text:
    Eisenbrown v. Burns, Appellant.

      Will — Devise—Power of sale — Real estate.

    Testator directed that his executors should permit his niece to continue to occupy a residence “free of charge, so long as same may remain in its present condition, and the property of my estate.” He gave to his executors full power to sell all or any part of his real estate, “either at public or private sale, as they shall deem best, and for such price or prices, and upon such terms and conditions as in their judgment may be deemed advisable,” free of all liability on the part of the purchaser to see to the application of the purchase money. The executors sold the residence occupied by the niece, and the purchaser brought an ejectment against the niece to recover possession. Held, (1) that the plaintiff was entitled to recover possession of the premises: (2) that the plaintiff was not required to show that the sale of the premises was necessary to cany out the provisions of the will; (3) that one of the two executors who had joined in the deed should not be permitted to contradict the deed, and deny his authority to execute it.
    Argued Oct. 19, 1905.
    Appeal, No. 114, 1905, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1908, No. 3682, on verdict for plaintiff in case of Harry J. Eisenbrown, agent for James Flaherty, v. Lawrence Burns and Elizabeth Burns.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Ejectment for No. 1019 Master street in the city of Philadelphia. Before Beitler, J.
    The facts are statéd in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      William A. Hayes, for appellants.
    — There was no power in the executors to sell the premises in question: Potts v. Breneman, 182 Pa. 295; Sweeney v. Warren, 28 N. E. Repr. 413; Seeds v. Burk, 181 Pa. 281; Forrest v. Wallace, 3 Walker, 86; Wilkinson v. Buist, 124 Pa. 253; Fidler v. Lash, 125 Pa. 87; Luffberry’s App., 125 Pa. 513; Eberly v. Koller, 209 Pa. 298

      January 13, 1906:

      Charles E. Lex, for appellee.
    — The executors of John O’Neill’s will had full discretionary power and authority to sell any real estate of which he died seized, and there is nothing in the will which shows any intention to except the premises in question. The power refers to “ all or any part ” of his real estate, and if he had desired to except what he had specifically devised, he could have so stated: Grant v. Hook, 13 S. & R. 259; Doran v. Piper, 164 Pa. 430; Monticelli v. Meyer, 193 Pa. 545; Hovey v. Chisolm, 56 Hun, 328 (9 N. Y. Supp. 671).
   Opinion by

Orlady, J.,

The eleventh item in the will of John O’Neill is as follows: “ For the purpose of paying my debts, and carrying out the provisions of this my will, I do hereby authorize and empower my executors hereinafter named to sell and dispose of all or any part of my real estate, either at public or private sale, as they shall deem best, and for such price or prices and upon such terms and conditions as in their judgment may be deemed advisable and to make and execute suitable deed or deeds therefor to such purchaser or purchasers as they may deem proper, free, clear and discharged of all liability on the part of the purchaser or purchasers to see to the application of the purchase money.” By the ninth item, he provided as follows: “ I direct that my executors hereinafter named shall allow my niece, Mrs. Elizabeth Burns, to continue to occupy premises No. 1019 Master street, Philadelphia, free of charge, so long as same may remain in its present condition, and the property of my estate.” By previous items he devised to friends $3,500, absolutely, and provided: the income derived from $2,500 should be paid to Catherine Kinney during her life; thé income derived from $15,000 should be paid to Yictoria Pingston during her life; the income to be derived from $5,000 should be paid to his wife, and by a subsequent item, provided that the rest, residue and remainder of his estate should pass to his wife, Mary Ellen O’Neill, absolutely. The executors, Mary Ellen O’Neill and Edward J. Brophy, “acting in pursuance of the power and authority conferred upon them by the will of the said decedent, and for the purpose of. paying the debts of the said decedent,” by a formal deed duly executed and delivered, sold the property in dispute in this case, No. 1019 Master street, and other property of the decedent, No. 1017 Master street, to James Flaherty for $6,500 which purchase money was received by the executors and duly accounted for by them.

This action of ejectment was brought to recover the possession of No. 1019 Master street from Elizabeth Burns, who occupied the premises by virtue of the ninth paragraph of John O’Neill’s will, and the only question raised by this appeal is whether, under the admitted facts of the case, the plaintiff was required to show affirmatively that the sale by the executors was in fact necessary in order to carry out the provisions of the will. Had John O’Neill intended that Elizabeth Burns should have a life estate in the premises he could have declared his intention by easily understood words. The defendant accepted the devised property upon the condition annexed to it, viz : “ so long as the same may remain in its present condition, and the property of my estate ” and, she must be held bound by the terms of the condition if the power given the executors in the will was properly exercised.

The executors were given ample power and authority to sell all or any part of the decedent’s real estate for the purpose of paying the debts, and carrying out the other provisions of his will. It would be a strained construction to limit the application of the words “ as they shall deem best ” ; “ as in their judgment ” ; “ as they may deem proper ” to fixing the amount of the purchase money and securing its payment and not apply them to the power and authority to make the sale. The payment of the debts was not the sole and determining reasoil which would justify the sale, as the payment of the legacies and administration of the trusts mentioned in the will may have been as active and persuasive inducements as the payment of the debts. They were given a large discretion in their disposition of the estate, and this legatee could not require them to subordinate the interests of creditors or the other legatees to her own. Such was not the intention of the testator as gathered from the words of his will. Nor was the purchaser, after paying the fair price of the land, required to see to the application of the purchase money, as the testator had specifically exempted him from all liability in regard to it. It follows that the sale was a valid execution of the power given to the executors and vested a good title to the lot in the purchaser. If this purchaser would be required to investigate, whether a necessity for a sale existed and conclude that it did exist, and the legatee differ with him in such conclusion, the validity of the title would be made to depend on the verdicts of as many juries as the parties might be able to secure in determining the very question which the testator declared should be decided by his executors. “It would render the power useless, for no prudent man would buy under such a load of responsibilities : ” Grant v. Hook, 13 S. & R. 259; Doran v. Piper, 164 Pa. 430. The plaintiff had a right to rely on the deed given to him in the execution of that power, and the court rightly rejected the offer to attack its validity by having one of the grantors, after having accepted the full consideration, contradict his solemn declaration made in the deed, and deny his authority to make it, without any suggestion of fraud, accident or mistake in the transaction. The witness had joined with his coexecutor in making the sale, and induced the plaintiff to part with his money, which represented the fair value of the land. The rules of law as well as the dictates of common honesty hold him to be estopped in denying that his exercise of this discretionary power, as executor, was for the best interests of the estate', and, from destroying the title which he created, after he had received full consideration for the property: McPherson v. Cunliff, 11 S. & R. 422; Root v. Crock, 7 Pa. 378; Maple v. Kussart, 53 Pa. 348; Monticilli v. Meyer, 193 Pa. 545. The mistake in awarding the plaintiff money damages in’ the verdict, was corrected, and the judgment entered was for the land described in the writ, without prejudice to his right to bring suit for mesne profits. The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    May v. Allison, Appellant.
    January 13, 1906:

      Negligence — Automobiles—Negligent driving.

    In an action to recover damages for personal injuries sustained from collision with an automobile, a verdict and judgment for plaintiff will be sustained where it appears that at the time of the accident plaintiff was standing on the edge of a pavement with one foot on the curb, in the act of stepping upon the roadway, when the driver of an automobile, either through reckless mismanagement or through inexperience, drove his machine upon the curb and struck and injured the plaintiff.
    Argued Oct. 25, 1905.
    Appeal, No. 80, Oct. T., 1905, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1904, No. 3, on verdict for plaintiff in case of Joseph May v. W. M. Allison.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Savidge, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $275. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Charles C. Lark, with him Fred. B. Moser, for appellant.

      Charles M. Clement and William W. Ryon, for appellee.
   Opinion by

Orlady, J.,

The disputed facts in this case were properly referred to the jury under instructions which fairly and fully defined the rights and liabilities of the parties. That tribunal adopted the testimony of the plaintiff as the true version of the accident, and there is ample evidence in this record to justify the verdict. The plaintiff was fully corroborated by several disinterested witnesses, and upon no known rule of law would the court have been justified in directing a verdict for the defendant. ’ The injuries were received, as determined by the jury, while the plaintiff was yet upon the pavement, with one foot on the curb, and in the act of stepping upon the roadway, and were caused by the defendant’s reckless mismanagement of his automobile on the public street and highway, which was propelled with such disregard-for the safety of others, or to put it in a more favorable light, so operated by an inexperienced driver that it was driven or -forced upon the curb where the plaintiff was standing.

The record is free from any reversible error, and the judgment is affirmed.


text:
    Morrison’s Cove Turnpike Road.

      Road law — Turnpike road — Condemnation of turnpike — Exceptions—Appeal — Damages.
    An appeal from an order of the court of quarter sessions dismissing exceptions to a report of a jury of view in proceedings to condemn a turnpike road under the Act of June 2, 1887, P. L. 306, is in fact a certiorari, and the appellate court in reviewing the order will concern itself only with the regularity of the proceedings in the court below. The solution of the question of damages is through an appeal to the court of common pleas from the report of the jury of view.
    Argued Oct. 26, 1905.
    Appeal, No. 183, by the Morrison’s Cove Turnpike Company, from order of Q. S. Blair Co., June T., 1903, No. 7, dismissing exceptions to report of jury of view In re Morrison’s Cove Turnpike Road.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of jury of view.
    Bell, P. J., filed the following opinion:
    A careful- reading of the Act of June 2, 1887, P. L. 306, Purdon’s Digest, p. 2049, “authorizing the condemnation of. turnpikes,” convinces us that the court alone passes on the question as to whether the turnpike in question should be condemned. After a jury of view’ has reported in favor of such condemnation, exceptions filed “ shall be heard by the court ” which court “ may set the same aside or may confirm such report.” The appeal allowed by section 8 of said act only applies to the amount of damages allowed by the jury of view; the only question passed on in such appeal is the amount of damages to which the owners of the turnpike are entitled.
    In the present instance we have, the following elements in favor of the condemnation repetition of the turnpike, namely, a petition of at least twenty-five citizens; the report of the jury of view; petitions in favor of condemnation signed by 229 citizens of North Woodbury township, 124 citizens of Martins-burg, 397 citizens of Taylor township and Roaring Springs, and about 100 citizens of Freedom township.
    The o:ily weighty objection to such condemnation is a remonstrance signed by about an equal number of citizens of said last mentioned township of Freedom. And from our own knowledge of the location of the turnpike, as well as from the testimony in the case, it is evident that unless a portion of the route of the old turnpike is changed, a comparatively heavy burden of maintenance will be imposed on Freedom township. The turnpike, from opposite the Old Gap Company store building to the foot of the Leamersville hill, by reason of its low and flat location and susceptibility to being washed by floods, is kept in repair with difficulty; and the bridge near the railroad crossing will likewise have to be rebuilt in a few years. These circumstances have caused us to hestitate before confirming the report of the jury of view.
    But, on the other hand, in addition to the petition hereinbefore recited, we have the tendency prevalent all through this state, to do away with toll roads, and the fact that the turnpike in question is in very bad condition. Moreover, the burden of maintenance imposed on Freedom township could be greatly lightened by changing the location of the road for a distance of some one-third of a mile. The public could cross the stream at the county bridge near the Old Gap Company store, and a comparatively small amount of work would make a good road passing south of the McKee’s railroad station. It would then only be necessary to keep up a portion of the present road for the accommodation of the citizens in the vicinity of Vicksburg.

      January 13, 1906:
    Now, July 20, 1905, the exceptions are overruled and the report of the jury of view is confirmed absolutely.

      Error assigned was order dismissing exception to report of jury of view.

      A. V. Dively, of Dively & Dively, for appellants.
    — The sixth section of the act of June 2, 1887, is unconstitutional: Webster v. Reid, 52 U. S. 437; Parsons v. Bedford, 28 U. S. 433; U. S. v. La Vengeance, 3 Dall. 297.

      W I. Woodcock, for appellee.
    — This case is before this court on certiorari, under the sixth section of the Act of June 2, 1887, P. L. 306. Consequently, the court will consider simply and only the regularity of the proceedings: Factoryville, etc., Turnpike & Plank Road, 19 Pa. Superior Ct. 613; Chambersburg, etc., Turnpike Road, 20 Pa. Superior Ct. 173; Plank Road Co. v. Chester Co., 182 Pa. 40.
   Opinion by

Orlady, J.,

This condemnation proceeding of a turnpike road, which had been incorporated by Act of April 11, 1848, P. L. 635, was begun under the provisions of the Act of June 2, 1887, P. L. 306, by a petition of a large number of citizens of the county in which it is located. The formalities required by the latter statute were strictly followed down to the return of the master and jury of view, which found that it was for the best interests of the people of Blair county that the turnpike should be condemned for public use, to be free from tolls and toll gates, and assessed the damages to which the corporation owner was entitled, in the sum of $2,000. An appeal from the assessment of damages was taken by the corporation to the court of common pleas, and exceptions were filed to the report of the jury of view, which raised but three questions: 1. That the finding of the jury was not warranted by the weight of the evidence. 2. That the confirmation of the report would impose a great hardship on the towhship in the continued maintenance of the turnpike as a public highway. 3. The damages awarded were inadequate. After a full hearing by tbe court the exceptions were overruled and the report was confirmed absolutely, from which decree this appeal was taken, as provided by section 6 of the act. While in the nature of an appeal it is in fact a certiorari and our only concern is with the regularity of the proceedings in the court below: Factoryville, etc., Turnpike & Plank Road, 19 Pa. Superior Ct. 613; Chambersburg & Bedford Turnpike Road, 20 Pa. Superior Ct. 173. The exceptions filed limited the inquiry to the general propriety of condemning this turnpike for public use, and this is a legislative question rather than a judicial one. The general trend of legislation on this subject has been to relieve the traveling public from the payment of toll charges and impose upon the townships the maintenance of their public highways. The provisions of the act of 1887, dispose of the question of policy in the taking of such property and condemning it for public use, and provides ample methods for securing to the owners of the property full compensation for everything taken from them.

When the terms of the act are followed and the court confirms the report of the jury of view, that part of the case is disposed of finally, and the only remaining question is to ascertain the damages sustained. This is solved through an appeal to the court of common pleas as is provided by section 8 of the. act. The latter proposition is yet an open one in the Blair county court, and that case is not now before us for review.

The proceedings before the master and jury are free from error and the decree of the court is affirmed.


author: Rice, P. J.,

text:
    Commonwealth v. Edmiston, Appellant.

      Criminal law — Indictment—Quashing indictment — Witness—Appeals.
    The Superior Court has authority to review the action of the quarter sessions iii refusing to quash an indictment; but where the action of the lower court is purely discretionary it will not be set aside unless there be an abuse of discretion both manifest and flagrant.
    Where the'motion to quash an indictment is based on an allegation of facts outside of the record proper, the revisory jurisdiction of the appellate court is necessarily confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by bill of exceptions.

      January 13, 1906:
    The Act of March 31, 1860, sec. 10, P. L. 427, giving authority to the foreman and members of the grand jury to administer the oath to a witness whose name is indorsed on the indictment, does not abrogate the common-law practice by which witnesses were sworn in open court and sent before the grand jury.
    The Superior Court will not reverse an order of the quarter sessions refusing to quash an indictment because the indictment was found upon the testimony of a single witness whose name was not indorsed on the indictment, where it does not appear from the record either affirmatively or by necessary implication not only that the indictment was found as alleged, but also that the witness was not sworn before the court.
    Argued Nov. 13, 1905.
    Appeal, No. 202, Oct. T., 1905, by defendants, from order of Q. S. Blair Co., Oct. T., 1905, No. 38, refusing to quash indictment in case of Commonwealth v. Lewis Edmiston and Scott Shaw.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for keeping a gambling house.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order refusing to quash indictment.
    H. Price Graffius, for appellants.
    — Only those individuals whose names have been indorsed on the bill by the district attorney can be sworn. If others are examined, and their names then added by the jurors, it is improper, and the bill will be quashed on motion: Sadler’s Criminal Procedure, p. 245, sec. 195; Com. v. Price, 3 Pa. C. C. Rep. 175, 4 Kulp, 289; Com. v. Schall, 9 Lanc. L. Rev. 332; 5 York Leg. Record, 139; Com. v. Frescolm, 11 Lanc. L. Rev. 161; Com. v. Wilson, 9 Pa. C. C. Rep. 24; Jillard v. Com., 26 Pa. 169.
    J. Banks Kurtz, for appellee, filed no printed brief.
   Opinion by

Rice, P. J.,

The defendants were charged in an indictment containing two counts with violations of sec. 55 of the act of March 31, 1860 P. L. 382 relative to gambling. The direct evidence of their guilt adduced at the trial was abundant and uncontradicted ; it also was shown, and of this there was no denial, that by payment of money they induced two of the commonwealth’s witnesses to absent themselves at the time the grand jury was in session in order to prevent the finding of a true bill. They offered no evidence whatever, and the court submitted the case to the jury with brief but adequate description of the offenses charged, entirely justifiable comments on the testimony and, in conclusion, the instruction that if the jury had a reasonable doubt as to the guilt of the defendants they were entitled to the benefit of the doubt and to an acquittal. No exception was taken to the charge or to any ruling upon evidence, and the defendants raise no question on this appeal, and could raise none which would have legal merit, as to the form or substance of the indictment, the sufficiency or competency of the evidence, the charge of the court, or the sentence imposed. The single matter assigned for error is the denial of their motion to quash the indictment upon the ground, as stated in the motion, “ that a witness, whose name was not marked on the back of the indictment, Avas called before the grand jury and SAVorn by the foreman.” It appears by the docket entries that the motion was overruled, the defendants: excepted and a bill aves sealed. After this appeal was taken and on the same day that the certiorari-was deposited in the office of the clerk of the quarter sessions the defendants presented a petition to that court, alleging that upon the hearing of the motion to quash, the district attorney admitted in open court certain facts, which they were advised should have been stated in the ruling of the court, and, since they were not so stated, praying the court to designate a time “ to technically formulate the exception and seal a bill for the defendants.” On the day appointed pursuant to the petition the president judge filed a paper purporting to “ add to the record ” a statement of what occurred upon the hearing of the motion to quash, which, although not sealed, was evidently intended to be the perfected bill of exceptions, and we shall so treat it. The facts set forth in it, so far as material here, are, that the district attorney did not deny that the indictment was found a true bill upon the testimony of á single witness whose name was not indorsed on the indictment, but he claimed that he was justified in sending such witness before the grand jury because the defendants had induced the witnesses named on the indictment to abscond; álso — this is the judge’s finding — that counsel for defendants, before making the motion, knew the name of the witness who testified before the grand jury, but said witness did not testify in the trial of the case.

The district attorney questions our authority to review the action of the quarter sessions in refusing to quash an indictment. We hold, following the Pennsylvania decisions in which the question has been duly considered, that we have such authority in a proper case: Commonwealth v. Bradney, 126 Pa. 199; Commonwealth v. Hall, 23 Pa. Superior Ct. 104. Where, however, the action of the court is purely discretionary it will not be set aside unless there be an abuse of discretion both manifest and flagrant: Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531; Commonwealth v. Beldham, 15 Pa. Superior Ct. 33; Commonwealth v. Sheppard, 20 Pa. Superior Ct. 417; Commonwealth v. Brown, 23 Pa. Superior Ct. 470. Where the motion to quash was based on an allegation of facts outside of the record proper, our revisory jurisdiction must necessarily be confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by a bill of exceptions: Commonwealth v. Bradney, 126 Pa. 199; Commonwealth v. Roth, 8 Pa. Superior Ct. 220; Commonwealth v. Mock, 23 Pa. Superior Ct. 51. It is important to keep this in mind, for a comparison shows that the statement of facts contained in the bill of exceptions is not as broad, either in form or substance, as that set forth in the petition therefor. Reduced to its simplest terms it amounts to this, that the indictment was found upon the testimony of a single witness called by the district attorney, whose name was not indorsed on the indictment. The easels not presented of an indictment found upon the testimony of an interloper or of a witness called by the grand jury of their own motion. The question for our determination is, whether the facts set forth in the bill of exceptions are sufficient to rebut the presumption that the bill was found upon the testimony of a witness, or witnesses, lawfully sworn.

At common law the witnesses were sworn in open court and sent to the grand jury: 1 Ch. Cr. L. 322. By our statute it is provided : “ The foreman of any grand jury, or any member thereof, is hereby authorized and empowered to administer the requisite oaths or affirmations to any witness whose name may be marked by the district attorney on the bill of indictment: ” Act of March 31, 1860, sec. 10, P. L. 427. We know of no decision of our Supreme Court ruling the precise question ; but there are several reported decisions of the courts of quarter sessions of the state to the effect, that the power of a foreman or member of a grand jury to administer oaths to witnesses upon indictments preferred by the district attorney is confined to the witnesses whose names have been indorsed upon .tbe indictment by him, and that if a witness whose name was not thus indorsed on the bill and who was not sworn before the court testifies before the grand jury, this is ground for quashing the indictment. The nearest approach to a decision of the question by the Supreme Court is Jillard v. Commonwealth, 26 Pa. 169, where it was held that this is not pleadable in bar, but at most is ground only for a motion to quash. But it is quite clear that the statute giving authority to the foreman and members of the grand jury to administer the oath does not abrogate the common-law practice: 9 Am. & Eng. Ency. of Law (1st ed.), 16. Hence, to warrant us in reversing the action of the court below it ought to be made to appear affirmatively, or by necessary implication, not only that -the indictment was found a true bill upon the testimony of a witness whose name was not indorsed thereon, but that he was not sworn before the court. A careful examination of the bill of exceptions shows that this latter fact is not expressly stated, and is not necessarily to be implied from what is stated. This may be regarded as a somewhat technical view to be taken of the record, but upon, reflection it will be seen that it is after all the only safe view. For while we may surmise- that the witness was not sworn before the court, yet we can do no more than surmise that fact from this record. The defendants, in view of all the circumstances to which we have alluded at the outset of this opinion, are not in a position to demand that we go outside the record, even if we had discretionary power to do so, which we have not.

The judgment is affirmed.


author: Per Curiam,

text:
    Martin, Appellant, v. Davis.
    January 13, 1906:

      Husband and wife — Married women — Earnings of wife — Debt of husband— Execution.

    Money earned by a'married woman before her marriage and by keeping boarders afterwards cannot be taken in execution to satisfy the debt of her husband.
    A wife is entitled to the avails of her separate property though the labor of her husband mingles in the production.
    Argued Dec. 14, 1905,
    Appeal, No. 93, Oct. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1895, No. 739, refusing to take off non-suit in case of Thomas J. Martin, Jr., v. Louis Davis, defendant, and the Commonwealth Title Insurance & Trust Company, garnishee.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Attachment execution.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court refusing to take off nonsuit.

      Thomas Diehl, with him Thomas J. Martin, Jr., for appellant.

      Max Graft, for appellee.
   Per Curiam,

Upon a judgment for 150.00, entered by the plaintiff against Louis Davis in 1895 and revived in 1901, the plaintiff issued an attachment execution in the latter year, and summoned the Commonwealth Title Insurance and Trust Company as garnishee. Upon the trial of the issue between the plaintiff and the garnishee the former called Bella S. Davis and her husband, Louis Davis, as if under cross-examination, and from them and other witnesses elicited testimony to the effect, that about four months before the attachment issued one William S. Reaney conveyed his interest in certain real estate to Bella S. Davis for the consideration of $1,500; that the money used in making the purchase was lent to her by one Albert P. Hill, to whom she gave her judgment note, which was duly entered of record; that at the time of making this loan she was the ostensible owner of interests in other pieces of real estate which she had acquired several years before; that about three months after her purchase of the Reaney interest she sold it for $4,150 ; and that after repaying the Hill loan and expenses she deposited the balance in her own name with the garnishee. It is the money thus acquired and deposited by Bella S. Davis that the plaintiff seeks to hold for her husband’s debt. It was intimated in the plaintiff’s examination of Mrs. Davis that the titles to the several interests in real estate held by her at the time of the loan above mentioned, upon the credit of which it may be inferred she obtained the loan of $1,500, were simply put in her name in order to shield them from her husband’s creditors. This, however, was explicity denied by her, and was not supported by any direct testimony, or by any testimony as to the indebtedness of Louis Davis or his ownership of property at the time these interests were acquired, from which it could be inferred that the title was put in her name with the actual intent to defraud creditors, or, whatever the intent, that the effect would be to defraud his creditors. So far as the testimony shows, the only debt he owed at the time she acquired these interests was represented by the $50.00 judgment above mentioned, and there is not any evidence that he was not the owner of property amply sufficient to meet any indebtedness that he may have had at that time, or that he was engaged in, or about to engage in, a hazardous business. On the other hand, the testimony was uncontradictéd that these interests were purchased with money which Mrs. Davis had earned before her marriage and by keeping boarders afterwards, and were not derived by gift or otherwise from or through her husband. We do not say that it would not have been competent for the plaintiff to have contradicted this testimony. It is unnecessary to discuss that question. He did not attempt to contradict it, although that could easily have been done if it was not truth; that is to say, Mrs. Davis testified to facts which it would have been feasible for the plaintiff to contradict if her testimony as to the acquisition, safe keeping and disposition of the money was untrue. The facts essential to sustain her title to the fund, even as against the plaintiff, who became a creditor of her husband in 1895, having been developed by the plaintiff in the presentation of his own case, and no testimony having been adduced by him contradicting or qualifying the testimony as to those facts, the court was clearly right in awarding a compulsory nonsuit. A verdict in favor of the plaintiff could not have been sustained upon his own showing. The mere fact that the purchase of the Reaney interest, and the making of the loan from Hill were accomplished through the agency of her husband would not warrant a different conclusion from that above stated. It was well settled prior to the passage of the liberal acts of 1887 and 1898, and is equally true now, that a wife is entitled to the avails of her separate property though the labor of the husband mingles in the production.

The judgment is affirmed.


text:
    Commonwealth v. Clymer, Appellant.

      Constitutional law — Title of act — Practice of medicine — License—Act of May 18, 1893, P. L. 94 — Criminal law.

    The Act of May 18,1893, P. L. 94, entitled “An Act to establish a Medical Council, and three State Boards of Medical Examiners, to define the powers and duties of said Medical Council and said State Boards of Medical Examiners, to provide for the examination and licensing of practitioners of medicine and surgery, to further regulate the practice of medicine and surgery, and to make an appropriation for the Medical Council,” is constitutional, and gives sufficient notice of the provision contained in sec. 14 of the act making a violation of the provisions of the act relating to the practice of medicine without a license, a misdemeanor.
    On a prosecution for practicing medicine without a license, a clerk in the office of the state superintendent of public construction may testify that he had examined the record of the state medical council, and that he had not found the defendant registered therein; and this is especially the case where the record produced from the office of the prothonotary shows that none of the papers filed by the defendant for the purpose of registration was a license issued by the Medical Council of the state, and that in the affidavit filed by the defendant in the prothonotary’s office the clauses of the blank relative to the state license had been all erased.

      In a prosecution for practicing medicine without a state license, it is not necessary for the court to instruct the jury as to the law of costs in case of acquittal.
    Argued Dec. 12, 1905.
    Appeal, No. 217, Oct. T., 1905, by defendant, from judgment of Q. S. Lehigh Co., April T., 1905, No. 85, on verdict of guilty in case of Commonwealth v. R. S. Clymer.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Indictment for practicing medicine without a state license. Before Trexler, P. J.
    At the trial when H. H. Fleisher, a clerk in the office of the state superintendent of public construction, was on the stand, he was asked this question:
    “Q. And those records are the official records of the office ? A. Yes, sir. Q. And they are under the control of the superintendent of public instruction, who is a member of the board? A. Yes, sir. Q. And Doctor N. C. Schaeffer is a member of that board? A. Yes, sir.. Q. Did you examine that record? A. Yes, sir. Q. From what time to what time did you examine it? A. From June, 1894, up to the present time. Q. When you say from June, 1894, up to the present time, what time do you mean, up to yesterday or day before ? A. Up to April 11, 1905. Q. Were there any examinations before the board prior to Juné, 1894 ? A. I don’t know. Q. Is there any record prior to that time ? A. No, sir. Q. In examining the record did you find the name of one R. S. Clymer upon it ? ”
    Mr. Schaadt: This is objected to as incompetent and irrelevant.
    The Court: The court is of the opinion that the records are not within the jurisdiction of the court and the objection is overruled.
    The defendant asks for a bill, and further objects to the testimony of the witness as incompetent and irrelevant, because if the records are not able to be produced in court, then the next best testimony are certificates under the hand of the proper officer and the seal of his department, and because sec. 12 of act of 1893 provides that the record of the state medical board of examiners shall be open to public inspection, and in all legal proceedings shall have the same weight as evidence that is given to the conveyance of land.
    The Court: The objection is overruled and bill sealed for defendant. [3]
    Senator Dewalt: “ Q. Did you find in your examination of the records from June, 1894, up to and including April 11, 1905, the registration of any such person as R. S. Clymer? A. I did not. Q. Did you make such search? A. Yes, sir, I did. Q. Is there any such registration? A. There is not. Q. There is no such name upon your books ? A. No, sir.”
    The court charged in part as follows :
    [Now, if you find that the defendant has not passed the state board examination and has not duly registered under the act, then it is your duty to convict. You are judges of the law and the facts. If a lawyer in his address to the jury, makes a misstatement and the man is acquitted thereby, that mistake can never be corrected. If the court in its instruction to the jury makes a misstatement, that mistake on the part of the court can be corrected on appeal to a higher court, which is the privilege in every case, so that I state to you as a matter of law, if you find that Dr. Clymer practiced medicine, without first having passed the state board examination, then he is guilty of a violation of the act; if he has failed to comply with any other provision of the act, to which he is liable under the act, he is guilty of its violation.] [4]
    [If I were on the jury, I would have no difficulty in bringing in a verdict of guilty, but as I said before, that you can do or not as you see fit, under your conscience and under the oath. It is your duty to take the law from the court, and the best evidence of the law, considered only as evidence, is that which the court gives to you, and I think I can safely leave this matter in your hands ; that you will do what is right; the verdict should be of guilty or not guilty.] [5]
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned among others were (3) rulings, on evidence, quoting, the bill of exceptions; (4, 5) above instructions, quoting' them.

      January 13, 1906:

      C. Oscar Beasley, with him James L. Schaadt, for appellant.
    —The act of 1898 is unconstitutional: Com. ex rel. v. Samuels, 163 Pa. 283.
    It was error to admit oral testimony as to the state record: Garwood v. Dennis, 4 Binney, 314; Carkhuff v. Anderson, 3 Binney, 4; Talbot v. Jansen, 3 Dallas, 133; United States v. Johns, 4 Dallas, 412; Scott v. Leather, 3 Yeates, 184; Stoever v. Whitman, 6 Binney, 416; Salmon v. Rance, 3 S. & R. 311; Jones v. Ross, 2 Dallas, 143; Hockenbury v. Carlisle, 1 W. & S. 282.
    The judge xxxay upon the trial of a case express an opinion upon tlxe facts if they are propex-ly referred to the jury, but care should be taken not to infringe the provixxce of the jury so as to relieve thexn from the xxecessity of pronouxxcixxg axx intelligent judgment: Ditmars v. Commonwealth, 47 Pa. 335; Leibig v. Steiner, 94 Pa. 466; Kilpatrick v. Com., 31 Pa. 198; Kane v. Com., 89 Pa. 522; Com. v. McManus, 143 Pa. 64.

      A. G. Dewalt, with him H. W. Schantz, district attorney, for appellee.
    — The act of 1893 is constitutioxxal: Com. v. Rothermel, 27 Pa. Superior Ct. 648; Com. v. Silverman, 138 Pa. 642; Com. v. Green, 58 Pa. 226; Yeager v. Weaver, 64 Pa. 425; Com. v. Lloyd, 2 Pa. Superior Ct. 6; Washington Boro. v. McGeorge, 146 Pa. 248; Com. v. Jones, 4 Pa. Superior Ct. 362.
    The testimony of Fleisher was proper: Com. v. Wenzel, 24 Pa. Superior Ct. 467.
   Opinion by

Rice, P. J.,

It is argued that the Act of May 18, 1893, P. L. 94, is unconstitutional, because the subject of legislation is xiot cleaxiy expressed in the title. The particular objection is that the title gives no notice of the provision, contained in the fourteenth section, making a violatioxi of any of the provisions of the act, especially those relating to practicing xxxedicixxe or surgery without license and registration, a misdexxxeanor punishable by fine. Inasmuch as the subject of legislation, as expressed in the title, is the examination and licensing "of practitioners of medicine and surgery and the further regulation of the practice of medicine and surgery, any one would naturally suppose from reading tlie title that the act not only provided for the licensing of such practitioners but declared the consequences of practicing without complying with its provisions. “For,” as Blackstone says, “it is but lost labor to say, ‘do this, or avoid that,’ unless we also declare, ‘ this shall be the consequence of your noncompliance.’ We must therefore observe, that the main strength and force of law consists in the penalty annexed to it.” Bl. Com. Introd. 57. It is not to be supposed that this would be omitted from such legislation as is described in this title, and any one reading it would be led to look into the body of the act to see what consequences it attaches, penal or otherwise, to noncompliance with its provisions. The fact that a title as broad as this does not expressly declare that a violation of the provisions of the act is made a penal offense is not a valid objection. This has been decided in numerous cases wherein the precise question has been duly considered, and Mansfield’s Case, 22 Pa. Superior Ct. 224, which is cited by the appellant’s counsel as. authority for a different conclusion, is not in conflict with them, as an examination-of Judge Porter’s opinion will show. Amongst these cases are Commonwealth v. Sellers, 130 Pa. 32; Commonwealth v. Silverman, 138 Pa. 642; Commonwealth v. Muir, 1 Pa. Superior Ct. 578; s. c. 180 Pa. 47; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5; Commonwealth v. Rothermel, 27 Pa. Superior Ct. 648. The constitutionality of the act was under consideration in Commonwealth v. Finn, 11 Pa. Superior Ct. 620, and again in In re Registration of Campbell, 197 Pa. 581. In the latter case the sufficiency of the title as notice of the provision for registration was affirmed in a statement of general principles which fully covers the objection raised in this case.

The admission of the testimony of the statistical clerk, who assisted in keeping the records of the medical council and the state board of medical examiners, that he had examined them and could not find the name of R. S. Clymer therein was not prejudicial error, even though this mode of proving the contents of the record was open to objection. In view of the fact that these records are voluminous and are kept at Harrisburg, and df the great .inconvenience that would be caused by compelling their production for the inspection of the jury, we are not prepared to declare that this testimony was not admissible; but it seems unnecessary to go into a discussion of that question because, according to the doctrine of Commonwealth v. Wenzel, 24 Pa. Superior Ct. 467, and in view of the state of the record produced from the prothonotary’s office, it was not incumbent upon the commonwealth, in the first instance, to prove that the defendant had no license.

The fact that the defendant practiced medicine as alleged in the indictment was established by abundant testimony and was not in dispute. The legal question was whether he had a right to do so; to be more explicit, whether he had complied with the provisions of the act of 1893. The record produced from the office of the prothonotary, taken in connection with .the uncontradicted testimony of the deputy, showed, that none of the papers exhibited by the defendant for the purpose of registration was a license issued by the medical council of Pennsylvania, and no such license was produced on the trial, or was proved and its nonproduction accounted for. Moreover, in the affidavit filed by the defendant with these papers the clauses of the blank relative to the exhibition of a license issued by the medical council, and to compliance with the provisions of the act of 1893, were all erased, thus showing that the defendant was careful not to assert that he had any such license, or that he had complied with the provisions of the act. In view of these facts the court was justified in expressing to the juiy his opinion as to what the verdict should be. It is often permissible and sometimes advisable for a judge in his charge to the jury to express an opinion upon the facts, provided he does it fairly and does not give a binding direction as to them: Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497 and cases there cited. It is even more appropriate for him to do so where the case depends as fully as this did upon questions of law and the construction of public records. We are not convinced that the judge went farther than he was warranted in doing; indeed, even if he had still more explicitly instructed the jury that the record produced from the prothonotary’s office showed that the defendant did not exhibit to the prothonotary a license issued by the medical council of Pennsylvania, we cannot say that this would have been error.

The complaint that the court should have instructed the jury as to the law of costs in case of acquittal is without merit. No such instructions were asked and it was not important for the jury to know what the law was upon that subject in the event of their finding the defendant guilty. We have no right to suppose that if the judge had charged them fully upon that subject their verdict would have been different.

All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.


author: Beaver, J.,

text:
    Horine v. Mengel, Appellant.

      Trusts and trustees — Equity—Accounting—Remedy—Laches.
    Where a person acts as trustee for others of a fund raised by the sale of property, and the accounts of the trust are involved and complicated, a bill in equity is the proper remedy against the trustee for an accounting. In such a case a delay of eight years will not relieve the trustee of an accounting where it appears that the trustee was an attorney at law, and that several years were spent by other attorneys in endeavoring to secure settlement without suit. The statute of limitations has no application in such a case.
    Argued Nov. 15, 1905.
    Appeal, No. 176, Oct. T., 1905, by defendaut, from decree of C. P. Equity Docket 1904, No. 865, on bill in equity in case of M. C. Horine v. Ralph H. Mengel.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Bill in equity for an accounting.
    The opinion of the Superior Court states the case.

      Error assigned was the decree for an accounting.

      Cyrus G. Derr, with him Ralph E. Mengel, for appellant.
    When by a dismissal of all other matters a bill in equity is reduced to one simply praying that the appellant pay to the appellee a fixed sum of money, such bill because there is adequate remedy at law becomes unmaintainable.

      January 13, 1906:
    Where the appellee in a bill has allowed more than eight years to elapse after the accruing of his claim before initiating his proceeding, and the appellant pleads laches and that the claim is stale, the bill should be dismissed because equity follows the analogy of the statute of limitations, wherefore the appellee in this ca,se having allowed more than eight years to elapse before filing his bill, and the appellant having availed himself of the plea of laches and staleness of claim, the bill should have been dismissed: Neely’s App., 85 Pa. 387; Ashhurst’s App., 60 Pa. 290; Gandolfo v. Hood, 1 Pears. 269; Spering’s App., 71 Pa. 11; Campbell v. Boggs, 48 Pa. 524; Guarantee Trust, etc., Co. v. Natl. Bank, 202 Pa. 94.

      C. H. Ruhl, with him B. Y. Shearer, and Joseph R. Dickinson, for appellee.
   Opinion by

Beaver, J.,

The defendant was a trustee for the plaintiff and nine or more other persons who were interested in a fund raised by the sale of the estate of Paul C. Horine. This fact is not only found by' the court but is stated by the defendant himself in the account which he rendered of the management of the fund. Tlie caption of the statement of receipts and expenditures is : “ The account of Ralph II. Mengel, trustee of funds of Paul C. Horine in my hands to pay off claims of John N. Obold et ah” He also signs the account as “ Counsel and Trustee for P. C. Horine Fund.” The finding of the court, therefore, based upon the defendant’s own admission and upon the very nature of the transaction, is scarcely open to question. Defendant was a trustee. He represented a variety of interests. His payments for costs, charges and expenses in reference to all of the parties for whom he was a trustee were involved. This being settled, was the plaintiff’s remedy equitable or legal ?

We have lately considered this question in Burton v. Trainer, 27 Pa. Superior Ct. 626, in which what was said in Reeside’s Executor v. Reeside, 49 Pa. 322, is quoted, and the later cases considered. We have no doubt, from a consideration of all the cases, that, the plaintiff’s remedy was in equity.

It is true that the bill was filed eight years after the rendition of the statement of his receipts and expenditures by the defendant. The court, however, took into careful consideration all the facts connected with that statement and the time when the plaintiff was enabled to secure a copy thereof, together with the fact of his serious illness, and the further fact that for four years several attorneys employed by the plaintiff from time to time ineffectually labored to secure a settlement on the part of the defendant. The court very properly observes that, “ As to the question of laches, what constitutes laches and what not depends upon circumstances; nor are the natural reluctance of members of the bar to proceed to extremities against one of their fellows, or the equally natural hesitation of clients to hale their attorneys into court circumstances to be treated as of little ¡weight. It stands to reason that both the one and the other will resort to negotiations, persuasion, attempts at amicable arrangement as long ai there appears any prospect of .succeeding by these means.” The delay in this case does not seem to us to have been either inequitable or hurtful to the defendant’s interests.

The statute of limitations has no application here, as claimed by the defendant, because, by his own admission, the funds in his hands were trust funds and the statute has no application “ to express trusts cognizable in equity.”

The refusal of the court below to sustain the defendant’s exceptions to the findings of fact for the most part constitutes the remainder of the assignments of error. Although numerous, they need not be considered in detail here. We have, however, carefully examined them in connection with the testimony and are unable to find any failure on the part of the court to fairly weigh all the facts in the case and, in weighing them, to reach a right conclusion.

The case was heard with patience, the findings of fact are set forth in detail and are again considered by the court in its opinion, dismissing the exceptions filed thereto. Both the original findings and the conclusions of law based thereon and the opinion of the court dismissing the defendant’s exceptions are exhaustive and are their own best justification. We can say nothing which would add to their strength or clearness.

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


text:
    Wilson v. Union Transfer Company, Appellant.
    January 13, 1906:

      Negligence — Wagons—Conductor of trolley car — Evidence.
    In an action by the conductor of a trolley car against the owner of a wagon to recover damages for personal injuries, a verdict and judgment for plaintiff will be sustained where it appears that the wagon was heavily loaded with trunks, some of which projected over the side of the wagon, that when the car came abreast of the wagon, the. driver saw it, but instead of driving straight ahead, turned his horses towards the curb thereby swinging the end of the wagon towards the car and striking and injuring the plaintiff.
    Argued Dec. 12, 1905.
    Appeal, No. 16, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 1152, on verdict for plaintiff in case of Jonathan D. Wilson v. Union Transfer Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Finletter, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $300. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Lewis H. Van Dusen, with him John Scott, Jr., for appellant,
    cited: Dennison v. North Penn Iron Co., 22 Pa. Superior Ct. 219; Osterheldt v. Peoples, 208 Pa. 310; Patton v. Traction Co., 132 Pa. 76; Gilmore v. Ry. Co., 153 Pa. 31; Davidson v. Traction Co., 4 Pa. Superior Ct. 86.

      Francis G. Gallagher, for appellee,
    cited: Osterheldt v. Peoples, 208 Pa. 310.
   Opinion by

Beaver, J.,

The refusal of the court to affirm the tenth point of the defendant — “ Under the facts, the verdict must be for the defendant” — is the only error assigned. Was there anything in the case for the jury ?

The plaintiff, in his testimony, states the case as follows: “ On August 8, in the neighborhood of two o’clock in the afternoon, while going north on Twenty-first street, there was a car preceding my car, going north, and there was a union transfer wagon in front of that car, and the motorman rang him off. And we were in the specified space of the transit company in the rear of the preceding car, and this car, after it had passed —the preceding ear — the wagon attempted to pull in. My motorman rung him off. ITe turned towards the curb again, and seeing there was a straight way to go ahead, the motorman passed on. Fully one-half of the car got past the wagon, and after I saw the front end of the car — as we all do — I knew there was space for the whole car to pass, if the front was passed, unless otherwise interrupted by the team pulling in. After I saw there was room I went on to collect my fares in the discharge of my duties. While collecting the fares, whatever intervened between that time by the wagon pulling in, it struck me on the head and knocked me off and ran over my leg.”

One of the plaintiff’s witnesses said: “ McKean street car I think it was. The transfer company’s wagon was ahead, loaded with trunks. And the first car rung out and passed him, and he started to pull in again, and the motorman of our car rung him out, and he pulled out sufficient to clear the front part of the car. Had he remained in the same position, he would have cleared it shortly, but attempting to pull to the curb, the tailboard of his wagon came towards the ear and caught the conductor.”

The version of the occurrence given by the driver of the wagon was: “ The car rung for me to pull out, and I pulled out, and there was another car right behind him. And he rung his bell, and I still stayed where I was, and when I seen it was a summer car I pulled over further towards the curb to get out of the road of him, and after I had pulled a little further somebody hallooed at me. The conductor had struck himself, which I didn’t see myself. They told me I had hurt somebody.” In answer to the question “ When you got the bell what did you do ? ” he said “I still stayed out there and pulled a little more towards the curb.”

The wagon of the defendant was loaded with trunks, twenty-seven in all, as the driver states, which, in his language, “hung out on the side,” and that, by reason thereof, he was unable to see what was behind him. He admits, however, that he saw the car when it came abreast of him. This, of course, was notice that there was room to pass. Instead, however, of maintaining his position, he pulled, according to his own statement, nearer the curb. This swung the rear end of his wagon nearer the car (a summer car), passed a number of passengers who were on the running board, struck the conductor and knocked him from his car to the street, and avoided a passenger who was in his rear only by the latter jumping on the rear platform.

Who was responsible for the injury ? The court could not say, as a matter of law, that the driver of the defendant’s wagon was not responsible for it. If he had maintained the status quo when he saw the front of the car abreast of him, there would have been no accident. Was he bound to anticipate that, in turning further to the curb, the end of his wagon might be thrown nearer the car ? Surely these were questions for the jury. They are not legal questions. ' They are those of fact and, as such, it was the province of the jury to deal with them. There is no criticism as to the manner in which they were submitted.

The facts were simple, the case was well tried, the jury had full instructions, the verdict was moderate, and we think the judgment should stand. It is affirmed.

Morrison and Porter, JJ., dissented.


author: Henderson, J.,

text:
    Ferris v. Lutes, Appellant.

      Affidavit of defense — Practice, C. P. — Landlord and tenant.

    In an action for rent where the statement avers payment in advance of rent for a previous month and that the defendant requested the plaintiff to send a bill for the rent, an affidavit of defense is sufficient which denies any payment of rent for a previous month or any agreement or contract for rent of the premises, &t the rate charged, or at any other rate. In such a ease the omission to deny the averment as to the request for a bill for rent, does not amount to an admission that the rent was due.
    Submitted Dec. 18, 1905.
    Appeal, No. 218, Dec. T., 1905, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1905, No. 3383, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Ferris v. Elinor S. Lutes.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for rent.
    Plaintiff in his statement of claim averred as follows :
    The said two parties to this suit entered into an oral agreement of rental from month to month, on or about September 12, 1901, under which said agreement the said defendant rented from the said plaintiff rooms 917a and part of 920, in the Drexel building, Fifth and Chestnut streets, in the city of Philadelphia, at a monthly rental of $18.25. The said defendant paid the rent for the month ending November 4,1904, in advance. The said defendant did not-give the said plaintiff any notice whatsoever of a desire to terminate the said agreement at the end of the month ending November 4,1904, but did, on the contrary, request the said plaintiff, by letter dated on or about November 12, 1904, to send bill for the rent. The said plaintiff did send this bill, and has made repeated demands, but the said defendant has refused to make payment.
    The affidavit of defense was as follows :
    Defendant denies that the parties to this suit entered into any agreement or contract whatever for the rental of any rooms whatsoever, and alleges that she did not have any agreement or contract whatsoever with Henry Ferris, plaintiff, for the rental of any rooms whatsoever at the monthly rental of $18.25 or any other sum whatsoever.
    Defendant denies that she paid rent for the month ending November 4, 1904, in advance, or at any other time. She expressly denies any liability for said rent, and expressly states that no agreement for any rental whatsoever was entered into between the plaintiff and defendant for the rental of any rooms whatsoever.

      January 13, 1906:
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Hugh Roberts, for appellant.

      H. L. Maris, for appellee.
   Opinion By

Henderson, J.,

The plaintiff’s action is based, in part, upon “ an oral agreement of rental, from month to month .... at a monthly rental of eighteen dollars and twentj^-five cents, ($18.25) ; ” and for this amount, the court entered judgment for want of a sufficient affidavit of defense. No opinion was filed, indicating the reasons of the court for entering judgment, and we do not find in the statement of claim, and the affidavit of defense, and the supplemental affidavit of defense, sufficient warrant for that action. The contract set up by the plaintiff, is denied in the most comprehensive and express terms, by the defendant. There is not only denial that she paid rent in advance for the month of November, but a direct and emphatic denial that any agreement or contract was made between her and the plaintiff, for rent of the premises, described, at the rate charged, or at any other rate, and, if true, this constitutes a good defense to that much of the plaintiff’s claim. We do not see how her defense could be set up in more' forcible terms or by a more diametrical traverse. The averment in the statement of claim, that the defendant requested the plaintiff to send a bill for the rent, is not a statement of the cause of action. The omission of the defendant to specifically deny that allegation, does not amount to an admission that the rent was due; especially, in view of the sweeping denial that any contract of lease ever existed, or that any rent was due. Affidavits of defense should not be subjected to hypercritical scrutiny. Where, according to a fair understanding of the language of the affidavit, a good defense is presented, the defendant’s right to a trial by jury, should be protected.

The judgment is reversed and the record remitted for further proceedings.


text:
    Naglee v. Naglee.

      Evidence — Receipt—M ortgage — Legacy.
    Where a receipt in writing for a mortgage for $1,500 in full payment and settlement of a legacy of $2,000 is given by a legatee together with a release of all claims on account of the legacy, and it appears that the receipt was given by an intelligent person without any fraud or undue influence and under the advice of counsel in settlement of a disputed claim as to whether the legacy was a charge on land, the receipt will be sustained.
    Argued Dec. 14, 1905.
    Appeal, No. 219, Oct. T., 1905, by Alice A. Murrow, from decree of C. P. No. 5, Pliila. Co., Dec. T., 1903, No. 2753, ou bill in equity in case of Richard M. Naglee and Helen B., his wife, and David J. Rashbam and Clara Virginia, his wife, v. William P. Naglee and Emma, his wife, and Francis Naglee and Louise, his wife.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Bill in equity for partition.
    The case was referred to Edward W. Magill, Esq., as master.
    Before the master, Alice Murrow claimed the sum of $500 from the distributive share of Clara V. Naglee. A receipt was produced signed by Alice A. Murrow acknowledging the receipt of a mortgage for $1,500 in full satisfaction of a legacy of $2,000.
    Other facts appear by the opinion' of the Superior Court.
    The master disallowed the claim.
    Exceptions to the master’s report were dismissed by the court.

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

      Jay Rich Grier, with him James R. Grier, for appellant,
    cited: Naglee’s Estate, 20 Phila. 179; Craig v. Craig, 5 Rawle, 91; Darlington’s Est., 147 Pa. 624; Dickinson’s Estate, 28 W. N. C. 94; McLanahan v. Wyant, 2 P. & W. 279; Rapp v. Rapp, 6 Pa. 45; Mortland v. Himes, 8 Pa. 265.

      Ruby R. Vale, for appellee.

      January 13, 1906:
   Opinion by

Henderson, J.,

The master and the court below were of the opinion that the appellant is concluded, by her receipt and release of September 8, 1887, and this is the first question for our consideration, for, unless she has made it appear that the paper referred to is not what it purports to be, the case was rightly decided. It is not alleged that there was any fraud, deceit, ■misrepresentation or undue influence, practiced or exercised, in procuring the release. The appellant is an educated and intelligent person. She was represented by counsel, under whose advice the receipt was executed. It was read to her, after which she signed it. The document is formal in its terms, and acknowledges the receipt of a mortgage for $1,500 in full payment, settlement and satisfaction of the legacy of $2,000, bequeathed to her. Tt also contains a release and quitclaim to the estate of the testator, and to his executor and devisees, of and from all claim, for or on account of the legacy of $2,000, and “ every part and parcel thereof and all interest thereon,” and thus expressly discharges both the estate and the devisees from any claim on account of the legacy. The mortgage, referred to in the receipt, was executed by the executor and three of the devisees. The other devisee was a minor, and, therefore, incompetent to join in its execution. It was given to make secure to the appellant, the sum of $1,500, and was accepted by her, on the advice of her attorney, that “ to have half a loaf is better than no loaf at all.” In the language of the appellant, “ He thought it would be better to accept that, than to not accept any at all.” The decided preponderance of the evidence is to the effect that the mortgage was given to settle a claim, the validity of which, as a charge on the land, was denied by the executor and devisees. The taking of the mortgage, and the delivery of the release for the whole of the bequest, was a transaction only consistent with that view of the case. The appellant is wholly unsupported in her allegation that she intended to claim the full amount of the legacy, and her testimony is insufficient to overcome the receipt and release, which she executed at the time of the delivery of the mortgage, and the other evidence introduced by the appellees. Under the evidence, the master and the court below would not have been justified in reaching any other conclusion.

Our view of the conclusiveness of the receipt and release, relieves us from considering the question, whether the bequest to the appellant was a charge upon the real estate of the decedent. If the land was not charged with the legacy,’ the appellant has no standing in the distribution of the proceeds of the sale. If it was a charge on the land, she. accepted the amount of the mortgage as a consideration for the settlement of a disputed claim, choosing to take half a loaf, rather than have no bread, and as this was done without constraint, overreaching, concealment, mistake or deceit, she is precluded from a further claim on account of the bequest. The case does not require a consideration of the assignments of error severally.

The decree is affirmed.


text:
    McCurdy, Appellant, v. Orient Insurance Company.

      Insurance — Fire insurance — Covenants—Gasoline—Landlord and tenant.

    Where a policy of fee insurance contained a covenant that no gasoline should “be kept, used or allowed on the premises,” and a tenant of the insured without the latter’s knowledge sets up in the premises a gasoline -stove for domestic purposes, and a fire results from the stove destroying the building, the insurance company will not be liable for the loss.
    Argued Oct. 27, 1905.
    Appeal, No. 198, Oct. T., 1905, by plaintiff, from judgment of O. P. Northumberland Co., Dec. T., 1902, No. 261, on verdict for defendant in case of Annie M. McCurdy v. Orient Insurance Company.
    Before Rice, P. J., Oready, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Savidge, P. J.
    The court charged as follows :
    The facts of this case are not disputed. The insured, Annie M. McCurdy, was the owner of a double dwelling house on Fifth street, in the borough of Sunbury. This was occupied as a tenement house, she herself living elsewhere, and so described in the policy. So that it was understood at the time that this policy was bought that is was to be used as a tenement house. During the life of the policy, namely, July 22, 1902, the property was destroyed by fire. There is no dispute as to the origin of the fire. .
    On the preceding day the tenant had taken to the house a gasoline stove, which was in use at the time the fire took place, and the use of which occasioned the fire. They say the fire came through the use of gasoline as a fuel on the insured premises.
    The policy of insurance contains the usual clause that if there be kept, used or allowed on the premises, gasoline among other things, that it seems to me, holds that the prohibited article may be on the premises for temporary use.
    [Everything in this case indicates and shows clearly that gasoline was not temporarily to be used, on the single occasion, or on a day or two. The testimony is that it was during the coal strike. This tenant tried to get coal and could not and was using gasoline as a fuel because he could not get any other fuel.] [2]
    It would be proper to hold that if gasoline was introduced for the purpose of mixing paint or for cleaning purposes, brought in temporarily for that, or for any other merely temporary purpose, that it did not come within the prohibitory clause of the policy. But where it is brought in to be used for some length of time, and, especially to be used as fuel, it cannot be said it was there for a mere temporary purpose, in the sense the term temporary is used in the case referred to by counsel for the plaintiff.
    [It is contended that because this was not either known to, or sanctioned by, the owner of the premises the policy was not avoided and she ought to recover. We do not think the voidance of the policy is dependent upon the knowledge of the insured of the use of a prohibited article, gasoline in this case. These words are not in the conjunctive but in the disjunctive, either the keeping or the usage or the permitting to be kept or used.
    It has been argued that the plaintiff could not know what a tenant did, nor could prevent a tenent from the using of the prohibited article; that in this case this woman did not know and had ordered the tenant not to use gasoline or any of the articles prohibited by the policy. We think that makes no difference. It will not be pretended that a tenant may, notwithstanding the prohibition of the use of dangerous articles upon the premises use them habitually 'and violate the terms of the policy and jeopardize the property.] [3]
    Nor will it be pretended that the insurance company could have any means of knowledge as to what was kept on the premises, or ought to have had knowledge. It is the owner or leasor who is expected to look after the property, and see what is being done upon it, whether the terms of the insurance are being violated.. That would be reasonable and right. We think it makes no difference whether she had or had not notice, whether she did or did not command that there should be no gasoline used on the premises.
    It is high time that owners understand that they are responsible for what their tenants do.s Every policy of insurance ought to be accompanied with the notification, not only to persons insured who dwell upon the premises but especially to landlords, of the fact that these prohibitions are contained in the policy. Their attention ought to be especially called to it because it would take half a day, more or less, fora busy owner to read over, sift out and understand the fine print conditions of an ordinary policy.
    You may return a verdict for the defendant.
    The plaintiff presents a few points for me to answer.
    1. If the jury believe from the evidence that the plaintiff had forbidden the use of gasoline stoves and that the tenant took it there at supper time on the day before the fire, which occurred at 7 A. m., such use would not avoid the policy because the plaintiff was without means of knowledge, expressed or implied, and hence had not violated the contract. Answer : This is the evidence. It is not a question whether the jury believe it or not. The facts are as contained in that point, but this point is refused. [4]
    2. The words “keep, use or allow” refer to a known or continued use and cannot refer to such a use as is shown in this case. Answer: I have said to you that that is not the law, in my judgment. You might as well tear up policies of insurance, if that is the law, and say to the landlord you may have your premises insured, where the hazards are increased on account of their being occupied by tenants, at the same rate that owners have their properties insured, and you are paying for these extra hazards for the landlords’ property who don’t look after their properties. It all comes off the insured and they ought to be all treated alike. [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others, were (2-5) above instructions, quoting them.

      C. M. Clement, with him M. L. Snyder, for appellant.
    The plaintiff was not bound by the acts of the tenants done, not only without her knowledge, but against her positive protest: Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299; New Castle v. Kurtz, 210 Pa. 183; Krug v. German Fire Ins. Co., 147 Pa. 272; Bentley v. Ins. Co., 191 Pa. 276; Com. v. Switzer, 134 Pa. 383; Offerman v. Starr, 2 Pa. 394; Hill v. Pardee, 143 Pa. 98.
    The words “ keep, use or allow ” refer to a known or continued use as is shown in this case: Mears v. Humboldt Ins. Co., 92 Pa. 15; Bentley v. Ins. Co., 191 Pa. 276; London, etc., Fire Ins. Co. v. Fischer, 92 Fed. Repr. 500.

      S. P. Wolverton, for appellee.
    — Where the policy prohibits the use of a building for certain purposes, the policy becomes void if devoted to such uses by a tenant without the knowledge or consent of the assured: Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. 64; Heron v. Phœnix Mut. Fire Ins. Co., 180 Pa. 257; Lancaster Fire Ins. Co. v. Lenheim, 89 Pa. 497; Hutton v. Patrons’ Mut. Fire Ins. Co., 191 Pa. 369; Mead v. Ins. Co., 7 N. Y. 530; White v. Western Assur. Co., 18 W. N. C. 279; Whitmarsh v. Charter Oak Fire Ins. Co., 84 Mass. 581; Westfall v. Ins. Co., 12 N. Y. 289; Macomber v. Howard Fire Ins. Co., 73 Mass. 257; Diehl v. Ins. Co., 58 Pa. 443; Long v. Beeber, 106 Pa. 466; Wetherell v. City Fire Ins. Co., 82 Mass. 276; Trustees of Fire Assn. v. Williamson, 26 Pa. 196; Kelly v. Worcester Mut. Fire Ins. Co., 97 Mass. 284; McClure v. Watertown Fire Ins. Co., 90 Pa. 277; Matson v. Farm Buildings Ins. Co., 73 N. Y. 310; Steinmetz v. Franklin Fire Ins. Co., 6 Phila. 21; Duncan v. Sun Fire Ins. Co., 6 Wendell, 488.

      January 13, 1906:
   Opinion by

Henderson, J.,

The plaintiff’s policy contained the following clause: “ This entire policy, unless otherwise provided by agreement, endorsed hereon or added hereto, shall be void, if (any usage, or custom of trade or manufacture to the contrary notwithstanding,) there be kept, used or allowed on the above described premises, .benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gun powder, exceeding twenty-five pounds in quantity, naphtha, nitro-glyeerine or other explosives.” The property insured was a dwelling house. The plaintiff’s tenant set up a gasoline stove in his kitchen for domestic use, and the next day the building was burned by a fire, which originated in the kitchen. It does not seem to be controverted that the fire was caused by the ignition of gasoline. The plaintiff had forbidden the tenant to use a gasoline stove, and did not know that there was one in the house. She contends, therefore, that she is not affected by the prohibitory condition in the policy. There can be no doubt that if the plaintiff had placed the stove there, herself, she could not recover. It was set up for household use, without any definite intention as to the duration of such use, and this is expressly forbidden in the policy. White v. Western Assurance Co., 3 Sadlers’ Pa. Supreme Ct. Cases 267; Diehl v. Insurance Co., 68 Pa. 443; Long v. Beeber, Receiver, 106 Pa. 466; Hutton v. Insurance Co., 191 Pa. 369, are some of the numerous authorities, giving effect to prohibitive conditions similar to that contained in the plaintiff’s policy.

The parties were competent to contract, and the provision is a reasonable one. No allegation of misrepresentation or deceit is set up and no legal reason is suggested for disregarding the-contract. It was the privilege of the company to decline to enter into it, unless the insured agreed to exclude such inflammable substances as gasoline from the premises, and the contract was made with the express understanding that this should be done. Unless, therefore, the plaintiff is relieved from responsibility, because she was ignorant of the act of her tenant, she is not entitled to recover. The question is not one of good faith on the part of the insured, but one of contract, of absolute obligation, under a mutually understood state of facts. As between the plaintiff and defendant, the possession of the tenant was the possession of the insured. The defendant had no power to determine who should occupy the premises, nor was it a matter of concern to it, whether the insured or a tenant resided therein. It does not relieve the insured, to show that the act, violative of the contract, was done without her knowledge, by a tenant or servant. In Diehl v. Ins. Co., 58 Pa. 448 and Long v. Beeber, 106 Pa. 446, the acts alleged to have worked the forfeiture of the policies, were committed by tenants, but this was held not to affect the right of the defendant, and not to be an excuse for an infringement of the covenants of the policy. To the same effect are Trustees of the Fire Association v. Williamson, 26 Pa. 196; McClure v. Watertown Insurance Co., 90 Pa. 277; Matson v. Insurance Co., 73 New York, 310; Kelly v. Insurance Co., 97 Mass. 284; Wetherell v. Insurance Co., 82 Mass. 276; Liverpool and London Insurance Co. v. Gunther, 116 U. S. 113 (6 Sup. Ct. Repr. 306); Wood on Fire Insurance, sec. 120.

The appellant contends that the words, “ kept, used or allowed,” in the policy, should be interpreted as referring to habitual use and Bentley v. Insurance Co., 191 Pa. 276, is cited as one of the latest utterances upon that subject. In that case, the presence of benzine on the premises was not expressly prohibited. The policy provided that if the risk of the building should afterwards be increased by any means whatever, within the control of the insured, or if the building should afterwards be occupied in any way so as to increase the risk without notice to the company, the policy should be void during the continuance of such increased risk. Benzine was sprinkled over the carpets and furniture for cleansing purposes. This was deemed by the court to be a use of the most temporary and occasional character, and not an increase of the risk within the terms of the policy. In Mears v. Humboldt Insurance Co., 92 Pa. 15, the property insured contained machinery, and benzine was used to clean this machinery. In view of the subject insured, this was held not to be keeping or having the prohibited article on the premises, within the meaning of the policy. So, too, in Krug v. Insurance Co., 147 Pa. 272, it was held that a single brief violation of the terms of the policy for the necessary work incidental to the preservation of the property insured, will not be considered a breach of the condition. In Lancaster Silver Plate Co. v. National Fire Insurance Co., 170 Pa. 151, the property insured was used in the business of silver plating, and evidence was held permissive that gasoline was necessary in carrying on the business of silver plating, and that it was used when the policy was issued. Such being the case, it was considered that the insurance was taken out with reference to the business carried on, and that it was not in the contemplation of the insurer, that the business should cease because its prosecution involved the use of material included among the prohibited articles. The parties were held to have contracted with the understanding that business was to be conducted with the materials then in use, which were necessary to its operation. The cases which are supposed to support the contention of the appellant, are all distinguishable from the one now under consideration. They discriminate between the temporary or casual, and the continued or habitual keeping or use; between a keeping or use, necessarily involved in the prosecution of the business, and therefore in contemplation by the contracting parties, and the keeping or use not so involved. Where the use is so transient and incidental as not to have, in any sense, the character of continuity, the terms of the policy are said not to be violated. The appellant’s case involves a different state of facts. A positive condition of the policy forbade the use of gasoline on the premises ; notwithstanding this prohibition, a gasoline stove was placed in the kitchen for domestic use. It was there without a definite limitation of the time during which it would be used. It was not intended by the plaintiff or the defendant that it should be used in connection with the occupancy of the premises. The use cannot be said to have been temporary in the sense in which that term is employed in the adjudicated cases. A transient use is one which must be brief in the nature of things. The use in this case might have continued, so far as is disclosed by evidence, until the end of the tenant’s term. Testimony was introduced to show that the gasoline was used because of a coal strike, which rendered it difficult to secure other fuel. The evidence falls short, however, of showing an inability to secure other fuel, nor are we willing to concede that a positive condition of the policy might be persistently violated for that reason.

The judgment is affirmed.


author: Morrison, J.,

text:
    Bitler’s Estate.
    January 13, 1906:

      Promissory notes — Principal and surety — Release of surety — Payment of interest.

    A surety on a promissory note is not released from liability by the mere payment of interest by the principal, where it does not appear that the interest was paid in advance, or that the note was extended, or in any way varied in its terms.

      Decedents’ estates — Claim for services — Findings of fact.

    A finding by the orphans’ court against a claim for nursing, will not be reversed by the appellate court where the finding is based on sufficient evidence and no manifest error is made to appear.

      Appeals — Joint appeals — Decedents’ estates.

    A husband and wife are not entitled to a joint appeal from a decree of the orphans’ court, where it appears that the wife appealed as a distributee, and the husband as a disappointed claimant, and that the matters of complaint iyere entirely separate and distinct.
    Argued Nov. 13, 1905.
    Appeal, No. 236, Oct. T. 1904, by-Mary Kurtz, distributee, and John Kurtz, creditor, from decree of O. C. Berks Co., Sept. T., 1904, dismissing exceptions to adjudication in estate of Henry Bitler, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, J J.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Carrie B. Kilgore, for appellant.

      W. B. Bechtel, of Bechtel & Shallers, for appellee.
   Opinion by

Morrison, J.,

This is an attempt of Mary Kurtz, distributee, and John Kurtz, creditor, to maintain a joint appeal from the decree of the orphans’ court of Berks county. The alleged rights of these parties are separate and distinct, and they have no power to maintain a joint appeal, and for this reason their appeal might be quashed. But inasmuch as we have examined the testimony, the exceptions and the decree of the court, and have reached the conclusion that there is no merit in the assignments of error, we conclude to dispose of the appeal upon its merits.

The first assignment of error is : “ The learned court erred in allowing the claims of Jacob Dethample against the estate of Henry Bitler, deceased.” Dethample’s claims were upon four promissory notes, dated respectively October 6 and November 1, 1899, and March 12 and May 9, 1900, each payable one year after date, with interest at five per cent, and each was signed by John Bitler and Henry Bitler. It is conceded that Henry Bitler was surety on these notes, but they were jointly executed, and upon their face showed a joint liability on the part of the makers. The sole reason urged by the learned counsel for Mary Kurtz, appellant, in support of this assignment is that Dethample, from time to time, received interest due upon said notes from John Bitler, and upon this fact the argument is predicated that Henry Bitler was released. There is not a scintilla of evidence that any interest was ever paid in advance, or that Dethample accepted any money or valuable thing, or entered into any agreement whereby he varied the terms of the contracts, as evidenced by the notes, by agreeing to any extension of time, or otherwise.

In support of the contention that- the payment of interest upon the notes released the surety, a number of decisions are cited, and among them Riddle v. Thompson, 104 Pa. 330. But that was a case where the payee agreed to a valid extension of time for the payment of the obligation, without the consent of the surety, and of course, under all of the decisions, such extension released the surety.

The argument of the counsel that “ an agreement between the creditor and the principal debtor, which varies essentially the terms o£ the contract by an extension of time, or otherwise, without the assent of the surety, will discharge the latter from responsibility,” is good law, but the difficulty in the present case is that the payee did nothing to change the contract by an extension of time, or otherwise. It is equally good law that a mere forbearance on the part of the creditor will not discharge the surety. The question raised by this assignment is so well settled, and the ruling of the court being strictly in accordance with the facts and the law, it is unnecessary to cite other cases or to spend time in a further discussion of this assignment, as it cannot be sustained.

The second assignment is : “ The learned court erred in refusing'to allow the clainf of John Kurtz against the estate of Henry Bitler, deceased.” A careful reading of the testimony, the opinion of the court and the exceptions, satisfy us that this exception is entirely without merit. After the death of Henry Bitler, John Kurtz presented a claim against the estate for $386, alleged to be due him for nursing the deceased. The testimony offered in support of this claim, in our.opinion, shows a labored effort to sustain a worthless claim against a dead man’s estate. The evidence tends to show that the deceased was able to be about the house and out of doors frequently almost to the day of his death, and it further shows that John Kurtz was staying at the home of the deceased engaged zealously in courting his daughter, during the old gentlemen’s last illness, whom he subsequently married. The evidence also shows that John Kurtz executed and delivered, after the death of Henry Bitler, the following receipt: “ Gibraltar, Pa. May 11, 1903. Received of Rebecca M. Bitler, one of the executors of the estate of Henry Bitler, deceased, $25.00, for nursing Mr. Bitler. John Kurtz.” It may be that there was evidence from which the court could have found that the services were rendered by John Kurtz and that they were of greater value than the amount actually paid him. On the other hand, there was also evidence consisting of circumstances which tended to cast serious doubt upon the bona fides of his claim. The receipt, while it may not be necessary to consider it as in full, is consistent with the claim of the appellee that it was for a payment in full for all his services. The appellant’s claim rested upon oral testimony of witnesses and the court who heard them and observed their manner of testifying was better able to judge of the credibility of the testimony than this court. It is a case where the finding of a court that the claim was not sustained ought not to be set aside except for manifest error and we do not discover any such error.

The question as to the competency of John Kurtz and his wife to testify as to the circumstances under which the receipt was given is not raised by either of the assignments of error, therefore it is dismissed without discussion or decision.

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