ADMINISTRATION—Continued.

Under the Act of March 15, 1832, a creditor of a de cedent, to have status to apply for letters, must be a principal creditor, and it is a discretionary matter with the register whether he shall grant the letters to such creditors, in default of next of kin, or to any fit person to be selected. Id.

Grant of administration_d. b. n. c. t. a. in place of one of two executors. See EXECUTORS, Packer v. Owens, 423.

ANNUITY CHARGED ON LAND-Continued. the arrearages of the annuity accrued while M. was not an owner of the land, he owed C. nothing, and the administrator could not set-off the claim for annuity in an action by M. for goods sold; (b), that M. was under no obligation to either F. or A. to pay the annuity, the cov enant with their predecessor in title being a personal one only. Clippinger's Estate, 18.

Whether interest should be allowed upon arrears of an annuity charged upon land is a question to be decided by a jury in view of all the facts of the case. Rohn v. Odenwelder, 181. ANTE NUPTIAL CONTRACT. While an an

See LEGISLATION, Krecker v. Shirey, 165. ADMINISTRATOR. See EXECUTOR. AFFIDAVIT OF DEFENCE. An affidavit of defence which does not allege any facts or circumstances, te-nuptial agreement between a woman and a man whom upon which to found a belief, is unavailing, and the mere she is about to marry may, in equity, be given effect to averment of a belief without stating the facts upon which sustain the provisions of a will, made before marriage, as it is founded does not give any information to the Court to him, such agreement has no effect whatever upon the upon which it can determine its efficiency. Second question of revocation by marriage, with respect to the National Bank of Clarion v. Morgan, 484. rights of third parties. Craft's Estate, 413.

AGENT. The fact that an agent, appointed to col lect rent, is a joint owner with his principal of the premises out of which the rent arises, does not interfere with the right of the principal to revoke the agency. Barrett v. Bemelmans, 76.

Where the agent of the lessor occupies a position of trust and confidence towards the lessee, a stipulation for a secret profit to himself is sufficient fraud to vitiate the contract. (O. C.) Heckman's Estate, 199.

A power of attorney to mortgage establishes simply the relation of principal and agent between the parties to it, Campbell v. Foster Home Association, 293.

An agent to sell has no right to take payment in any thing but money, unless specially authorized so to do, and if, without special authorization, he take in payment for the property of his principal anything else, he at once becomes liable to the principal for the money value of the thing sold. Paul v. Grimm, 451.

A letter of attorney authorizing an agent to sell property "for such sum or price and on such terms as to him shall seem meet," and to receive all sums of money due on account of the sale and "to compound and agree on the same does not authorize the attorney to take payment in bonds. "Terms" in such connection, means the times and amounts of payment and, if any payments are deferred, it may embrace stipulations as to how such payments are to be secured. "Price," in the same connection does not differ in its meaning from "sum." Id. Change of conditions of contract by agent. See CONRobinson v. Baird, 561. ALLEGHENY COUNTY. See SALARIES. McCleary v. County of Allegheny, 193.

TRACT.

AMENDMENTS. Where an Act permits amendment of liens without specifying the time within which the amendment shall be made, it may be made at any time before the statute of limitations has closed on the claim itself. City of McKeesport v. Busch, 564.

APPEAL. An appeal, with security, taken in due time, is a supersedeas to a decree under the Act of June 19, 1871, P. L. 1361, approving a plan by which one railroad may cross the tracks of another, and, pending such an appeal, the Supreme Court may enforce the supersedeas by an order restraining the appellee, whose plan has been approved, from proceeding with the construction of the crossing. Citizens Passenger Ry. Co. . East Harrisburg Passenger Ry. Co., 12.

A judgment cannot be stricken off except for want of jurisdiction or other fatal irregularity apparent on its face, and an appeal from a refusal to strike off a judgment brings up the record alone. City of Philadelphia v. Jenkins, 276

No appeal lies from an order of the Common Pleas reinstating an appeal from an alderman, which appeal had on motion been stricken off; such order is interlocutory only and simply determines that the case is properly in the Common Pleas. Cupples Wooden Ware Co. ". Howe, 374.

A decree refusing to set aside a lev. fac. is a final decree and an appeal lies therefrom. In such appeal terre tenants of the premises are proper parties. Packer. Owens, 423.

Where a judgment binding certain land is satisfied of record and afterwards the satisfaction is stricken off, the terre tenant has the right to appeal from the order striking off the satisfaction. Whitesell & Sons v. Peck, 540.

Until the final disposition of a case and an order in pursuance thereof, it cannot be the subject of review by the Supreme Court, hence an order in habeas corpus proceedings for the possession of a child, which contains the provision that the writ itself shall stand over as a pending writ is not a subject of an appeal. Commonwealth ex rel Parker v. Blatt, 469.

ARBITRATION. As a basis for the reference provided by the Act of 1810, an action should be pending ANNUITY CHARGED ON LAND. M. own-before a justice of the peace, and it should appear that ing land charged with an annuity to C., sold the land to the plaintiff's claim exceeds five dollars and thirty three F., and subsequently agreed to protect the land from the cents, and that one of the parties refused to submit to the annuity. He continued for some time to pay to C., but on determination of the justice. Climenson v. Climenson, C.'s death the annuity was in arrears. C.'s administrator 471. brought action against F. for arrearages and obtained a judgment which was paid by F.'s vendee A., to prevent the sale of the land. In this action M. was requested to allow the use of a claim which he had against C. as a set-off, but he refused and subsequently obtained judg. ment on the claim against the administrator for $330, the Court, however, restricting the judgment by an order that it should not be used or assigned until the auditor's report of distribution of C.'s estate should be confirmed. The auditor awarded the amount of M.'s judgment to A., and the Court confirmed the report: held, (a), that as

When parties appear before a justice and state that they have agreed to an arbitration, name the arbitrators and the time and place fixed for hearing, and the justice enters the agreement upon the docket under the caption "amicable action," the reference is at common law and not under the Act of 1810, and the case is not altered by the fact that the arbitrators return their award to the justice, instead of handing it to the successful party. Id.

ARCHITECTS CERTIFICATE. As condition to bringing action. See CONTRACT. Robinson, Baird, 561.

ASSIGNEE. See ASSIGNMENT FOR BENEFIT OF ASSIGNMENT FOR BENEFIT OF CREDI.
CREDITORS.
TORS-Continued.

ASSIGNMENT FOR BENEFIT OF CREDITORS. Where money of a county is deposited by its treasurer in his own account in bank, but is known by the banker to be county funds, and the banker has become possessed of county warrants, his claim upon said warrants is subject to be set-off by the amourt of the deposit of county funds in his hands, and the warrants will be regarded as paid, if the money on deposit exceed the amount of the warrants. This rule will apply as against the banker's assignee for benefit of creditors. County of Crawford v. Merchants National Bank, 133.

An assignee for the benefit of creditors is not a purchaser, within the meaning of the rule which protects lien creditors or vendees for value. (C. P.) In re Assigned Estate of the Goodwin Gas Stove and Meter Co., 234.

As between other lien creditors and the Commonwealth, the latter must be postponed when a certificate of lien has not been filed by the auditor-general in pursuance of the Act of 1827, but the Commonwealth's lien has priority over the claims of general creditors claiming under an assignment. Id.

When an assignee is discharged or removed, the Court having jurisdiction of his account must ascertain what is in his hands and, by its decree, order him to pay over to his successor the trust funds. Hurst v. Freeman, 235.

When an assignee is discharged or removed and there is no decree that he shall pay over it must be conclusively taken in any collateral proceedings that the Court which discharged or removed him found no funds in his hands. Id.

In a proceeding under the Act of June 14, 1836, for the removal of an assignee, it is improper for the Court to appoint a master. It is the duty of the Judge to decide upon the examiner's finding of facts, without the intervention of a master. In re Assigned Estate of Powel & Co., 237.

In a first account, an assignee claimed and was allowed credit for counsel fees and commissions, which had not been paid; held, error, I, as an appropriation of unconverted assets, and 2, because assignee could not claim commissions after delegating this duty to counsel. Id. In a second account, assignee claimed credit for the difference between what an asset brought by sale and what it was appraised at, and sought a discharge on account of a piece of property which had been omitted from a schedule of assets: held, the property should remain as an unconverted asset and be made the subject of

a future account. Id.

In stating an account, the assignee charged itself with the appraised value of the property assigned and added to this amount receipts from the estate which were largely from sales of the assets themselves: held, to be a misleading and improper way of accounting. Id.

An assignee for the benefit of creditors should not be represented by counsel who represent claims adverse to the estate. Id.

Under a deed of assignment for the benefit of creditors, none but the then existing creditors of the assignor acquire an equitable interest in the assigned estate. As signed Estate of Weinmann, 321.

A landlord is not entitled to recover a dividend out of an assigned insolvent estate upon a claim for rent, accrued after the assignment and after the occupancy of the premises by the assignee had ceased. Id.

The mere acceptance of the trust by an assignee for benefit of creditors is not an acceptance of a lease of premises held by the assignor, so as to make the assignee liable for subsequently accruing rent.

Id.

alleged election by an assignee to hold the lease, it is in-
cumbent upon him to prove, by clear and satisfactory evi-
dence, an express agreement by the assignee so to hold it
or conduct on his part which necessarily implies that he
had elected so to do. Id.

ASSIGNMENT OF ERROR. Assignments of
error in the admission or rejection of testimony must set
out so much of the evidence, as is essential to a clear
comprehension of the offer and the ruling of the Court,
and, if the Court has admitted the testimony which is ob-
jected to, so much of it as may show the injury to the
party who excepts. To put such matter in the bill of
exceptions, or in the argument in the paper book, does not
fulfill these requirements. Commonwealth v. Werntz,
93.

The Supreme Court will not consider an assignment of error when the record shows nothing to support it and no exception relating to the same. Delaware County and Phila. Electric Ry. Co. v. Philadelphia, 348. ASSIGNMENT OF JUDGMENT. See JUDGMENT. Vanderpool v. Vanderpool, 157; Assigned Estate of Ernst, 158.

ASSIGNMENT OF LEASE. See LANDLORD AND TENANT. (O. C.) Heckman's Estate, 199. ATTACHMENT. The damages allowed by the Act of May 24, 1887, when an attachment under the Act of March 17, 1869, has been quashed, dissolved or ended, cover all legal costs, fees and damages by reason of the attachment. The last includes all damages for pecuniary loss, ordinarily and naturally resulting from the seizure of the goods, such as loss of sales, interruption of business, and expenses, necessarily incurred, but not indirect or consequential loss or punitive damages for the malicious use of civil process. Commonwealth v. Magnolia Villa Land and Improvement Company, 87; Berwald v. Ray, 458.

In a proceeding on a bond, executed by virtue of the Act of 1887, the liability of an attaching creditor and his surety cannot be extended beyond the terms of that Act. Commonwealth v. Magnolia Villa Land and Improvement Co., 87.

ATTACHMENT EXECUTION. A fund in the hands of a master, appointed to make partition, is not attachable at the instance of a judgment creditor of one who has obtained a judgment against one of the defendants in the partition suit, although the master has set apart a fund as the property of the defendant in the partition and against whose interest the attachment is issued. (C. P.) Hayes v. Mantua Hall and Market Company, 198.

Where an attachment execution is issued, and, under proceedings had upon it, goods of a third person are sold by the sheriff, as the goods of the debtor, the sheriff is liable in trespass to the owners of the goods and the remedy for such sale is not confined to an action upon the bond given when the attachment issues. Berwald v. Ray, 458.

An attachment execution, served on a garnishee within this State, while it cannot bind goods of the defendant, in another State, which have been deposited with the garnishee, will, when the goods have been sold by the garnishee, bind the proceeds in his possession. Merchants and Manufacturers Bank v. W. A. Baeder Glue Company, 69.

While a defendant may waive his right to an account of his goods from one with whom he has deposited them, yet he cannot by such waiver, if collusively made, affect the right of his attaching creditor to require an account. Id.

Where a garnishee fails to appear after service of an When a landlord seeks to enforce a claim based on an attachment with clause of summons, but there is no

BANKS AND BANKING-Continued.

ATTACHMENT EXECUTION—Continued. specific attachment of goods or credits, plaintiff will be The fact that the treasurer was accustomed to give entitled to a judgment by default; but such judgment from time to time, at convenient intervals, his check for will be interlocutory, only, and the plaintiff cannot liquid. the amount of warrants held by the banker does not ate it, or have execution, without proceeding first by writ alter the rule and prevent the deposit of money from of inquiry or before the prothonotary, according to the constituting payment, in the case of a failure by the rules or the practice of Court, and the plaintiff must banker at a time when the money on deposit exceeded establish his claim by evidence of the garnishee's posses- the amount of the warrant and no check has been given sion of goods or credits of the defendant, and the meas- for said amount. STERRETT, C. J., and MITCHELL, ure of damages will be the value of such goods. Longwell v. Oil City Electric Company, 370.

Where attachment is levied upon specific goods, default by garnishee is an admission of the possession of such goods, but the plaintiff must establish their value before execution. Id.

If an attachment is of money or a debt and the amount appear in the sheriff's return, the default is an admission of all the requisite facts, and no further evidence or inquiry is necessary. Id.

The proper form of judgment is for the plaintiff against the garnishee, and that the garnishee has in his hands certain goods, effects or credits (naming them) of the value, etc., or that the garnishee is indebted to the defendant in the sum of, etc. Id.

The plaintiff's measure of damages, which determines the amount of the judgment against the garnishee, is the value of the goods attached, not exceeding the amount of his judgment, with interest and costs, against defendant. The single exception is when garnishee neglects or refuses to answer interrogatories, in which case by the terms of the Act of January 16, 1836, 57, the judgment is that the garmshee has goods or effects of the defendant sufficient to satisfy the plaintiff's demand and execution may issue against him as for his own debt. Id. ATTORNEY. See POWER OF ATTORNEY. Van derpool v. Van 1 rpoo', 157.

ATTORNEY-AT-LAW. An attorney-at-law has no authority to satisfy his client's judgment, unless the money represented thereby be actually paid to him; if he go beyond this, and accept securities instead of money, the client, when the fact comes to his notice, has his election to ratify or repudiate the unauthorized act of his attorney. Whitesell & Sons v. Peck, 540.

J., dissented. County of Crawford v. Merchants Na tional Bank, 133.

See NATIONAL BANKS.

BENEFICIAL SOCIETIES. Beneficial societies are not life insurance companies, and the member has no property interest in the fund to be paid at his death which can be claimed by the executor or administrator as such. The member has only a power of appointment within the classes limited by the society. (O. C.) Kendrick's Estate, 46.

The exercise of the power of appointment by one holding a certificate of membership in a beneficial society is of the nature of a testamentary disposition. Id.

The Act of May 11, 1881, P. L. 20, which requires copies of the application to be attached to all life and tire insurance policies, does not apply to a beneficial associa tion which does not issue policies. Johnson v. Phila. & Reading R. R. Co., 375.

A certificate of membership in a beneficial association is not an insurance policy, within the meaning of the Act of May 11, 1881, and it is not requisite that the by-laws be contained in or attached to the certificate. Lithgow v. Supreme Tent of the Knights of the Maccabees of the World, 493.

BILL OF LADING. See COMMON CARRIER. Willcock v. The Penna. R. R. Co., 545.

BOND. A trustee cannot make a charge to the es tate for expenses involved in procuring his official bond. Eby's Appeal, 160.

BOROUGH. Commissioners were appointed to inquire into the propriety of granting a petition to divide a borough into wards. No provision was made in the order of appointment as to notice. The commissioners caused small hand bills to be posted in ten or twelve of the Where an attorney has, without authority, accepted saloons, hotels, etc., of the borough, which contained securities in payment of a judgment and entered satisfac- 12,000 inhabitants and in which daily and weekly news. tion thereof, the client must make his election to repudi- papers were published. The report of the commissioners ate or ratify the act, promptly upon acquiring knowledge having been confirmed by the Court, held, the proceedof the fact, and inaction after such knowledge, or an at-ings were void for lack of notice and should be set aside, tempt to realize upon the securities taken, will amount to a ratification of the attorney's act. Id.

BAILMENT. Where A. delivers to B. a chattel under a contract of bailment, which provides for payment at specified times, and in default of payment confers upon A. the right to retake the chattel, and, at the same time, B. gives to A. his bond, as collateral security for the performance of the contract; upon B.'s default, A, may proceed either to re-take the chattel, thus rescinding the contract, or he may elect to stand by the contract and proceed against B. on the bond, but the remedies are not cumulative. Seanor v. McLaughlin, 455.

BANKS AND BANKING. Where money of a county is deposited by its treasurer in his own account in bank, but is known by the banker to be county funds, and the banker has become possessed of county warrants, his claim upon said warrants is subject to be set-off by the amount of the deposit of county funds in his hands, and the warrants will be regarded as paid if the money on deposit exceed the amount of the warrants. This rule will apply as against the banker's assignee for benefit of creditors. County of Crawford v. Merchants National Bank, 133.

in re Borough of Columbia, 41.

Where a petition is for a division into "wards" and an order is made to the commissioners to the effect that if they deem such division necessary they shall make a plot or draft of the proposed new "election districts,” it is careless and erroneous practice. Id.

The general law of May 23, 1893, sec. 1, providing for the election of burgess of a borough, repeals special laws incorporating boroughs, so far as concerns the election and office of burgess, and, as the Act of 1893 does not exempt from its operation terms of officers unexpired at the time of its passage, such are terminated thereby. Com'th ex rel. Braughler Weir, 556.

BRIDGES. Aside from the right of the bridge company to demand and receive reasonable tolls from the traveling public, a bridge does not differ from the ordinary highway constructed and maintained by the inhabitants of the district through which it passes. Pitts. & West End P. R. W. Co., v. Point Bridge Company, 393.

The right to exact tolls does not carry with it the power to prohibit such use of a bridge by the public as is reason ably consistent with the purpose of its erection. Pits & West End P. R. W. Co., v. Point Bridge Co., 393.

CAVEAT EMPTOR-Continued.

COLLATERAL SECURITY The holder of

Court, must be conducted in good faith, all misdescrip- collateral securities, with power to sell them for his debt,
tion and misrepresentation being avoided. (O. C.)
Howe's Estate, 16.
CEMETERY. See HIGHWAY.
Company v. Griffin, 530.

Dubois Cemetery
CERTIFICATE. A certificate is evidence only of
what it contains and gives rise to no presumption that
anything else took place before the certifying officer.
Spencer Reese, 449.

CHARGE OF COURT. When the general trend
of a Judge's charge shows a manifest purpose to throw
doubt and discredit upon the testimony of one side and
tends to convey to the jury the idea that, in the opinion of
the Court, it is unlikely that the state of facts testified to
by the witnesses for that side is true, the Supreme Court
will reverse. Young v. Merkel, 303.

While a Judge may express to a jury his opinion of the
weight of the testimony and its bearing and effect, and, if
in his opinion the evidence is not sufficient to sustain a
verdict, may give a peremptory instruction, yet whatever
he does should be done directly, so that his acts may be
fairly brought up for review by the party aggrieved. Hey-
drick v. Hutchinson, 503.

When the effect of an instruction is to take from the
jury all testimony, except that of a particular witness, and
to leave to the jury the construction of a paper, properly
for the Court, such error is not cured by telling the jury
that the whole testimony is for it to pass upon. Id.

A charge whose tendency as a whole is to belittle and
prejudice one side and which is not in expression and
tone a judicial presentation of the case, is error. Id.

CHARGE ON LAND. When a deed creates a
charge upon the land by reserving an annuity to the
grantor in a clause in the habendum, beginning "under
and subject nevertheless to the payment," etc., and, by a
further provision of the same clause, reserves an annuity
of less amount to his widow after his death; the sec-
ond annuity is also a charge upon the land. Rohn v.
Odenwelder, 181.

Such a charge is not divested by a sheriff's sale upon a
subsequent lien. Id.

G. devised land to his son for life, remainder in fee to
his grandson, providing, however, that after the death of
his son, his (the son's) widow should "be maintained
out of the products” of the land during her widowhood:
held, this did not give the widow the right of possession
of the land, but created a charge during her widowhood.
Walker v. Gibson, 369.

CHARTER. "The York Wall Paper Company"
applied for a charter under the Act of April 29, 1874; a
protest was filed by the "York Card and Paper Company,"
whose business was principally the manufacture of wall
paper, although not chartered for that purpose exclusive-
ly: held, as no present injury was apparent from the pro-
posed incorporation and none could be presumed, a
charter would be granted, leaving to the Courts the duty
of restraining the corporation from the exercise of its fran-
chise under the title assumed, should any evil be subse-
quently_developed. (Ex. Dept.) In re York Wall
Paper Co., 574-

CHILDREN. The word "children" in the Act of
April 14, 1851, does not necessarily mean minor children
only. (O. C.) Young's Estate, 316.

If a petitioner for exemption under the Act of April 14,
1851, have in his possession property belonging to the es-
tate, the Court will award the exemption only upon con-
dition of the restitution to the estate of the property held
by petitioner. Id.

CHURCH PROPERTY.
LAW. Krecker v. Shirey, 165.

See ECCLESIASTICAL

See TAXATION. Appeal of M. E. Church Sewickley, 534.

is not bound to obtain the highest possible price for them,
but he is bound to the exercise of common prudence and
good faith in his management and conversion of them,
and, while the debtor may acquiesce in or assent to fraud-
ulent conduct, so far as concerns himself, he cannot bind
his creditors by such acquiescence or assent. Merchants
and Manufacturers Bank v. W. A. Baeder Glue Co., 69.
COMMISSIONS. The commissions paid to an
administrator, or other trustee, are intended as compen
sation for the responsibility involved in the acceptance of
the trust and for services rendered in administration of it,
Eby's Appeal, 160.

COMMON CARRIER. A common carrier cannot,
by stipulations on a bill of lading, render a shipper liable
to it for a sum sufficient to cancel its liability for a negli
gent loss of the goods. Willcock v. Penn. R. R. Co.,545.

COMMON PLEAS. The Judges of the Common
Pleas have supervisory power over certain work of the
register of wills by virtue of the Act of June 17, 1839,
P. L. 678, but such supervision does not extend to his
judicial acts from which an appeal lies to the Orphans
Court. In his judicial acts is included the admission of
a will to probate. Coleman's Appeal, 273.

A paper having been admitted to probate as a certified
and true copy of a will, claimed to have been proved in
France, and having been recorded and letters issued upon
it, parties interested cannot after an interval of fifteen
years invoke aid of the Act of June 17, 1839, P. L. 678,
and have the record corrected by a true copy of the orig.
inal will. Id.

COMPROMISE. No contestant can compromise
anything beyond his or her own personal interest in the
contest and can be entitled to no more than his or her dis
tributive share of a sum received by way of general com-
promise, hence where an issue devisavit vel non is com-
promised, the money received thereupon belongs to all
the parties entitled in case the will had been set aside.
Seip's Estate, 401.

Where three sisters had the same interest in the setting
aside of a will, two appearing of record as contestants,
the presumption as to the third sister is that she was en-
titled to share in the benefits secured by the litigation, and
the burden of proof is upon the others to show some con-
tract, release or state of facts sufficient to rebut the pre-
sumption. Id.

A. brought action against a township to recover for
material furnished; both parties appeared before the jus-
tice, the township being represented by its supervisors,
and a settlement was arrived at, which was reduced to
writing by the justice, and, after being read to and by the
parties and assented to, was entered upon his docket. It
was as follows: "December 10, 1892, parties appear
and settle by defendants giving plaintiff a credit in full of
all road tax assessed against the plaintiff for each and
every year to this date, including the tax for 1892, the
plaintiff to pay the costs taxed." Subsequently the town-
ship brought action against A. to recover road taxes on
tax duplicates for the years 1890, 1891 and 1892. The
township endeavored to avoid the effect of the settlement
by alleging that nothing was taken into consideration be-
fore the justice but the work road tax, and that the money
tax for which action was brought was not then considered:
held, (a) the settlement was conclusive against the plain-
tiff's claim, whether considered as a judgment or as an
agreement; (b) that it was not open to the plaintiff to
show by parol its understanding of the agreement; (<)
that the fact that the settlement was not signed by the
parties did not affect its binding force, as it had been
formally assented to by them before the justice. Town-
ship of French Creek v. Moore, 500.