executor since the filing of his account. The settlement of the administration account it apmortgage was a third encumbrance. Upon the pears that there are not sufficient personal assets 29th of October, 1878, the executor, acting under to pay the balance appearing to be due from the the original order of May 10th, 1873, sold the estate of such decedent, either to the accountant two remaining lots for the sum of $8800. This or others. sale was confirmed November 2d, 1878. The purchaser then filed this petition to vacate the sale, on the ground that it was improvidently made, and therefore void. Hampton L. Carson, for petitioner. The sale was not for the payment of such debts as are contemplated by the first paragraph of the 31st section of the Act of March 29, 1832. The auditor found that it was agreed the $4000 mortgage should remain as a lien against the unsold real estate. Under the second paragraph of the section, this is not such an account as is there contemplated; in this account the liability is not fixed, the commissions are not finally due the executor until the approval of his final account | by the Court, when he may be deprived of all commissions. Act of March 29th, 1832, Purdon's Digest, 428, pl. Craig's Appeal, 5 WEEKLY NOTES, 243. [HANNA, P. J. The sale was made under the original order of 1873, and relates back to that time.] tra. George Junkin (with him H. G. Jones), con It was contendea that in order to secure the benefit of this section a new petition, specifically framed to meet the provisions of the Act, should have been presented by the executor. It is undoubtedly true that this would have been the wiser course; but the point for decision is whether any power resides in the Court to validate the We think sale made under the original order. that this power is given in express terms by the Act of 13th April, 1854, § 3 (Pur. Dig. 1246). Its words are: "In all cases wherein any of the Courts of this Commonwealth might have authorized any sale or conveyance, or letting on ground rent or otherwise, and such sale, conveyance or letting, may have been made without the leave of such Court, it shall be lawful for such Court, if approving of such sale or conveyance or letting, to approve, ratify and confirm the same, with the same effect as if such decree had preceded such sale, conveyance or letting." The expense and delay incident to another sale, and the fact that a satisfactory price has been already obtained for the property, would justify the exercise of the discretion conferred by the Act, in the confirmation of the present sale. It was objected, however, that the confirmation of the present account was not such a final settlement of the administration account as was contemplated by the Act of March 31st, 1832. Rhoads' Appeal (3 R. 420), decided that such confirmation was a final settlement within the meaning of the Act of April 1st, 1811. That Act gave power to the Court to decree a sale This sale was for the payment of the debts of where the assets were not sufficient to pay the the decedent, as the $4000 mortgage indebted-balance found to be due after the final settlement ness still remained unpaid. Commissions are due to the executor when the service is performed. Cobaugh's Appeal, 12 Harris, 143. of any administration account in the Orphans' Court; and in the case referred to it was held that the Act did not require the estate to be finally settled, but that an administration account should Nov. 23, 1878. THE COURT (after stating the facts). The petition for the sale was presented under the 20th section of the Act of 24th of February 1834, which provides that where the perso-be passed and confirmed in due form of law. No nal estate of the decedent is insufficient to pay his reason is apparent either in the Act of 1832, or just debts and the expenses of the administration, in the mischief sought to be remedied by it, for so much of his real estate as shall be necessary to assuming that the Legislature meant, by the slight supply the deficiency shall be sold under the di- change in phraseology effected by the wording rection of the Orphans' Court for that purpose. of the later Act, to postpone relief to the acIt was argued that the power of the Court under countant, whose claim has been ascertained to be this Act was exhausted, more than five years just, until the winding up of his decedent's estate. having elapsed since the date of the original It is conceivable that great injustice might be done order, and that the want of jurisdiction was not him by such delay, without any corresponding helped by the Act of March 31st, 1832. Section benefit to the heirs. As BLACK, C. J., says, in 31 of this Act provides that the Orphans' Court Cobaugh's Appeal (12 Harris, 143), "An execushall have power to authorize a sale or mortgage tor may retain his commissions out of the perof the real estate of a decedent on the applica-sonal fund and let the unpaid creditors look to tion of the executor or administrator, or of any the land. But if he chooses to exhaust the perperson interested, setting forth that on the final sonal fund by paying the debts, and trust the real tion of the commission. And if it be defectively executed, it may, upon the exceptions of either party, be returned for correction or rejected by the Court. But the alleged defects must be material and not merely formal, although these, in some instances, have been held fatal. (1 Troubat & Haly's Practice, 451.) estate for his own compensation, he puts the heirs | may insist upon a careful and methodical execuin no worse condition." His commissions are due at the time of performing the services for which they are allowed. (Callaghan v. Hall, I S. & R. 247.) The effect of postponing his right to a sale of realty for the balance due him by the estate, would be to induce him to retain his commissions out of the personalty as fast as they are earned, and in advance of debts due by the decedent, and thus to compel a sale for the payment of those debts. Craig's Appeal (5 WEEKLY NOTES, 243), which was cited to show that the present sale was void, because made after the statutory period of lien of decedent's debts had expired, has no application. The Act does not affect the lien of mortgages, and in Craig's Appeal the Supreme Court expressly declined to say what would be the effect if the purchaser at a sale made after the lien of debts had expired should set up against an heir or devisee an order of sale which was originally made when the lien of the debt existed. For the reasons given the petition to vacate the confirmation of sale is dismissed. Opinion by ASHMAN, J. [See same estate, 5 WEEKLY NOTES, 493.] Neill's Estate. In the present case a commission was issued to Cape Town, South Africa, to take the testimony of a witness in behalf of the appellants in an appeal from the decision of the Register of Wills in admitting to probate an alleged codicil to the will of testator. The appellees joined and filed cross-interrogatories. Upon its return the latter filed exceptions to the form of the answer given by the witness to two of the cross-interrogatories. In a portion of one of the answers the witness replies in the third person, while to all the remaining interrogatories, thirty in number, he answers in the first person. The part of the answer excepted to is evidently the result of inadvertence on the part of the commissioners, but taken in connection with the cross-interrogatory propounded to the witness, it is equivalent to a categorical affirmative reply. This slight defect we cannot consider as affecting the sufficiency of the answer, or the due and Nov. 19, 1878. proper execution of the commission, in view of the fact that we have no rule requiring the depo Commission to take testimony of witnesses-Re-sitions of witnesses and answers of parties to be quisites of-How executed. Sur exceptions to return of commission to take testimony. The causes of exception were formal irregularities in the execution of the commission, and are fully stated in the opinion of the Court below. Robert N. Willson (with him James W. Paul), in the first person, yet in analogy to the Equity Rules of the Supreme Court, it would be the better practice. failed and neglected to answer several inquiries The further objection is made that the witness embraced in the cross-interrogatory. Technically this exception is well taken, but we are to certain that in spirit and substance the questions regard more than the mere letter, and if we asThe return was incorrect, in that the commis- all that can reasonably be required. If witnesses have been answered by the witness, he has done sioners used the third person in taking down the do not answer interrogatories substantially, it is answer of the witness to one of the cross-inter-fatal to the whole commission. But if all are rogatories; and in that the witness failed to answer, specifically, all the questions propounded for exceptants. in the 16th cross-interrogatory. Withers v. Gillespy, 7 S. & R. 10. sufficient. (1 Peters' Rep. 235; Louden v. Blythe, substantially though not formally answered it is 16 Penna. St. Rep. 532.) Although the witness does not answer the questions contained in the interrogatory specifically, and with that directness required, or which would have been obtained There is no rule of law requiring the first per-upon an oral examination, yet for the purposes son to be used in taking down the evidence of a witness examined under a commission. contra. The witness had already substantially answered all the questions embodied in the 16th cross-interrogatory. That is sufficient. Louden v. Blythe, 4 Harris, 532. November 23, 1878. THE COURT. It cannot be denied that the parties issuing or joining in a commission to take the testimony of witnesses of the argument of the appeal, and to prevent the inevitable long delay in obtaining a re-execution of the commission, we are disposed to consider the answer sufficient in substance, and as an admission of the witness that he made the declarations imputed to him. For the reasons stated the exceptions are dismissed. Opinion by HANNA, P. J. | formation as to how the loss occurred, was refused such information, and that the witness had frequently asked for such information, but had always met with a refusal. This as bearing upon the question of the defendants' alleged negligence and as excusing the plaintiffs from going into proof of the particulars of the damage.' Objected to by the defendants, on the ground that the narr. alleged negligence, and that the defendants were liable only on proof of such negligence. The Court admitted the evidence, with exception to the defendants. The witness then testi fied to the matters contained in the offer, but said had made inquiries elsewhere, and learned that on cross-examination, that since suit brought, he the fire had occurred during transportation-in fact, all about it. He further testified that Carpenter, the freight agent of the company, at first promised to let him know what caused the fire, as soon as the parties were heard from, but that he afterwards said the company had a release and were not responsible, and declined to give information. The defendants moved for a nonsuit, which was refused, and then proceeded to prove the particulars of the accident; that the train on which the carriage was shipped left Harrisburg with twenty-eight cars, that the carriage was loaded, as usual in such cases, on a platform car, the tenth or twelfth from the engine, that near Lewistown the carriage was discovered to Error to the Common Pleas No. 2, of Alle-be on fire, and that every effort was made to save gheny County. Case, by Miller and wife, in her right, against The Pennsylvania Railroad Co., to recover damages for a carriage injured, as alleged, through the defendants' negligence. it; that the origin of the fire was unknown, and that the spark arrester of the engine was in good order when examined before leaving Harrisburg and after arrival at Altoona. The defendants submitted a point to the effect Mrs. Miller having purchased a carriage in New that there was no evidence of negligence, justiYork, it was shipped by the seller to Thomas N. fying a verdict against them, which the Court Miller at Pittsburgh, over the defendants' road, (EWING, J.) refused, and charged: ["It was the and a bill of lading was received, which provided duty of the defendant company in this case to that, except when their agents were guilty of gross have furnished some explanation of the manner negligence, the company was not to be responsi- in which the injury occurred, and if you find ble for injuries to goods that may arise from the that they refused to do so, and find that the comdangers of the seas or railroads. . . . or from pany persistently refused to give information as fire, etc. The carriage reached Pittsburgh very to the circumstances until it was heard by witmuch damaged by fire, and the plaintiffs declined nesses on the stand in defence on the trial of this to receive it. case, then a presumption is raised against the These facts being undisputed, the plaintiffs defendants that the injury arose from the offered to prove by Mr. Miller, "that, immedi- negligence of the defendants (or their agents), ately after the phaeton was brought to Pittsburgh and it throws the burden of proof on the defendin its damaged condition, he applied to the deants to rebut this presumption by evidence showfendants' general freight agent at Pittsburgh, and ing the circumstances under which the fire octo other proper officials of the company defend-curred.] This they have undertaken to do. ant for information as to when, where, and how Notwithstanding you may find the facts that will the loss or damage occurred, but was refused and denied such information; that he went over the defendants' road and traced the phaeton (in safety) to Altoona, and upon applying at that point to the proper official of the company for inVOL. VI.—17 throw on the defendants the burden of proof to exculpate them from negligence, yet you must find what the actual facts are from the testimony, and from these determine whether or not in fact the fire to the carriage occurred by reason of the negligence of the defendants' servants. . . That is, to find for the plaintiffs you must find as a fact from the evidence that the railroad company, or some of its employés, neglected to do something which a man of ordinary care and prudence would do to take care of this property, or that they did some affirmative, positive act that a person of ordinary care and prudence would not have done, and that that neglect-the want of the exercise of that prudence and care contributed to and was the cause of this fire and injury, and you will take all the testimony in regard to that." Verdict for plaintiffs ($1065.20) and judgment, to which the defendants took a writ of error, assigning for error the admission of the plaintiffs' offer, the answer to their point, and the portion of the charge quoted in brackets. Hampton and Dalzell, for the plaintiffs in error. The offer was not only irrelevant but incompetent, because it did not appear that the general freight agent had any knowledge which he declined to communicate. The defendants below were special bailees for hire, not liable for damages resulting by fire, unless such fire was caused by the negligence of the defendants, and the onus of proving such negligence was on the plaintiffs. Farnham v. Camden & Amboy R. R. Co., 5 Sm. 53. They did not do this, but simply endeavored to prove that the defendants had refused to account for the fire. Grant that the law then raised a presumption of negligence against the defendants, and that the burden of proof was shifted; still it only devolved upon the company to explain the circumstances of the fire. This they did and made out a case excluding the theory of negligence. The plaintiffs offered no evidence to rebut this. The Court therefore erred in two particulars: First, it regarded the presumption raised by the plaintiffs' proof as independent proof of negligence. Second, it allowed the jury to find negligence when there was no evidence to authorize the inference of it. The presumption arising simply shifted the onus probandi. It had no value as evidence in the presence of direct proof. If the presumption was not evidence of negligence, then there was none offered by the plaintiffs, and the question ought not to have gone to the jury. Howard Express Co. v. Wile, 14 Sm. 206. contra. If goods are injured while in the custody of the carrier under special contract, and he gives no account of how the injury occurred, a presumpof negligence is of course. Express Co. v. Sands, 5 Sm. 140. Logan v. Mathews, 6 Barr, 419. The question of negligence was rightly left to the jury. Amer. Steamship Co. v. Bryan, Norris, 446. October 28, 1878. THE COURT. The fact was clear on the trial that the railroad company not only failed to give the plaintiff any account of the fire, how, when, or where it had occurred, but compelled the husband to go in search of the information himself, causing him trouble and expense. He therefore rested his case upon a fact clearly made out, which could be repelled only by satisfactory evidence on the part of the company. But the giving of evidence by the defendants did not ipso facto repel the presumption of negligence. It was a question for the jury whether the evidence satisfactorily accounted for the fire, and also for the conduct of the defendants towards the plaintiff; for the latter involved the credibility of the evidence of the former. The jury found against the defendants on the facts. Finding no error, the judgment is affirmed. PER CURIAM. WOODWARD, J., absent. [See next case.] Error to the Common Pleas of Erie County. Case, by the widow and minor children of Jacob Weis, against the Pennsylvania Railroad Company, to recover damages for his death, caused, as alleged, by the defendant's negligence. Plea, Not guilty. This case was before the Supreme Court on a former writ of error where the judgment was reversed, and a venire facias de novo awarded. (See Weis v. Penna. R. R. Co., 2 WEEKLY NOTES, 214.) The evidence for the plaintiffs was that Weis, crossing the defendant's railroad in the city of Erie at a point where some freight cars made complete view of the track impossible, was killed by a passenger train running at a dangerous speed. They offered no evidence in chief, nor in rebuttal, that the deceased stopped and looked a up and down the track, but they relied entirely on the presumption that he acted prudently. presumption were properly left to the jury as matter of fact. This rule was affirmed in Summerville v. Holliday (1 The defendants denied that their train was Watts, 507), decided in 1833, KENNEDY, J., holding, how. ever, in an elaborate dissenting opinion, that it was for the running negligently, and proved by two witnesses Court to direct the jury whether or not the circumstances that Weis drove rapidly on to the track, "seemed proved were sufficient to repel the presumption. In 1837 to try to drive his horse around the engine." the case of Delany v. Robinson (2 Whart. 507) came up The Court below (GALBRAITH, P. J) declined from Mr. Justice KENNEDY's ruling at Nisi Prius, and it to charge, as requested by the defendants, that stances was for the Court, and the credibility of the witwas there held that the force of the countervailing circumunder all the evidence the plaintiffs were not en-nesses for the jury, thus affirming the position of KEN titled to recover; but instructed the jury that if NEDY, J., in Summerville v. Holliday, supra. they believed the uncontradicted evidence of the rule was again announced in Diehl v. Ihrie (3 Whart. defendants, the verdict must be for the defend-149); and in Backestoss v. Commonwealth (8 Watts, 286), decided in 1839, it was said almost in terms by GIBSON, C. J., delivering the opinion of the Court, that the cases Verdict for the plaintiffs ($3000) and judg-of M'Lean v. Findley and Summerville v. Holliday had ment, to which the defendants took this writ of error, assigning for error the refusal of the Court to charge as requested. ants. J. Ross Thompson, for the plaintiffs in error. It is negligence, per se, for one approaching the railroad not to stop, look, and listen before crossing the track. Penna. R. R. Co. v. Heilman, 13 Wr. 60. Id. v. Weber, 26 Sm. 157; I WEEKLY NOTES, 567. Davenport & Griffith, contra, contended that the ruling of the Court was in accordance with the law as settled by Weis v. Railway Co., 2 WEEKLY NOTES, 214. pos The new been overruled by the subsequent cases. The same view was taken in Reed v. Reed (10 Wright, 243), and seems to have obtained in all the cases, until the above very recently decided cases of Penna. R. R. v. Miller and Penna. R. R. Co. v. Weis. See Beale's Exr's v. Kirk, 4 WEEKLY NOTES, 340. Cf. King v. Thompson, ante, 241; Saylor v. City of Harrisburg, ante, 107; Schultz v. Penna. R. R. Co., ante, 69; Phila. & Reading R. R. Co. v. Heil, 5 WEEKLY NOTES, 91; Clark v. R. R. Co., Id. 119; Central R. R. of New Jersey v. Feller, 4 Id. 160; Mallory v. Griffey, Id. 506.] The plaintiff bank employed A., one of the defendants, as its messenger, and took from him a bond in the sum of ten thousand dollars with B. and W., the other two defendants, as sureties, conditioned that the said A. should account for and pay over any and all moneys that might come into, or pass through, his hands as messenger, and should in all things conduct himself honestly and faithfully as such messenger. The bank officers entrusted to A. the combination of the safe, and gave him access thereto. On the 28th of May, 1875, there was taken from the vault of the bank $3066.75, and at the same time A. disappeared. In an action by the assignee of the bank against B. and W., sureties upon the bond of A.: Nov. 4, 1878. THE COURT. The principle of this case was decided at this term in the case of the Penna. R. R. Co. v. Miller & Wife [ante, p. 257]. The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in session of the case. True, the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the Court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But before they can come to this conclusion, they must Held, that B. and W. were liable, because any dishonconsider the circumstances under which the re-est act of A. while acting as messenger, which caused a pelling witnesses testify. They may be such as not to convince a rational mind that the plaintiff heedlessly rushed into danger; or the character of the witnesses and their appearance before the jury may render them unworthy of belief. Consequently the jury only can determine the fact put in issue by the presumption of law. PER CURIAM. Judgment affirmed. . WOODWARD, J., absent. [It was held in M'Lean v. Findley (2 Penna. R. 97), decided in 1830, that the force of circumstances of counter loss to the bank, was a breach of the condition of the bond, whether done while acting within the scope of his employ ment as messenger or not. Held, further, that it was not negligence in the officers of the bank, contributory to the loss, to entrust the messenger with the combination of the safe. Error to the Common Pleas No. 2, Allegheny County. Debt on a bond, conditioned for the payment of ten thousand dollars, by the German American Bank, for use of C. Seibert, assignee, against |
