count attempted to be set up as a defense by the defendant are barred by the statute of limitations, and were at the time of the bringing of this suit, and therefore are inadmissible as a defense; and no recognition of their correctness by the plaintiff, if now repudiated by him, can remove the bar of the statute. This account of defendant cannot now, in the face of plaintiff's objection, be admitted or considered as a set-off or a defense to the plaintiff's claim.' This point is not correct, under the evidence in the case.] (24) [7. 'Under the plea of payment, nothing can be proven, except the specific liqui- | dation of a debt due by the party pleading it to another. If, therefore, the chattels claimed in plaintiff's statement were sold by him to defendant under the agreement alleged by defendant that they were to be credited on defendant's account against plaintiff's intestate, these facts are not evidence under the plea of payment.' This point is not correct, as written. Under the plea of payment in this case, with the notice of special matter filed under the rule of court, the facts mentioned in the point are evidence under the plea of payment and nonassumpsit.] (25) [8. The defendant in this case, upon all the evidence, has failed to establish any legal defense to the plaintiff's claim, and the verdict of the jury must be for the plaintiff.' This point is not correct.] (26) [9. 'If the jury believe from the evidence that the plaintiff did agree with defendant that the price of the property sued for should be credited on defendant's account against Thomas Neely, then such agreement was not binding upon plaintiff, and was revocable by him, and if the jury further believe that, prior to the distribution of his intestate's estate, plaintiff repudiated such contract, and gave defendant notice to present his claim to the auditor, such credit is no defense, and what plaintiff did in reference to defendant's account before the auditor does not estop him from recovery in this suit.' This point is correct, if the jury believe from the evidence that the agreement made as stated was not executed by the parties.]"

The portions of the charge in brackets, and the answers to plaintiff's points in brackets, form the seventeenth to the twenty-sixth assignments of error.

W. F. Bay Stewart, Henry C. Niles, and George E. Neff, for appellant. N. M. Wanner, R. E. Cochran, and Smyser Williams, for appellee.

STERRETT, C. J. This case was here before on appeal from refusal of the court to set aside the judgment of nonsuit, and is reported in 144 Pa. St. 250, 22 Atl. Rep. 673. The facts, as they were developed on the last trial, are fully and correctly stated by the learned judge who presided thereat, and need not now be repeated at length. In sub

|

stance, plaintiff claimed that in June, 1884, as administrator of Thomas Neely, he sold and delivered to the defendant, John Bair, who died since the trial, certain articles of personal property, at prices aggregating $580, which, with interest, less a credit of $69.74, amounted, when suit was brought, to $698.03. Defendant admitted having received the propperty at the prices claimed; but, by way of confession and avoidance, he averred that he did so "upon the clear, distinct, and express contract and agreement," between plaintiff and himself, that said price or sum "should be appropriated and applied to the full payment, satisfaction, and extinguishment of the said defendant's individual account of $510.26 against the said Thomas Neely," etc. Having thus admitted the delivery of the property to himself, at the prices claimed by plaintiff, he assumed the burden of proving the contract under which he alleged the same was received. He accordingly introduced testimony tending to prove, not only that the contract was made as claimed by him, but that it was fully executed, with the knowledge and co-operation of the plaintiff, before this suit was brought. More than that, it was also shown, and the jury must have found, that plaintiff, as administrator of Thomas Neely, accounted for the price of said property, and that the same was distributed among the creditors of his intestate, and also that the personal account of defendant against said decedent, in which was credited the price of said property, was presented by plaintiff to the auditor, charged with said distribution. That statement of account, the correctness of which was then and there admitted by plaintiff, showed a balance of $69.74 in favor of Thomas Neely's estate. That sum was deducted by the auditor from the account of defendant's firm, John Bair & Son, against said estate. individual account of defendant against Thomas Neely, in which was credited the price of the personal property in question, being thus settled and fully paid, with plaintiff's knowledge and active co-operation, did not participate in the distribution. After all this was done, this suit was brought by plaintiff to recover the price of said property, which, as defendant's testimony tended to prove, had been previously settled and paid in the manner above stated. This is an outline of defendant's contention, and his evidence, part of which was the auditor's report, tended strongly to sustain it. On the other hand, plaintiff contended that there never was any agreement as to how the price of the property in question should be applied, and that it never was applied, with his consent, to the payment of John Bair's individual account against Thomas Neely. His testimony tended to sustain that contention, and thus there was a manifest conflict of testmony on the controlling facts of the case. That, of course, was a matter exclusively for the jury. The case was submitted to them

The

in a clear, concise, and impartial charge, in which, after referring at considerable length to the testimony, the learned judge instructed them, inter alia, as set forth in the seventeenth specification of error, and refused to affirm either of the nine points for charge submitted by the plaintiff. His answers to these points are the subjects of complaint in the eighteenth to the twenty-sixth specifications inclusive. The verdict was for the defendant. That conclusion of the jury is, of course, predicated of their finding in his favor the disputed questions of fact, so far, at least, as they are material, according to the court's view of the law. If it were not for the fact, established by the verdict, that the contract claimed by the defendant was made and fully executed, and the further undisputed facts, that the price of the property was fully accounted for and distributed among the creditors of plaintiff's intestate, and that defendant's personal account was excluded from participation in that distribution, there would be some force in the legal position so earnestly contended for by the learned counsel for plaintiff. But, in view of the fact that Thomas Neely's creditors received all they were entitled to, the only parties who could be considered in the issue were the plaintiff and defendant. The former was confronted with his contract, in the execution of which he actively co-operated. It follows, therefore, that ex aequo et bonu, he should not be permitted to pocket, in his own right, the price of the property in controversy. The evidence as to his action in presenting defendant's personal account, and inducing the auditor to pass upon the same as he did, presents sufficient ground for estoppel, also, but that was neither urged nor acted upon in the court below.

The specifications of error are numerous, but several of them relate to substantially the same questions. The first 13 are to the admission of defendant's offers of testimony recited therein, respectively. Neither of these specifications is according to rule, and therefore not entitled to notice. But, waiving that, it may be remarked that all the offers are to prove facts bearing more or less directly upon the defense that was interposed; and, from what has already been said as to that, it will be seen that they were not improperly admitted.

The fourteenth to sixteenth specifications complain of the rejection of plaintiff's offers recited therein. The objection was to the leading character of the offers, rather than to relevancy or competency of testimony. The court very properly said that the witness should be permitted to state what occurred in the conversation referred to, without having his attention called to any particular matter in the manner proposed. Some latitude of discretion in such matters must always be accorded to the trial judge. There appears to be no error in either of these rulings.

Incidental reference has already been made to that part of the learned judge's charge complained of in the seventeenth specification. An examination of it in connection with the testimony discloses no substantial error. It is a clear and accurate presentation of the case, both as to the facts which the testimony tends to prove and the law applicable thereto. It requires no further vindication, either by argument or citation of authorities.

The remaining nine specifications are to the court's answers to plaintiff's points hereinbefore referred to. Considered in connection with the testimony properly before the jury, it would have been error to have affirmed without qualification either of these points, as presented. We find no error in either of said answers.

Further discussion of the questions in-' tended to be raised by the assignments of error is deemed unnecessary. The case was well and carefully tried, and there appears to be nothing in the record that would justify a reversal of the judgment. Judgment affirmed.

(157 Pa. St. 585)

In re ECKERT'S ESTATE. (Supreme Court of Pennsylvania. Oct. 9, 1893.)

WILLS-VESTED INTERESTS.

By will, testator directed that the income of $2,000 be paid to his daughter for life, and on her death the principal to go to his two sons, their heirs and assigns. Held, that the interest of each son vested at testator's death, and was not contingent on his surviving the daughter, and that, on the death of one of them during the daughter's lifetime, his interest in the principal descended to his heirs.

Appeal from orphans' court, Lancaster county; D. McMullen, Judge.

On final distribution of the estate of Jacob Eckert, deceased. From a judgment of the orphans' court dismissing exceptions to the auditor's report, the heirs appeal. Affirmed.

Jacob Eckert, of Lancaster county, died in 1849, having made his last will and testament, dated September 3, 1848. He left certain real estate, inter alia, two farms, which may be styled, for the purposes of this case, the "Gabriel Eckert Farm" and the "Peter Eckert Farm." His four children were Gabriel, Peter, and Jacob Eckert, and Mary Rife. By his will, he devised two farms to his two sons, and bequeathed and directed as follows: "Item. I also charge and create a lien of two thousand dollars upon the said two plantations devised to my sons Gabriel and Peter, the one-half of that sum on each of the said plantations, interest thereon, at five per cent. per annum, to be paid, applied, and appropriated by them, their heirs and assigns of the said two plantations, or so much of the said interest as may be necessary, to the maintenance, care, and support of my daughter, Mary, the wife of

Isaac Rife, from time to time, as the same may be necessary or required during her life. The principal sum of the said two thousand dollars, and all interests that may have accrued thereon, and not been used, applied, and appropriated to the care, support, and maintenance of my said daughter, Mary, in her lifetime, I give and bequeath, upon her death, unto my two sons, Gabriel C. Eckert and Peter B. Eckert, their heirs and assigns; the one-half thereof unto Gabriel C. Eckert, his heirs and assigns, and the other half thereof unto my son Peter B. Eckert, his heirs and assigns." During the lifetime of Mary Rife, who had the life interest in this legacy, her brother Gabriel died intestate and without issue. His share, therefore, was inherited in equal third parts by his two brothers, Peter and Jacob, and his sister, Mary Rife. Subsequently, Peter B. Eckert made a general assignment for the benefit of creditors of all his rights and chattels, real property, personal and mixed, to Isaac Bair. His assignee put up at public sale Peter B. Eckert's interest in this legacy, and sold it to Uriah Eckert, who was the highest bidder, and who bought it for a fair price, and to whom an assignment of it was made in these terms: "All the right, title, and interest, claim, share, or portion of the said Peter B. Eckert, under the will of Jacob Eckert, and in all such moneys as were charged (and which are still remaining charged) as a lien by the said Jacob Eckert, in and by his said will, on certain lands mentioned in the said will, situate in Leacock township aforesaid, the annual interest of which said moneys so charged were, by the directions of said will, to be applied and appropriated to the maintenance, care, and support of Mary Rife, wife of Isaac Rife, during her lifetime," etc. This, it was admitted, was a good transfer and assignment of whatever interest Peter B. Eckert then had. Subsequently, Uriah Eckert transferred this interest to John B. Denlinger, appellee. Mary Rife died, and the owners of the land on which the charge rests paid it into court. An auditor was appointed to distribute. He found that the interest of Peter B. and Gabriel C. Eckert in this legacy was a vested one; that one-third of Gabriel's interest passed upon his death to Peter, and the whole of Peter's interest-four-sixths of the $2,000-passed by assignment to his transferee. It was contended, on the other hand, that the interest was contingent, had never vested in Peter, and therefore passed to his heirs after Mary Rife's death. It was agreed by all concerned that administration upon Gabriel Eckert's estate should be waived, and the distributive shares should be awarded directly to those who would have been entitled to claim from his administrator. The court below affirmed the auditor's position,

and the sole issue here is whether or not the interest of Peter B. and Gabriel C. Eckert in the above legacy of $2,000 vested in them upon their father's death, or was contingent, because they were not to enjoy it until their sister's death.

W. H. Roland and B. F. Davis, for appellants. Brown & Hensel, for appellees.

PER CURIAM. An examination of the record in this case has failed to convince us that there was any error in construing the will of Jacob Eckert, deceased, or in distributing the fund in question in accordance therewith. Decree affirmed, and appeal dismissed, at appellants' costs.

(157 Pa. St. 601)

GILFILLAN v. DEWOODY et al. (Supreme Court of Pennsylvania. Oct. 23, 1893.)

SUBROGATION TO RIGHTS OF JUDGMENT CRED

ITOR.

A note on which judgment was rendered against A. & L. was executed by them, while partners, to secure a joint debt. After the judgment they dissolved partnership; A. paying off an individual obligation of L., who, in consideration, agreed to pay such judgment. There after, property of A. was levied upon, and the amount of the judgment collected therefrom. Held, that A. was entitled to be subrogated to the rights of the judgment creditor against L.

Appeal from court of common pleas, Venango county.

Action on a note by C. W. Gilfillan, for use of Perry Dewoody, against A. W. Dewoody and A. L. Dewoody. A judgment for plaintiff was collected from the separate property of A. W. Dewoody, and he filed a petition asking to be subrogated to the rights of plaintiff against his codefendant; and, from a decree granting the petition, plaintiff appeals. Appeal dismissed.

The note on which the judgment was rendered was executed jointly by A. W. and A. L. Dewoody, while partners, to secure a joint debt. After the judgment was rendered, A. W. Dewoody paid off certain individual obligations of A. L. Dewoody, who agreed, in consideration therefor, to assume payment of the judgment; and subsequently execu tion was issued on the judgment, and collected from the property of A. W. Dewoody.

E. H. Lamberton and Carl I. Heydrick, for appellant. Lee & Criswell, for appellee A. W. Dewoody.

FER CURIAM. An examination of the record in this case has failed to satisfy us that there is any error in the decree of which appellant complains. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

(157 Pa. St. 644)

COMMONWEALTH, to Use of PORTER, v.

FLEMING et al.

(Supreme Court of Pennsylvania. Oct. 23,

1893.)

REVIEW ON APPEAL-EXCEPTIONS NOT APPEARING IN RECORD.

Under Act April 18, 1874, providing that in all actions plaintiff may ask for judgment for want of a sufficient affidavit of defense, and may except to the decision of the court denying his right thereto, and take a writ of error to the supreme court, the latter court cannot consider an assignment of error to the trial court's action in discharging a rule for judgment for want of a sufficient affidavit of defense, unless the record shows that an exception was taken thereto.

Appeal from court of common pleas, Beaver county.

Action by the commonwealth of Pennsylvania, to the use of Caroline E. Porter, against J. Kidd Fleming and others. Plaintiff asked for judgment for want of a sufficient affidavit of defense, and, from an order discharging the rule for judgment, appeals. Appeal quashed.

Thomas M. Henry, Louis E. Grim, and David S. Naugle, for appellant. John M. Buchanan, Lewis W. Reed, and William A. McConnel, for appellees.

PER CURIAM. It appears by the record that, when the rule for judgment in this case was discharged, counsel for both parties were in court, and left without taking any exception to the ruling or asking the court to seal a bill. The learned president of the court certifies that, after adjournment of court, counsel for plaintiff called on him at chambers, and requested him to seal a bill of exceptions, which, for reasons stated, he declined to do. He further certifies that no exception has ever been filed by permission of the court or the judge thereof. As was said in Association v. McCombs, 92 Pa. St. 364, "this court is bound to disregard an assignment of error under the act of April 18, 1874, unless the record shows an exception was taken." The act provides that "plaintiff may except to such decision and take a writ of error to the supreme court." When a rule for judgment for want of a sufficient affidavit of defense is discharged in open court, in presence of the plaintiff's counsel, then is the proper time to except, and request the court to seal a bill. If counsel are not in court when such rule is discharged, no judge should refuse to allow an exception and seal a bill within a reasonable time thereafter. In the circumstances, we think this appeal should be quashed.

1 Act April 18, 1874, provides that in all actions plaintiff may ask for judgment for want of a sufficient affidavit of defense, and when the court shall decide against his right to such judgment, may except to such decision, and take a writ of error to the supreme court.

(157 Pa. St. 622)

FICK V. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Oct. 23, 1893.)

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TRESPASS OBSTRUCTING STREAM BY RAILROAD EMBANKMENT INADEQUACY OF CULVERT -AcTION FOR DAMAGES TO FLOODED PREMISES-INSTRUCTIONS.

1. In an action by a tenant against a railroad company for damages caused by an overflow during a freshet by water backing up in a ravine crossed by defendant's track, because of a defective culvert under the railroad embankment, plaintiff asked the court to charge that if the ordinary drift in a stream during a freshet was caught by obstructions placed across the natural water course by defendant, thereby injuring plaintiff's property, defendant was liable. Held, that it was not error for the court to state in answer to such point that, if defendant placed any obstruction in the culvert, otherwise properly constructed, of course it would be liable.

2. If defendant, by the construction of its culvert, caused the water during an ordinary freshet to overflow plaintiff's land, it was liable. 3. If the rubbish that was carried to the culvert by the freshet from the properties lying above the property occupied by plaintiff clogged the culvert and dammed the water back on the property occupied by plaintiff, he cannot recover, provided defendant exercised ordinary care in keeping the opening to the culvert unobstructed, and in constructing it of sufficient capacity originally.

4. Where the evidence was conflicting as 'to whether or not the culvert as originally constructed and as it existed at the time of the freshet was of sufficient capacity to permit the escape of the water during ordinary freshets, and also as to whether the freshet in question was an ordinary or an extraordinary one, the court properly refused to direct a verdict for defendant.

Appeal from court of common pleas, Cambria county; A. V. Barker, Judge.

Action by A. F. Fick against the Pennsylvania Railroad Company to recover damages to property caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

Defendant, when constructing its main line of railroad through the state, built a culvert at Gallitzin underneath the roadbed, to permit the water which would flow down the hillside and ravine to pass through and beyond the same. The size of the culvert is 2 ft. wide and 31⁄2 ft. deep. The dimensions of the same were maintained from the time of the construction of the railroad to the commencement of this suit. At the time of the alleged injury which is made the subject of this suit the plaintiff was engaged in the business of keeping an hotel or tavern in the borough of Gallitzin, in a building not far removed from the railroad, and immediately above the mouth of the culvert, where same passes through and underneath the roadbed. He was not the owner of the building in which he conducted his business, but occupied the same as lessee of the "Bender estate," and at the time of the trial had been in the occupancy of the same for about two

years. On the 19th day of June, A. D. 1891, the day on which the injury and damage complained of by the plaintiff was done to his property by reason of the negligence of the defendant, and for which he seeks to recover, there was a heavy rainfall at Gallitzin. The character of the flood was such, and its force so great, as to drive down from the lots, streets, and alleys in the borough all manner of rubbish and debris, consisting of barrels, kegs, boxes, wood, old ties, tin cans, etc., to the mouth of the culvert; and by reason of the accumulation of this rubbish the mouth of the culvert was clogged and closed to such an extent as not to permit the water to pass through the opening or channel in such volume as the capacity of same would allow. The culvert was only receiving about one-half the water it could receive until the debris was removed, and when the opening or mouth was cleared the water began to recede at once. A division foreman of defendant, with his crew, was at the mouth of the culvert during the heavy rainfall on the date mentioned, and did everything they could to remove the debris and rubbish which had gathered about the mouth of the same. There was a large quantity of this material which was driven down to the mouth of the culvert by the force of the water, and lodged against the grating, clogging the same, and preventing the water from passing through the channel underneath the roadbed; several wagon loads of which were hauled away, and the remainder was taken away in cars. The testimony discloses the fact that for many years there was no trouble whatever arising from the failure of the water to pass through the culvert. Its capacity was sufficient to control and receive all the water which flowed down the hillside, and no trouble occurred until buildings were erected along the channel or water course leading down to the culvert. The persons occupying these buildings cast their refuse matter of the character indicated above on the lots and adjacent streets and alleys, and the accumulation of this material, with the rainfall, gave rise to the trouble from high water on the 19th day of June, A. D. 1891. The defendant had no control whatever over the conditions which resulted from the water backing in and upon the premises occupied by the plaintiff, and none of the debris came from its property, and it did not contribute in any manner to the accumulation of same on the lots, streets, and alleys of the borough.

Specifications of Error.

"First. The court erred in its answer to the plaintiff's fourth point, which point and answer are as follows: "That if the drift which ordinarily can be expected to flow down a stream during a freshet was caught by obstructions placed across the natural water course by the defendant, thereby form

ing a dam, and injuring the plaintiff's property, the verdict should be for the plaintiff. Answer. If the defendant placed any obstruction in the culvert, otherwise properly constructed, of course it, would be liable.'

"Second. The court erred in its answer to the plaintiff's fifth point, which point and answer are as follows: 'If the jury find that the defendant company, by reason of the construction of their road and culvert, caused the water during an ordinary freshet to overflow the plaintiff's land, the verdict should be for the plaintiff. Answer. This point is affirmed.'

"Third. The court erred in its answer to the defendant's third point, which point and answer are as follows: "That if the jury believe from the weight of the evidence that the debris and rubbish that was carried down to the mouth of the culvert by the heavy rainfall of June 19, 1891, from the properties lying above the property occupied by the plaintiff, and that the accumulation of the same at that point closed up and clogged the inlet or mouth of the culvert, and thereby dammed the water back to and upon the property occupied by the plaintiff, he cannot recover any damages, in this action, and the verdict should be for the defendant company. Answer. Affirmed, provided the defendant exercised ordinary care and prudence in keeping the inlet clear from debris. In order to find that, you must find that it was not negligent in keeping the opening unobstructed, as well as in constructing it of sufficient capacity originally. It would not be held to extraordinary care in this respect.'

"Fourth. The court erred in its answer to the defendant's fifth point, which point and answer are as follows: "That if the barrels, kegs, boxes, wood, tin cans, and debris or rubbish placed upon the lots, streets, or alleys within the borough of Gallitzin was either permitted or disregarded by the borough authorities, and the same, or any part thereof, would be, during heavy rainfalls, carried down to the mouth of the culvert to obstruct the current of water into the same, and that is what did happen and caused the water to back upon and overflow the premises occupied by the plaintiff, and damaged his property, he cannot recover, and the verdict must be for the defendant. Answer. We see nothing in this point not covered by our answer to the defendant's third point.'

"Fifth. The court erred in its answer to the defendant's tenth point, which point and answer are as follows: "That under all the evidence the verdict must be for the defendant company. Answer. We decline to so instruct you.'

"Sixth. The court erred in the admission of testimony under objection as follows: 'Question. What damage did this water cause to you as a tenant? (Objected to for the reason that it is irrelevant and immaterial, as the plaintiff has not alleged in his