of their hands; it was put in the hands of another agent. He failed to sell it, and now we come directly to the gist of this case.
    “Mr. Hendrie came in contact with Mr. Graebing. He made an arrangement for the sale of this property with Mr. Graebing. Now, the entire question there is, was Mr. Wittish interested in that transaction as between themselves, or had his connection with the whole thing terminated at the time that their right to sell the property expired under the first arrangement? Well, you heard what has been said upon the subject. Graebing says Mr. Wittish had not anything to do with it. Mr. Hendrie has no personal knowledge of Wittish’s connection with it. But that has nothing to do with the liability of the defendants to the plaintiff, whether Mr. Hendrie knew it or not. .The simple question is, what was the understanding between Graebing and Wittish at that time? Were they operating together? Did they go on in view of that original arrangement, by which Crawford was to have a one per cent commission, and did Graebing, in view of the authority given to him as being connected under the first arrangement with Wittish, sell the property ? If so, the plaintiff is entitled to his one per cent commission, just as much as if he had dealt directly with Wittish.
    “That c-overs the whole question. The first arrangement having been off, as it was entirely, does the evidence satisfy you that when the arrangement was subsequently made by which Graebing was employed by Mr. Hendrie to sell this property, Wittish (whether known or not to Hendrie), was a partner or interested in that transaction, and it was carried on in view of the original contract with Wittish and Crawford, by which Crawford was to have a one per cent commission? If the evidence leads you to that conclusion — and it is a matter entirely for yourselves — you ought to find a verdict for the plaintiff for the amount of his claim. If it does not satisfy you fairly and reasonably that such was the understanding and arrangement between the parties, the defendants are entitled to your verdict.”

      May 3, 1897:

      J. S. Ferguson, with him F. Gr. Ferguson and J. M. Friedman, for appellants.
    — " It is error to confine the jury to one view of the case where there is more than one which they should consider. So if the general effect of the charge has a tendency to mislead, it is cause for a reversal, though no particular portion of the charge be clearly erroneous: ” Peirson v. Duncan, 162 Pa. 187. The vice of the charge complained of in this case lies in the fact that no sufficient emphasis was put upon the undisputed evidence in the casé that Graebing had never become a party to the sale of the property at the time that Wittish was connected with it. It was only after Wittish had failed, and only after Drape had failed, and only after Graebing had personally solicited Hendrie, the executor, to make an arrangement with him to pay him commissions, that Graebing had anything whatever to do with it.

      John S. Foil, for appellee.
   Opinion by

Smith, J.,

The controversy in this case involved questions of fact which were determined by the jury in favor of the plaintiff. Whether the defendants were partners in effecting certain sales of real estate owned by the heirs of John Birmingham, deceased, and, if so, whether they had entered into an agreement with the plaintiff whereby he became entitled to one third of the commissions accruing from these sales, were essentially questions of fact for the jury, and were submitted by the learned trial judge in a careful charge that covered in a general way the important aspects of the case, without special requests by either party. In the absence of points calling for specific instructions, or asking the court to rule upon the effect of the whole testimony, it is now too late to complain of any omission in the charge concerning particular phases of the evidence.

The plaintiff testified that Wittish, representing himself as a partner of Graebing, agreed that the plaintiff should have for his services one third of the commissions coming to the defendants from the sales of the Birmingham lands. He also referred to subsequent interviews with the defendants respecting the property, and the services which he claimed to have rendered the defendants in the project. He was corroborated as to the existence of tbe partnership by Mr. Hendrie, the executor of the Birmingham estate, who, at the plaintiff’s request, had placed the property in charge of the defendants for sale. Mr. Hendrie testified that each of the defendants sold parts of the property, and that in January, when he paid Graebing $500 on account of commissions, the latter said he would withhold Wittish’s share until he accounted for money received by him in another joint transaction. He further testified that Graebing also then said “ if Wittish should ask anything about the commissions, just tell him the commissions will be settled at. the first of April.” This testimony of Mr. Hendrie is not contradicted by either of the defendants, although both of them were sworn as witnesses and denied that they had made any agreement with the plaintiff as he alleged.

With this conflicting testimony it would have been error on the part of the trial judge to withdraw the case from the jury. Viewing the evidence as a whole, the contention that the plaintiff’s side only was presented is unwarranted. Although the charge was general in terms, it was well adapted to the issues raised, without special reference to the testimony of either side.

There is no error disclosed by the record, and the judgment is therefore affirmed.


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    The Overseers of the Poor of Susquehanna Township Poor District v. The Overseers of the Poor of Monroe Township Poor District, Appellants.
    Poor law — Appeal—Order of removal.

    Where a decree for removal of paupers is in proper form and warranted by the law and the evidence, the appellate court will not consider the reformation of the decree upon grounds which could and should have been established, if capable of establishment, in the court below. The appellate court cannot be asked formally to announce through its decree that the litigation may be deemed only fairly begun at the point where a lawsuit usually ends.

      Poor law — Removal of pauper — Jurisdiction of removing justices.

    Two justices have no power to grant an order of removal from their own township, and when such inoperative order is quashed the two districts are left where they began.

      Argued March 10, 1897.
    Appeal, No. 20, March T., 1896, bjr defendants, from order of Q. S. Juniata Co., Sept. Sess., 1895, No. 9, dismissing appeal in the court below and confirming order of removal.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlady, JJ.
    Affirmed.
    Appeal by overseers of the poor of Monroe township from decree dismissing appeal in the court below confirming order of removal. Before Lyons, P. J.
    It appears from the opinion of the court below that Frederick Strawser and his family, consisting of his wife and three children, became a charge on Monroe township, Juniata county, in November, 1894. On the 18th of January, 1895, two justices of the peace, both of whom resided in Monroe township, granted an order of removal to the overseers of Monroe township which was by the said justices adjudged to be the'last place of legal settlement of Frederick Strawser and family. In pursuance of said order the overseers of Monroe township removed said paupers and delivered them to the overseers of Susquehanna township on January 80, 1895. On March 12, 1895, the order of removal was quashed for the reason that the two justices of the peace who had granted the order, both resided in Monroe township. On April 17,1895, the overseers of Susquehanna township applied for and obtained an order of removal for said paupers to Monroe township and delivered them to the overseers of said township. From this order the Monroe township overseers appealed.
    There was ho evidence to show that the pauper had ever gained a settlement in Monroe township in any way, nor is there any evidence to show that he gained a settlement in Susquehanna township.
    The court below dismissed the appeal and confirmed order of removal back to Monroe township, holding that the costs and expenses of maintaining the said paupers while a charge on Susquehanna township was upon Monroe township, because they became chargeable there, and that as between Susquehanna and Monroe the burden was on Monroe, an'd the order of removal was properly granted.
    The court also held that there was no evidence to show that the overseers of Susquehanna accepted the paupers in the first instance without an order of removal. They received them and provided for them, but this the act of assembly required them to do. Only one of the overseers had received them, and even if he had accepted them that would not bind the township; it would require the action of both overseers to bind the township.

      Errors assigned among others were (1) In dismissing appeal and confirming the order of removal. (2) In deciding that Frederick Strawser and his family had a quasi settlement in Monroe township. (5) In answering plaintiffs’ first point of law. Said point and answer are as follows : “ That when the order of removal of date January 19, 1895, under which these paupers were removed from Monroe township to Susquehanna township, was quashed by the court, the said Frederick Strawser, his wife and family continued to remain chargeable to the township of Monroe. Answer: Affirmed.” (6) In answering plaintiffs’second point of law. Said point and answer are as follows : “ That when the said order of reproval dated January 19, 1895, was quashed, it was the duty of the overseers of Monroe township to take charge of the said paupers until they could be removed to their last place of lega], settlement. Answer: Affirmed.” (8) In answering the plaintiffs’ fourth point of law. Said point and answer are as follows : “ The burden of searching for the last place of legal settlement of these paupers was not shifted to Susquehanna township, by removing them into that township under the order of removal of January 19, 1895, which was subsequently declared void by the court. Answer: Affirmed.” (11) In answering plaintiffs’ seventh point of law. Said point and answer are as follows : “ As between the township of Monroe and the township of Susquehanna, the township of Monroe is the place of settlement of these paupers, Frederick Strawser, his wife and children. Answer: Affirmed.” (12) In answering plaintiffs’ eighth point of law. Said point and answer are as follows : “ The said Frederick Strawser and his family have a quasi settlement, at least, in the township of Monroe, by reason of their having first become chargeable to said township. Answer: Affirmed.” (16) In holding that there is no evidence in the case such as warrants us in finding as a fact that the overseers of Susquehanna accepted the paupers as the paupers of that township.

      May 10, 1897:

      J. Howard, Neely, for appellants.
    — The questions for decisions are, the correctness of the court’s decree in confirming the order of removal, and deciding that Frederick Strawser and his family had a quasi settlement in Monroe township, and if this question be decided in the affirmative we ask that the decree of the court be so modified as tó permit Monroe township to remove the paupers to their last place of legal settlement, wherever that may be, whether in or out of Susquehanna township.
    The power of a poor district to accept a pauper without an order of removal has long been recognized in the courts of this state: Kelly Township v. Union Township, 5 W. & S. 535; Moreland Township v. Davidson Township, 71 Pa. 371.

      J. N Keller, for appellees.
    — The order to quash is like a reversal on a writ of error, which leaves the parties where they began: West Buffalo v. Walker Township, 8 Pa. 177.
    Although the quashing of the first application for removal operated, in some respects, like the reversal of a judgment, it did not prevent Walker township from commencing de novo: Walker Township v. West Buffalo, 11 Pa. 95.
    By refusing to do so, the appellants practically said to the appellees : “You have the paupers -anyhow; either support them or find their settlement.”
    It became Monroe township’s duty to provide for the paupers until they found in a legal manner their last place of settlement: Milton Overseers v. Williamsport Overseers, 9 Pa. 46; Overseers v. McCoy, 2 P. & W. 432; Taylor v. Shenango, 114 Pa. 394.
   Opinion by

Wickham, J.,

In March, 1894, one Frederick Strawser, with his wife and three children, was living in Monroe township, Juniata county. As to the place of his birth, and where he had resided before this time, we are left practically in the dark. On the 6th of November, 1894, through an order of relief, regularly issued by two justices of the peace, Strawser, together with his wife and children, became a charge on the poor district of Monroe township. On January 19, 1895, two justices of the peace of Monroe township granted an order for the removal of Strawser and his family to Susquehanna township, which order was executed by the overseers of the former township, on the 30th day of the same month. An appeal was taken from this order of removal by the overseers of the poor district of Susquehanna township, and on March 12,1895, the order was quashed, for the reason that the justices had no power to grant an order removing a pauper from their own township to another: Overseers of Washington v. Overseers of Beaver, 3 W. & S. 548. The two disti’icts were thus left where they began: West Buffalo v. Walker Township, 8 Pa. 177; but, as Monroe township refused and neglected to take back the paupers, the overseers of Susquehanna township, after an order of relief had duly issued, on April 26, 1895, obtained an order for their removal to Monroe township, and executed it on or about May 4,1895. From this order the overseers of the latter township appealed.

The court below properly confirmed the order of removal, on the grounds that there was no evidence that the paupers had a settlement of any kind in Susquehanna township, while it clearly appeared that they had a quasi settlement in Monroe. If we felt called xapon -to fully retry the case oar the facts, we would be coaaapelled to agree with the learned trial judge iar all his findings; aror do we discover any error iai his coaaclusioais of law.

We are asked, however, in case of affirmance of the decree, to anodify it, by adding express words permitting a secoaad reanoval ®f the paupers to Susquehaama, for the reasoai, alleged in the request, but denied by the appellees, th'atStrawser’s derivative settlement is iar-Susquehanna. In other words, we are requested to formally announce, through our decree, that this litigation may be deemed only fairly begun at the point where a law suit usually ends. At the hearing in the court below, the appellants had the right to defend, oai the ground that Strawser’s settlement was in Susquehanna (Overseers of Reading v. Overseers of Cumree, 5 Binn. 81), arad, if they had established that fact, their liability worald have ended. It cannot be denied that they had ample time for preparation, as the opiaiioai of the court was not filed, until aaearly eight months after the taking of the appeal to the quarter sessions.

Whether such a defense caar be saved to furnish the maiaispring for another proceeding, which could have been so easily avoided, is doubtful. It is enough to hold, however, that, as the decree is in proper form, and warranted by the law and the evidence, it needs no reformation. As to its ulterior effect on future litigation we may say as was said regarding the same question in Moreland Township v. Davidson Township, 71 Pa. 371, “we will leave this until it occurs.”

Decree affirmed and appellants directed to pay the costs.


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    Samuel Alcorn, appellant, v. George C. Christian.

      Contract — Nudum pactum — Want of consideration.

    A commission broker placed certain orders for flour with a miller which the latter accepted and upon which commissions became due to the broker. The miller sold his.mill and business, including these orders to defendant. Defendant volunteered an assurance to plaintiff “ that he would receive his commissions no matter when the flour was shipped.” Held, On a suit instituted to recover commissions thus alleged to be due, that defendant’s promise was purely gratuitous, an agreement without apparent consideration, to pay the antecedent debt of another, and of no binding, force and effect in law.
    Argued December 9, 1896.
    Appeal, No. 169, November T., 1896, by plaintiff, from judgment of C. P. Northampton Co-., April T., 1895, No. 23, on point reserved non obstante veredicto.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit by foreign attachment to recover commissions. Before Scott, J.
    The plaintiff, a flour commission broker, had for several years prior to October 16,'1894, been selling flour for George H. Christian, a miller residing in Minneapolis. During the months preceding, the plaintiff sent to George PI. Christian a number of orders which had been accepted by him and on which commissions were due plaintiff amounting to $246.30. On or about October 16, 1894, George H. Christian transferred his business to George C. Christian. In the transfer of the mill property and business these orders were transferred to George C. Christian, and so far as they were unfilled, were filled by him.
    On November 14, 1894, George C. Christian wrote to plaintiff a letter, which is as follows :

      “ Minneapolis, Minn., Nov. 14,1894..
    “ Samuel Alcorn, Esq., Drexel Building, Philadelphia.
    “Dear Sir: Your letter of the 12th is at hand, You have evidently misunderstood me; [my position in the matter is this. On all orders for Phila. points placed on our books before I took possession of the mill, Oct. 17th, you will receive commission, no matter when the flour is to be shipped. On any orders which I may have obtained by direct communication after Oct. 17th, I can allow no commission.]
    “I hope this is plain enough to do away with the need of continuing a correspondence which your lack of moderation renders annoying.
    “ Yery truly yours,
    “George G. Christian.”
    And again on January 21, 1895, he wrote a letter of which the following is the essential part as affecting this transaction.
    “Minneapolis, Minn., Jan. 21st, 1895. “S. Alcorn, Esq., Drexel Building, Philadelphia.
    “ Dear Sir: Your favor of the 19th is at hand and contents carefully noted. Mr. Smallwood bought 4 cars on Oct. 22nd. [Now my position has been that, having no contract with you. my only obligation towards you was in the case of orders already on the books when I took the mill — that is, orders boobed before Oct. 17th.]
    “Yery truly yours,
    “George C. Christian.”
    Under instructions of the court below, a verdict was rendered in favor of the plaintiff for the sum of $246.30, subject to the reservation by the court of the question of law whether there is any evidence in the case to be submitted to the jury upon which the plaintiff is entitled to recover. The court below subsequently entered judgment for defendant non obstante veredicto. Plaintiff appealed.

      Error assigned was entering judgment for defendant on the point reserved non obstante veredicto.

      Edward J. Fox, with him James Alcorn, for appellant.
    — The benefit which defendant would derive from the profits of the transaction, directly, as well as the indirect benefit which he would derive from the continued business intercourse with these customers, afforded the consideration which is needed to support his promise to pay.
    May 10, 1897:
    It appears proper for us to say that the consideration need not be expressed in the writing, but may be proved by any other evidence that is legal: Shively v. Black, 45 Pa. 345. Where there is in existence an obligation on the part of another, a promise to perform that obligation if he does not, is not within the statute of frauds if it is made upon a new consideration inuring to the benefit of the promisor, although the former obligation is not extinguished, provided the chief purpose of the promisor is to obtain a benefit for himself: Jefferson v. Slagle, 66 Pa. 202; Merriman v. McManus, 102 Pa. 102; Riegelman v. Focht, 141 Pa. 380.
    Assuming that this was an entirely new undertaking, the judgment should have been entered for the plaintiff: Elkin v. Timlin, 151 Pa. 491.

      Russell Q. Stewart, for appellee.
    — On the question of consideration, cited Paul v. Stackhouse, 38 Pa. 303; Chambers v. Davis, 3 Whart. 40.
    To prove a change of relation so as to take a case out of the statute of frauds it must be clear and indubitable evidence: Haverly v. Mercur, 78 Pa. 257.
    A consideration is not to be implied where none is expressed in a paper not negotiable.
    A promise to pay a debt of another, although in writing, is of no force unless founded upon a consideration, either actual or by the existence of a seal. Where the promise is to pay the overdue debt, mere forbearance, without an agreement'to that effect, is no consideration: Hess’ Estate, 150 Pa. 346.
   Opinion by

Wickham, J.,

The appellant, a commission broker in Philadelphia, sent to George H. Christian, a miller of Minneapolis, Minnesota, certain orders for flour which the latter accepted. By these acceptances he became liable, presently, to the appellant for a commission of ten cents per barrel on the order of each customer, and apparently is yet so liable for the commissions unpaid. Before lie had paid the appellant in full, he transferred his mill and business including the orders, to George C. Christian, the defendant in this suit. The defendant took possession on October 17, 1894, and on November 14 of the same year wrote the appellant, “ On all orders placed on our books before I took possession of the mill October 17th, you will receive commissions, no matter when the flour is to be shipped. On airy orders which 1 may have obtained by direct communication after October 17th I canallowno commission.” On January 21,1895, the defendant again wrote the appellant, refusing for reasons given, to pay commission on certain of the sales covered by the promise contained in the first letter, but admitting his general liability under that promise, while denying having made any contract with the appellant. If the defendant were liable at all to the appellant, the latter was entitled to recover $246.10, the amount allowed by the jury.

The above are the material facts contained in the special verdict. At first glance it would seem that the question of law reserved at the trial involves an examination of all the evidence in the case, but a closer view sufficiently shows, that the decision of the jury rests, and was intended to rest, solely on the facts specially found, and that they alone are to be considered in passing on the reserved point, namely: “ whether there is any evidence in the case to be submitted to the jurj1- upon which the plaintiff is entitled to recover.” This comment is suggested, not because we think any necessary fact was omitted from the verdict, or that a consideration of the whole evidence would strengthen the appellant’s cause, but to relieve the reserved point from any objection that might be made to it, based on the ruling in Yerkes v. Richards et al., 170 Pa. 346. It was there held, that a point reserved in the words of the one before us which was evidently copied from one, held to be good, in Newhard v. P. R. R. Co., 153 Pa. 417, was not sufficient, in the .absence of a distinct statement of the facts to which it was intended to apply. As the case of Newhard v. P. R. R. Co. was unavailingly cited and relied on, by counsel, at the argument of Yerkes v. Richards et al., it would seem to be impliedly overruled in respect to the matter now under consideration.

The liability of the defendant must be sought for in his two letters above mentioned. He had no contract with George H. Christian the original debtor of the appellant to pay the latter anything. It does not appear that the appellant retained any control over the orders. He could neither withdraw nor transfer them. When he placed the orders with George H. Christian he ceased to have any further interest in them, and had fully earned his commissions: Restein v. McCadden & Bro., 166 Pa. 340. The defendant’s promise was purely gratuitous, an agreement without any apparent consideration, to pay the antecedent debt of another and, therefore, as the learned judge of the court below has clearly shown, cannot be enforced. It is no more binding in law than would be a gratuitous promise of the buyer of a farm, to pay for seeds sold to a former owner, and which were growing plants when' the land was purchased, or a like agreement to compensate the plowman who had prepared the fields for the sower. The “ obligation ” mentioned in the second letter evidently refers to the promise contained in the first. If it does not, then we must wander in the regions of conjecture in search of its meaning.

Conceding that tire facts set forth in the finding of the jury create a suspicion that some consideration existed for the promise, this is not enough to rest upon, nor is the plaintiff aided by the seeming dishonorable nature of the defense. It is a complete legal defense, and therefore the courts are bound to respect it.

Judgment affirmed.


text:
    The Commonwealth of Pennsylvania, for use of Ethelinda Brainerd, Administratrix of S. M. Brainerd, deceased, Cynthia Allen and others, v. A. C. McGovern and D. M. Brainerd, Appellants.

      Decedent's estate — ^Principal and surety — Sureties of administrator.

    Real estate of a decedent was sold by an administrator for payment of debts and in distribution of the balance the widow’s interest was ordered by the court “to be retained by the administrator, during the lifetime of the widow and at her death to be paid to the persons entitled, and that the widow should be paid interest annually during her lifetime.” On the death of the widow the administrator was found to be insolvent. Said,
      that the sureties of the administrator were liable to the parties entitled to the fund, no new obligations having been imposed in excess of the administrator’s original responsibility.
    Argued Jan. 19, 1897.
    Appeal, No. 33, Jan. T., 1897, by defendants, from judgment of C. P. Bradford Co., Sept. T., 1896, No. 68, for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladx and Smith, JJ.
    Affirmed.
    Assumpsit on surety bond. Before Dunham, P. J., of the 45th judicial district, specially presiding.
    It appears from the record that F. P. Cooper was duly appointed administrator of the estate of M. C. Brainerd, with A. C. McGovern and D. M. Brainerd as his sureties upon a bond, the conditions of which were as follows : “ Whereas the above bounden F. P. Cooper, administrator of A. C. Brainerd, late of Litchfield, county of Bradford and state of Pennsylvania, deceased, is about to apply to the Orphans’ Court of said county for an orderto make sale of the real estate of said A. C. Brainerd, deceased : Now, therefore, the condition of the above obligation is such that, if the said court shall make the said order, and said F. P. Cooper shall well and truly execute the powers committed to him by the said court, for the sale of said premises, and make a faithful appropriation of the proceeds of said sale according to law and his respective duties, then this obligation shall be null and void, otherwise to be and remain in full force and virtue.”
    An order was duly made by the. orphans’ court of Bradford county directing the administrator tp sell real estate of the decedent for the payment of debts. The real estate was so sold and after payment of debts the balance remaining in the hands of the administrator was $1,242.83. An auditor having been appointed to make distribution of the said sum in the hands of the administrator made a report directing distribution and recommending that the sum of $338.20, which represented the widow’s interest in the land, be retained by the administrator during the lifetime of the widow, and at her death be paid to the persons entitled and that the widow should be paid interest annually during her lifetime.
    The court made a decree in conformity with the suggestion of the auditor.

      On the death of the widow it was ascertained that the administrator, F. P. Cooper, was absolutely insolvent and unable to pay the amount in question. Suit was entered on the bond made to the commonwealth for the use of the parties in interest. Defendants filed the following affidavit of defense :
    “ Bradford County, ss.
    “A. C. McGovern and D. M. Brainerd, each being duly sworn, does depose and say, he has a just and full defense to the claim of the plaintiff in the above stated case and says, while it is true as stated in the statement of claim filed in this case, they each signed the bond mentioned in said statement, but did not sign the same for the disposition of the money as subsequently made by the auditor as stated in said complaint.
    “It was no part of the duty of the auditor in making the distribution of the said fund to award the same to F. P. Cooper in trust for the said widow, nor to award the same to the said F. P. Cooper as administrator, to be held by him in trust for the said widow and the plaintiffs in this case. Nor did the said auditor have legal authority so to do. Deponents further say, they were not consulted with, nor did they or either of them advise the action of the auditor in finding that the dower interest of the widow should be left in the hands of F. P. Cooper, the administrator, during the lifetime of the widow, and then by said administrator paid to the heir of A.. C. Brainerd; nor was it a part of the condition of the said bond upon which this action is founded either in spirit or letter.
    “Deponents further say that the leaving of the said fund with F. P. Cooper during the natural life of the said widow, was in pursuance of an agreement made by the said widow and the said F. P. Cooper, without the consent or agreement of these deponents or either of them.
    “Deponents further say that at the time of said distribution the said F. P. Cooper was solvent and expected to pay the dower interest of the said widow into court, to await the order of the court respecting the same.
    “ That on the distribution of the said fund by the said auditor, deponents were relieved of and from any and all further liability of and by virtue of the said bond. That the dower interest of the widow and its final distribution to and among the heirs of the said A. C. Brainerd, was not, in law or fact a part of the duties of the said administrator, for winch said bond was executed by deponents. This was an undertaking on the part of the said Cooper and the widow based upon an independent contract, not embraced within the provisions of said bond.
    “ A. C. McGovern.
    “D. M. Brainerd.
    “ SUPPLEMENTAL AEEIDAVIT.
    “ A. C. McGovern and D. M. Brainerd, being severally sworn, doth depose and say, that after the sale of the real estate mentioned in the statement of the plaintiff filed in this case, the orphans’ court of Bradford county appointed an auditor to make distribution of the money arising from said sale. The appointment of the auditor for this distribution is not mentioned by the plaintiffs in their statement.
    “This distribution was made by S. R. Payne, Esq., which auditor’s report was confirmed on the 13th day of December, 1886, The report of the auditor as shown by the records in said case is as follows, with relation to the fund now in dispute:
    “ ‘To be retained by the administrator during the lifetime of the widow, Jane Brainerd, and then at her death to be paid to the persons entitled, -one-tliird of the above balance, to wit, $338.28, the widow to be paid annual interest on same during her lifetime.’
    “Deponents further say, the widow, Jane Brainerd, died some time in the year 1892. Deponents are informed that the said F. P. Cooper kept the money by virtue of said auditor’s adjudication, all of which was without the assent of deponents, nor was either of the deponents advised with in relation to the awarding of the said money to the said Cooper for the purposes aforesaid. “ A. C. McGovern.
    “ D. M. Brainerd.”
    Indorsed on the back of supplemental affidavit:
    Filed August 27, 1896. — Now, August 27, 1896, this supplemental affidavit allowed to be filed.
    The court after argument made the rule for judgment absolute and ordered judgment to be entered in favor of the Commonwealth of Pennsylvania for the amount of the bond claimed in this suit, to wit, the sum of $2,500, the same to remain for the use of the parties entitled thereto; and in favor of Ethelinda Brainerd, administratrix of S. M. Brainerd, deceased, for the sum of $84.72 and costs; and in favor of Cynthia Allen for the sum of $42.48 and costs, and in favor of Charles M. Hall for the sum of $22.00 and costs. Defendants appealed.

      Error assigned was in making absolute the rule for judgment in this case.

      S. E. Maynard, for appellants.
    — The administrator performed his duty as such and paid the money in his hands as administrator to the parties to whom it was awarded, and the sureties are not responsible for the loss of the money after the court distributed the same: Com. v. Shryock, 15 S. & R. 69; Reed v. Com., 11 S. & R. 441; Com. v. Toms, 45 Pa. 408; Blauser v. Diehl, 90 Pa. 350.
    The liability of a surety on an official bond, cannot, without his consent, be extended or enlarged by the obligee or by operation of law: Bensinger v. Wren, 100 Pa. 500; Telegraph Co. v. Lennig, 139 Pa. 594.
    An executor or administrator who makes payment in conformity with the decree of the orphans’- court, directing distribution, is protected by the decree, and it is immaterial that a refunding bond was not executed from the distributee: Bank v. Yard, 164 Pa. 586.
    After the confirmation of the report of the auditor, awarding the money to F. P. Cooper during the lifetime of the widow, it was a complete bar to any action the sureties might have had against the administrator, Cooper, to protect themselves against loss by the insolvency of Cooper. But they were not obliged to give the matter further attention: Stark v. Fuller, 42 Pa. 320.

      W. J. Young, for appellee.
    — The affidavits are to be read together as one: Com. v. Snyder, 1 Pa. Superior Ct., 286.
    The affidavits of defense consisted in swearing to conclusions of law. This practice cannot be too strongly reprobated: Erie City v. Brady, 127 Pa. 169; Com. v. Snyder, 1 Pa. Superior Ct. 286.

      May 10, 1897:
   Opinion by

Wickham, J.,

F. P. Cooper, as administrator of the estate of A. C. Brainerd, deceased, on or about January 17,1885, obtained an order from the orphans’ court of Bradford county, authorizing him to sell his intestate’s real estate, for the payment of debts. At the time of the issuance of the order, he filed a bond, which was duly approved by the court. It contained the following condition: “The said F. P. Cooper shall well and truly execute the powers committed to him, hy the said court, for the sale of the said premises, and mate a faithful appropriation of the proceeds of said sale, according to law, and his respective duties.” On this bond the appellants are sureties.

The administrator made the sale as directed, and on January 2, 1886, filed his account showing a balance of proceeds, amounting to $1,242.83 in his hands for distribution. The account was confirmed and the court appointed an auditor to make distribution of the balance shown thereby. A. C. Brainerd left to survive'him a wife, Jane, who as his widow, was entitled to interest, during her life, on $338.28 of the fund for distribution, The auditor, therefore, after. directing payment of the rest of the fund presently, recommended that the above sum should “ be retained by the administrator, during the lifetime of the widow, Jane Brainerd, and then at her death to he paid to the persons entitled ” and that the widow should be paid interest annually on the same during her lifetime. This recommendation, the defendants allege, was pursuant to an agreement made between the widow and the administrator. The auditor’s report was confirmed on December 13,1886. The widow died in 1892.

After her decease, another auditor was appointed to ascertain the parties entitled, under the first auditor’s report to the $388.28, and report distribution. He performed these duties and his report was confirmed on March 6, 1893, and among the distributees therein named are S. M. Brainerd, Cynthia Allen and C. M. Hall. The two parties last named, and the administratrix of S. M. Brainerd, he having since died, are the use plaintiffs in this action. The administrator, before suit brought, became and remained hopelessly insolvent. The above facts sufficiently appear from the statement of claim, the original and supplemental affidavits of the defense, and the records referred to in these several papers. •

The defendants allege and contend that, on the confirmation of the first audit, Cooper ceased to hold the $338.28 as administrator; that he must, thereafter be regarded as occupying a new relation towards the fund, and that, therefore, they were discharged as sureties. But, was Cooper, so far as the parties entitled to the fund at the widow’s death are concerned, ever divested of his original character? Certainly the literal language of the auditor in regard to this matter, and which practically, constitutes the order of the court, does not sustain the defendants’ contention. The money was to be retained by the administrator as such, until it was paid out to the persons entitled.

Nor is there anything in the nature of the transaction which would change his relation to the fund and the heirs. The private arrangement, between himself and the widow, to pay her interest on the funds, and the order of the court ratifying and confirming the same, does not in any way affect the rights of the heirs. The order did not change or enhance the duty he owed to them from the beginning. So far as they are concerned it was such an order as he and his sureties might have anticipated as the result of the coming into his hands of the proceeds of the sale. They are presumed to have known that the court might direct, that the total proceeds of sale should be paid in cash to the administrator. The law does not require the share of the purchase money, on which the widow is to receive interest, to remain charged on the land sold: Zook’s Appeal, 54 Pa. 486. By the terms of the bond, the administrator was “ to make a faithful appropriation of the proceeds of said sale according to law and his respective duties.” The money retained could not be paid out until the widow’s death, and then only to the very parties whom the second auditor found to be the persons entitled as heirs of the owner of the land. The only part of the order that concerns the sureties is the requirement to pay $338.28 at the widow’s death. This duty, however, the law imposed on the administrator from the beginning. Looking merely at the rights of the heirs, the decrees confirming the auditor’s reports were simply declaratory and enforcive of the administrator’s original undertakings, and therefore not subjecting his sureties to other or greater liability than they risked when they signed the bond. We need not consider the questions that might arise were the widow living and suing the appellants for interest.

Under section 14 of the Act of March 29, 1832, P. L. 193, the administrator might have presented his petition to the orphans’ court asking for leave to invest the money left in his hands. The court then would have ordered the investment of the fund in one or more of the securities designated in the act, and, by conforming to the order, he and his sureties would have been free from further liability; but he did not choose to pursue this course, consequently the appellants remained and are liable.

Judgment affirmed.