Plaintiff requested the court to charge that—

“If the jury find from the evidence that the contracts in suit were filled out before they were signed, as sworn to by R. G. Madge, then they must be taken as contracts, for three years, as they are written. Answer. I have given to you explicit instructions as to the effect of the signing of these papers, if they were filled out at the time. They differ slightly from this request. The request is affirmed, as explained in the general charge.” (Seventh assignment of error.)

Verdict and judgment for plaintiff for $1,848.12, whereupon defendants took this writ.

This testimony should have been received, as it showed fraud in procuring the signatures. Schuylkill v. Copley, 67 Pa. St. 386. The responsibility of a surety rests on his contract; but, when it is changed without his knowledge or authority, it becomes a new contract, and is invalid, because it is deficient in the essential elements of consent. Smith v. U. S., 2 Wall. 234.

Miller do Gordon, for defendant in error.

These offers were clearly incompetent. It was not shown that defendants were hindered from reading or having read to them the contract of suretyship.

PAXSON, J. A careful examination of this record has failed to disclose any substantial error. The rejection of the offers of evidence referred to in the first three assignments is certainly not a just cause of complaint. What the witness W. W. Johnston told his bail, in the absence of the plaintiff, as to the nature of the contract they were about to sign, was not admissible to prove a fraud on the part of the plaintiff in filling up the blanks in said contract. While great liberality is allowed in proving fraud, the better opinion would seem to be that the fraud must be proved,—not guessed at,—and it must be proved by competent evidence. It was not contended that the evidence referred to, had it been received, would have been sufficient to relieve the principal. It was offered in relief of the sureties. But surely the representations of the principal made to his sureties in the absence of the plaintiff, and of which it was not even alleged that he had notice, cannot be given in evidence against him in order to discharge the sureties. We need not discuss so plain a proposition; it argues itself. '

Nor do we see anything in those portions of the charge assigned as error which would justify a reversal. Complaint is made that the court withdrew from the jury the question of false representations in regard to the condition of the roads over which the mails were to be carried under the contract. If there was any evidence to justify a jury in finding the false representations referred to, we have not discovered it, and it has not been pointed out to us. And the court was literally accurate in the statement referred to in the fifth assignment. The consummation of the agreement meant its formal execution, and this occurred just when the court said it did.

If the sureties signed the contract in ignorance of its contents, they cannot avoid it now, in the absence of any fraud or deceit on the part of the plaintiff. If they did not read or have it read to them, it was their own fault. They were not prevented from reading it by any trick or artifice of the plaintiff. It is true there is a line of cases which decide that 'where an illiterate man executes a writing which has been falsely read to him, he is not bound. Green v. North Buflalo Tp., 56 Pa. St. 110; Schuylkill Co. v. Copley, 67 Pa. St. 386. This is also the doctrine of Thorogood’s Case, 8 C. B. 115. While the rule laid down in these anthorities is the undoubted law of this state, they have no application to the facts of the case at bar. Judgment affirmed.

HAUDENSCHIELD and others 1:. HAUDENSCHIELD.‘

(Supreme Court of Pennsylvania. November 15, 1886.)

ESTOPPEL—RIGHTB OF WIDow IN DECEASED HusBAND’s ESTATE—RENTS AND PROFITS—RELEASE—RENTS DUE PRIOR TO AGREEMENT.

A. filed a bill in equity against her deceased husband’s children, alleging that her husband had, in his will, devised and bequeathed to her one-third of the rents, issues, and profits during her natural life, and that defendants were in possession of the property, and had collected the rents, and dug and mined coal from the date of his death, June 10, 1882, to April 1, 1885, without rendering her an account. Defendants answered that, under certain petition proceedings. a certain amount had been fixed as her annual interest, and that she capitalized her annuity, and accepted from defendants a gross sum in lieu thereof, and executed a quitclaim deed on April 1, 1885, and that she was estopped thereby. Held, that this agreement only estopped her from its date, and that she was entitled to recover the profits between the date of her husband’s death and the date of agreement.

Appeal from common pleas No. 1, Allegheny county.

Bill in equity by Elizabeth Haudenschield against Samuel Haudenschield and others.

The bill set forth that John Haudenschield, complainant’s husband, died seized of about 60 acres of land situate in Allegheny county, and that by his will he devised to complainants as follows: “I devise and bequeath unto my beloved wife, Elizabeth, the one-third part of my personal estate absolutely, and the one-third part of the rents, issues, and profits of my real estate for and during the term of her natural life;” and that said defendants, after the death of said decedent, took possession, collected the rents, issues, and profits, and dug, mined, and disposed of coal from the date of said decedent’s death, June 10, 1882, to April 1, 1885, and has rendered no account therefor to complainant. She therefore prayed for an account, and a decree that one-third part thereof be paid to her. Defendant’s answer set forth that the complainant has filed her petition in the orphans’ court of Allegheny county for a partition of said real estate; that the same was valued, and that the sum of $198.38 was charged upon ‘said land to be paid to her annually; and that no claim was set up by her, but, on the contrary, taking the annual sum fixed as a basis, she capitalized her annuity, and accepted from defendants a gross sum, and in lieu executed to defendants a quitclaim deed for all her interest in said land, dated April 11, 1885, and that she was estopped from maintaining the bill filed. The court, upon exceptions to the report of the master, entered a decree in favor of complainant for $630.65, the net value of one-third of the coal mined from June 10, 1882, to April 1, 1885. Whereupon defendants took this appeal.

John S. Ferguson, for appellants.

The agreement estopped plaintifi from claiming profits during this period. Scott v. Guernsey, 11 Amer. Law Reg. (N. S.) 132.

Frederick Luty, for appellee.

The devise gave appellee alife-estate in the land. Shoemaker’s Appeal, 106 Pa. St. 392. She was entitled to profits from open mines. Wentz’s Appeal, Id. 307. The agreement and decree in partition had no such effect as claimed for them by appellants.

PER CURIAM. It is diflicultto understand the process of reasoning by which the counsel for the appellants would carry back the effect of thedecree in partition to the death of John Haudenschield, June 10, 1882; and this, in the face of the agreement of the eleventh of April, 1885, which fixes the first of April, 1885, as the time to which she may claim the rents, issues, and profits of the property in the event of her establishing her right thereto. Without this agreement, her right to these rents, etc., or, rather, to her share of the coal, would cease only when approved security had been given for the amount of owelty which might have been awarded to her on the partition; but as the parties, by their agreement, fixed a period for the termination of her claim, the court properly held them to that period. As to the complaint that John E. Haudenschield was not allowed for his labor in mining and marketing the; coal, that is evidently founded on a mistake; for the master allows, for mining and marketing the coal and bad debts, the sum of $5,167 .16. There can be no doubt that the case is one for equity jurisdiction. Indeed, we cannot see by What other form of process the widow could have asserted her claim.

Decree affirmed, and the appeal dismissed, at the costs of the appellants.

KEIL and others a. HARRIS. (Nos. 42 and 64.)1
(Supreme Court of Pennsylvania. November 15, 1886.)

SALE—DELIVERY—PROPERTY SOLD IN BAIL. Where personal property is in the hands of a bailee, a transfer b bill of sale alone is good and valid, even as against the creditors of the ven or.

Error to common pleas No. 1, Allegheny county.

These were two actions of trover by P. Keil and J .' T. Keil, trading as P. Keil & Son, against L. H. Harris, to recover damages for the conversion of 15 and 25 barrels of whisky.

Both. parties claimed title through J. H. Vandergrift & Bro., distillers; the plaintiffs through a sheriff’s sale, and the defendant through a “warehouse certificate.” Plaintiffs held a judgment against Vandergrift & Bro., under which the whisky in controversy was sold on June 28, 1884. This whisky was in the bonded warehouse belonging to Vandergrift & Bro., and was levied upon by the sheriff while there. Defendants claimed title through a warehouse receipt or bill of sale of the whisky from Vandergrift & Bro., dated February 21, 1882. The court directed the jury to render a verdict for defendant. Verdict and judgment accordingly for defendant, whereupon plaintiffs took these writs.

Brown at Lamb'le, H. M. Dougan, and C. H. McKee, for plaintiffs in error. .

When the levy was made, the possession was in Vandergrift, and the property was liable for his debts. McKibbtn v. Martin, 64 Pa. St. 356; Crawford v. Davis, 99 Pa. St. 576; Btllingsley v. White, 59 Pa. St. 466; Bucher v. 00m., 103 Pa. St. 528; Chase v. Ralston, 30 Pa. St. 542.

Kennedy dc Doty and D. D. Bruce, for defendant in error.

Where property is in the hands of a bailee at the time of the sale, no actual delivery is necessary, if the vendor does not retake possession. Linton v. Bute, 7 Pa. St. 89; Worman v. Kramer, 73 Pa. St. 386; Woods v. Hull, 81* Pa. St. 451.

PER CURIAM. The whisky in controversy, being in a bonded warehouse, was properly delivered, by Vandergrift & Bro., by their certificate or bill of sale, to Miller, Forse & Co., under and by virtue of which the plaintiff claims. It is well settled that, where personal property is in the hands of a bailee, a transfer by bill of sale alone is good and valid, even as against the creditors of the vendor. Judgment affirmed.

Let a judgment of afiirmance be also entered in the case between the same parties, No. 64, October and November term.

Appeal 'of ARNOLD, Trustee.l
(Supreme Court of Pennsylvania. November 15, 1886.)

WILL—EXEOUTED TRUs'r—LEGAL AND EQUITABLE TITLE IN LEGATEE.

Tcstator bequeathed “all stocks and bonds to A., the dividends derived from the same to be paid to her by B., whom I name as trustee for said stocks and bonds, as said dividends may accrue from time to time;” and in a subsequent clause bequeathed to B. $5,000 for services as trustee for A. Held, that the bequest vested in A. the equitable and legal title in the stocks and bonds bequeathed, and that the trust, if it could be regarded as such, was executed in the donee at the time of its creation.

Appeal Of J. Morrow Arnold, trustee, from the decree of orphans’ court, Allegheny county.

At the audit of the account of J. Morrow Arnold, trustee under the will of James H. Brown, deceased, Mary A. Harper, the cestu'i que trust, requested the court to transfer to her absolutely that portion of the estate in the hands of the trustee. The will provides as follows:

“I also give and bequeath all stocks and bonds to Mary A. Harper; the dividends derived from the same to be paid to her by J. Morrow Arnold, whom I name as trustee for said stocks and bonds. as said dividends may accrue from time to time.” “I hereby direct my executors to pay to J. Morrow Arnold $5,000 for services as trustee for Mary A. Harper.”

The court directed the entire balance for distribution to be paid, and the stocks and bonds in the hands of accountant to be transferred, to Mary A. Harper. Exceptions thereto by the trustee having been dismissed by the court, he took this appeal.

H. dc G. C. Burg/win, for appellant.

This is an active trust; the duty being to receive and pay over profits. Husb. Marr. Wom. 283; Lightner’s Appeal, 11 Wkly. Notes Gas. 183; Bacon’s Appeal, 57 Pa. St. 504; Davis’ Appeal, 100 Pa. St. 201; Burnett’s Appeal, 46 Pa. St. 392; Dodson v. Ball, 60 Pa. St. 495; Earp’s Appeal, 75 Pa. St. 119; Sproul’s Appeal, 105 Pa. St. 438; Deibert’s Appeal, 78 Pa. St. 296.

Josiah Cohen and A. Israel, for appellee.

The question whether this is an active or dry trust has been decided by this court in Harper’s Appeal, 111 Pa. St. 243; S. C. 2 Atl. Rep. 861. If there is no remainder, a trust to receive and pay over profits is dry. Yarnall’s Appeal, 70 Pa. St. 339.

PER CURIAM. As the bequest in this case vested in Mary A. Harper not only the equitable but legal title in the stocks and bonds bequeathed, the trust, if, indeed, it can be regarded as such, was executed in the donee at the time of its creation; hence the trustee had nothing whatever in the subject-matter of it.

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

ALLEN c. WOLFORD, for Use, etc.1
(Supreme Court of Pennsylvania. November 15, 1886.)

EsToPPEL—BY CONDUCT—JOINT DEBTORs —- SUBROGATION — REVIVAL 0F JUDGMENT.

A judgment was entered against A., B., C., and D. Upon execution all the money was made out of the lands of A., and. upon petition, he was subrogated by the court to the rights of plaintiff. The judgment was subsequently assigned to P., who issued a scire faclas to revive and continue the lien thereof. To this ocirefacias B. appeared, and pleaded payment, offering in evidence a receipt from A. to B. prior to the date of the subrogation. This was rejected by the court below on the ground that B. was estopped by not producing the receipt in the subrogation proceedings. Held, this was error, as the receipt could not avail B., until A. became plaintifi in the judgment.

Error to common pleas, Butler county.

Sct're facias to revive and continue the lien of a judgment.

In 1879 a judgment was entered on a note, containing a warrant of attorney, in the court of common pleas, in favor of P. O. Wolford, for use