P. F. S. 105.) Even if, after argument, we | fused further water-service until the bill for the THE COURT. Ex parte injunction refused, and motion for preliminary injunction continued. W. H. W. The Court directed a verdict for the plaintiff, reserving the point whether, under the circumstances, the plaintiff is entitled to recover. Beitler and West, City Solicitor, for the rule. any condition it The city has power to make sees fit in supplying water to the citizens. Girard Ins. Co. v. City, 4 WEEKLY Notes, 557. Smith v. Philadelphia, 31 Smith, 39. A payment of taxes to prevent a sale, even under protest, cannot be recovered. Union Ins. Co. v. Allegheny, 13 WEEKLY NOTES, Federal Ins. Co. v. Robinson, 1 Norris, 357. Municipal claim-Involuntary payment-What Rule for a new trial and in arrest of judg ment. Finnel v. Brew, 31 Smith, 364. Natcher v. Natcher, 11 Wright, 496. Colwell v. Peden, 3 W. 327. Hospital v. Philadelphia, 12 H. 231. A payment is not the less voluntary because it Real Est. Sav. Inst. v. Linder, 24 Smith, 371. Lamborn v. County Com's, 7 Otto, 181. Irvine v. Hanlin, 10 S. & R. 219. The action of the City Solicitor, in entering satisfaction, estopped the city from afterwards Bigelow on Estoppel, p. 387. This was a suit brought to recover the amount paid by plaintiff on a claim by the city for water-demanding payment from the plaintiff. pipe laid in front of his premises. The city threatened to cut off the plaintiff's supply of water unless the claim was paid, whereupon plaintiff paid under protest. and Gray's Appeal, 10 WEEKLY NOTES, 458. Continental Bk. v. Bk. of Commerce, 50 N. Y. 575. Sheppard v. Milwaukee Gas Light Co., 6 Wis. 539. Ten Brook v. The City, 7 Philada. 105. As the city had no right to demand payment On the trial the following facts appeared in of the claim, it could not be made a condition evidence: In January, 1871, the city filed a lien to the supply. against certain premises in the Twenty-second to supplying the water. The plaintiff had a right Ward for water-pipe laid in front of the same, subsequently issued a sci. fa. and obtained judgment for want of an appearance. Defendant took a writ of error, and the City Solicitor being of opinion that the service of the sci. fa. was, under the ruling in Wistar v. City (5 Norris, 215), and Simons v. Kern (11 Norris, 455), clearly defective, and that the claim could not possibly be saved, satisfied the same of record January 31, 1881, and by the order as filed directed the Water Department to refuse all supply after the current year until the claim was paid. in The payment was made to release what was, December 29, 1883. THE COURT discharged On July 30, 1881, the plaintiff acquired title to the premises against which the lien had been the rule, and entered judgment on the point filed, and at the expiration of the year was re-reserved in favor of plaintiff. Assumpsit, on three promissory notes signed "The Louis Gross Brewing Company," in the margin of each note were written, The Louis Gross Brewing Company; Mrs. Theresa Bremer, John A. Gross. The suit was brought against Theresa Bremer and Charles Bremer in right of said Theresa and J. Adolph Gross, trading as the Louis Gross Brewing Company, defendants. The affidavits of defence of Theresa Bremer and of her husband, Charles Bremer, set forth that the said Charles Bremer was not a member of the firm defendant, and did not owe the plaintiff Elkins anything. That he had signed the articles of co-partnership simply to show his consent to his wife's contract; and that she had taken the benefit of the Act of April 3, 1872, securing to married women their separate earnngs. It was further set forth that a receiver of the partnership defendant had been appointed. Colesberry, for the rule. THE COURT made the rule absolute, referring to Bonard v. Kettering, 12 WEEKLY NOTES, 345. In re Jos. Johnston Theil. Adoption Petition to rescind decree of-Rescission of the contract not being contemplated by the Act of May 4, 1855, will not be allowed. Sur petition to revoke decree of adoption. The following were the facts:— Henderson v. Miller. Practice-Appeal from Alderman-Non pros. for want of a narr.-. -Plaintiff must signify his election within a year from the taking of the appeal. Sur rule to strike off judgment of non pros. for want of a declaration. Appeal by defendant from judgment of a magistrate, entered September 1, 1880. On October 25, 1881, the defendant filed a non pros. under Rule XXIX. (§ 122). James P. Townsend, for the rule. The plaintiff has the right to treat the transcript as a narr, and may rule the defendant to plead at any time after it is entered. Nathans v. Cummings, 1 WEEKLY Notes, 416. If the transcript has been filed, a non pros., entered under the rule of Court at the expiration of a year, will be struck off. Allison v. McFadden, 14 WEEKLY NOTES, 210. W. C. Hannis, contra. The plaintiff must make his election within the year. Paris v. Hein, 6 WEEKLY NOTES, 124. Where [NOTE.-On an appeal from the judgment of a magistrate's court, the plaintiff may either file a declaration, or On April 28, 1883, Gustavus F. Theil pre-nify his election within the time prescribed by Rule 29, treat the transcript as such. In the latter case, he must sigsented a petition setting forth petitioner's desire either by giving notice of his intention to rely upon the tranto adopt Jos. Johnston, then nineteen years old, script, or by ruling the defendant to plead to it. as his child, and the usual decree was thereupon the appeal has been taken by the defendant, Courts of made. On March 14, 1884, the petitioner preCommon Pleas No. 3 and 4, and now Common Pleas No. sented the present petition in which he set forth tiff to make his election is not necessary before judgment 2, by the foregoing case, have held that notice to the plainthat the child had refused to be subject to the of non pros. is entered; Ellis v. Pennington, 2 WEEKLY duties of a child, that he left the college where NOTES, 29; Paris v. Hein, 6 Id. 124; Snyder v. Hensel, he had been matriculated, and left petitioner's 7 Id. 280; but Court No. 1, contra; Simons v. Kutz, 1 As to nohome and removed to another State, where he Id. 553; Allison v. McFadden, 14 Id. 210. tice of intention to treat the transcript as a declaration, engaged in a marriage contract against the kind see Gamble v. Graves, 7 Phila. 433; Paris v. Hein, but earnest protest of the petitioner, and has be- supra; Ellis v. Pennington, supra; Govett v. Wiley, 13 come a prodigal and undutiful son." The peti-WEEKLY NOTES, 98. In the last case an election to treat tioner, therefore, prayed that the decree of adop- the transcript as a declaration was filed and held sufficient tion be revoked. The consent of the next friend without notice to the defendant. (the brother), which had been given to the first petition, was likewise given to the second. As to ruling the defendant to plead to the transcript, see Seidel v. Brecker, 6 Id. 135; Doerle v. Johnson, 7 Phila. 393; Levy v. Mustin, 3 WEEKLY NOTES, 220; Nathans v. Cummings, 1 Id. 416; Union Transfer Co. v. Copeland, 11 Phila. 365. After a rule to plead has been filed, the plaintiff may be compelled to serve the defendant with a copy of the transcript; Union Transfer Co. v. Copeland, supra, Nathans v. Cummings, supra; and if the defendant considers the transcript an insufficient statement of the cause of action, he may demur; Levy v. Mustin, supra. As to waiver of right to enter judgment of non pros. by acts of the defendant, compare Wright v. Henry, 4 WEEKLY NOTES, 347; and Wilson v. Kelley, 2 Id. 482; with Snyder v. Hensel, supra; as to a declaration filed and judgment of non pros. entered on the same day, see Ellis v. Donaghy, 6 WEEKLY NOTES, 541. See, also, Prichett v. Moss, 9 Id. 558; and Faries v. Weisel, 7 Id. 213.] C. P. No. 4. W. S. R. March 29, 1884. Geyn v. Clark. Practice-Rule of Court-Attorneys-Notaries public-Affidavits made before attorney of affi. ant are null. Patrick Kelly's Estate. Decedents' estates-Claim for services rendered-Where the claimant has rendered menial service to decedent, and no demand has been made for a long period of time, the law presumes payment-What proof of such claims is required. Sur exception to adjudication. ant, was the grandniece of decedent's wife. About four years before decedent's death he wrote to her in Ireland to come to Philadelphia and live with him; she was at that time about sixteen years old. The claimant for four years performed menial services for decedent, and nursed him in his last illness. The decedent said to a witness, that he had sent for the claimant to live with him and to do by her as his own child. He added that his wife was not as liberal as she might be in buying clothes for the claimant, who was dissatisfied in conseto give her a little money as she went along to quence, and that "he thought it would be better buy her clothing." That he did give her money was proved by the fact that on one occasion while claimant lived with him she sent a draft for $75 home to her parents. In passing upon this claim, the Auditing Judge (ASHMAN, J.) found as follows: "It was objected to the claim that it was barred by the Statute of Limitations, the decedent having The objection has often been refuted by the died more than six years before it was presented. 66 cases that decide that the executor or adminisAppeal, 5 Casey, 360.) The declaration of the trator is a trustee for creditors. (McClintock's testator that he did not want her to leave him under any considerations," that he would do by her as his own child," and that "it would be better to give her a little money as she went along," though made to third parties, were all competent to rebut the presumption that the claimant was there simply as a member of the family and a relation of his wife." $2 per week for 202 weeks, $404 was allowed as a quan tum meruit." To this ruling exceptions were filed. The decedent died in 1876. His widow and executrix died in 1882. This claim was not made until after the death of both. The claimant was a domestic servant; there is a presumption in England that they are paid periodically. Sellen v. Norman, 4 Carr J. P. 80. Gough v. Findon, 7 Exch. p. 50, is followed in Mc- Farley, contra. The Auditing Judge found facts which show a contract, and the relationship is too remote to afford a presumption that her services were rendered gratuitously. Kidder v. Boom Co., 12 Harris 193. October 27, 1883. THE COURt. The claim At the audit of the account of decedent's ex-ant is no doubt disappointed by the failure of ecutor it appeared that Mary Hammill, the claim-testator to include her among his beneficiaries, when she was induced to believe the contrary, if | before, could not recover therefor, without evithe testimony as to his intention to "do by her dence of an express contract made after the maras his own child," is to be relied upon. But riage. Nor will it be sufficient to prove mere this in no wise relieves her from the burden loose declarations of the decedent. (Candor's which the law casts upon all claiming as creditors Appeal, 5 Watts & Serg. 513.) It is not preof a decedent, of sustaining by clear and satis-tended in this case there was any express promfactory proof the validity of the alleged indebt- ise by decedent to pay wages, but the effort is edness, and the liability of the decedent. The made to render his estate liable as upon a quannecessity for strict proof is nowhere more ob- tum meruit. We think we have already shown vious than in cases like the present; a claim for that the claim cannot be sustained. The relamenial services and attendance upon the dece- tionship per se would be insufficient to rebut the dent during a period of more than four years, presumption of a promise to pay the law implies, never presented to him for payment during his where services are rendered and accepted with life, and no effort made to render his estate the expectation of receiving and rendering comliable for nearly seven years after his death. It pensation therefor; yet, when accompanied by is needless to say that such claims against dece- other facts and circumstances, it tends to rebut dents' estates are always to be regarded with the the presumption, and in many cases is held suffiutmost suspicion, and they have been repeatedly cient. (Horton's Appeal, 13 Norris, 62; Welch's disallowed by the courts, particularly where, as Estate, i Pennyp. 9; Walker's Estate, Chester Co. here, the circumstances show the existence of Rep. 445.) The claimant is met, however, by the family relation between the parties. The the further difficulty, that, admitting she was decedent was a granduncle of claimant, and employed as a domestic servant, she has offered she, by his invitation and request emigrated to no proof to overcome the presumption that she this country, became an inmate of his household, was paid her wages by decedent as they from and resided with him and his wife until he died. time to time accrued. (McConnell's Appeal, 38 Claimant was about fifteen years of age when she Leg. Int. 364, and Houck v. Houck, supra.) arrived and entered the family of decedent, and In the former case it was held that "in this she continued a member of his family during country, as in England, where a person serves four years or more. It is for these years she in the capacity of a domestic servant, and no now claims compensation for services as a demand for payment of wages is made for a condomestic. The testimony shows that claimant siderable period after such service has terminated, was not considered as a household servant by the inference is either that the wages have been decedent and his wife, who were childless, but paid, or that the service was performed on the in the light of one of their kindred, who was re-footing that no payment was to be made." The ceiving a home, clothing and maintenance, and principle here laid down is directly in the way in return for which she assisted in and perhaps of any recovery by the claimant. Of course it performed the greater part of the labor of the is to be remembered this presumption is one of household. On one occasion, decedent, in fact, and may be rebutted. But the claimant conversation with a witness, stated that he had has failed to do so, and her claim must be dissent for the claimant "to live with them, and to do by her as his own child." Such a declaration would certainly not be made respecting one who occupied the position in his family of a hired servant. It was also shown that claimant was provided with money to purchase her clothing, and sufficient to send a draft home to her parents. It thus sufficiently appears, that, from the relations existing between claimant and decedent, she should be obliged to prove an express contract by the latter to pay her wages for her services. Hollowbush's Estate (36 Leg. Int. 149), Hess's Estate (Id. 451), and Houck v. Houck (1 Chester Co. Rep. 370; 11 Weekly Notes, 262), where it was held that a daughter who had rendered services to her parents as maid of all work, without an express promise by them to pay for the same, married, and after her marriage continued to render similar services as allowed. As was observed in Houck v. Houck, supra, by PAXSON, Justice, in regard to the claim in that case, so we may say respecting the present, there was no reason why claimant could not have collected her wages during the lifetime of her uncle, as he was in good circumstances, the owner of real estate, and abundantly able to pay. Instead of that she waits until after the death of decedent and his wife, the only parties who would in all probability be able to successfully oppose her claim, and then proceeds against the estate in the hands of the executor. It seems to us that such a claim is an afterthought, and was never contemplated by the claimant during the lifetime of decedent. The exception to its award is sustained, and the adjudication corrected in the decree filed herewith. Opinion by HANNA, P. J. E. F. H. WEEKLY NOTES OF CASES. house left her by her husband. She and her son ran the butchering business until her marriage with McDermott, and the son continued in the same place for some time, and until McDermott and his wife moved in and took it off his hands, VOL. XIV.] THURSDAY, JUNE 12, 1884. [No. 27 which was in 1869; they then ran the business Supreme Court. Jan. '84, 128. McDermott's Appeal. Husband and wife-Gift-Decedents' estates. The earnings of a wife belong to her husband, save in those exceptional cases specified by Acts of Assembly. Such earnings do not therefore belong to the wife, unless the husband has made a gift of them to her. until her death, in 1875. When they embarked in the business he was without experience as a butcher, having been a carpenter by trade; and he was also without any capacity to keep books, March 26, 1884. or do anything else requiring the ability to write. She assisted him in the shop, waiting on customers, kept the books, deposited the money, and drew the checks and notes-all in his name. There was kept at the same bank two accounts, one called a "business account," which was in his name, and one a deposit or "savings account," drawing interest, which was kept in her name. It was from this last account that the fund in dispute came. The bank books show that the business account commenced in December, 1869, with a deposit of $470, and from that time the deposits ran something like $200 per month. The savings fund account opens in November, 1872, with a deposit of $1400, followed by one January 2, 1873, of $400; March 19, $600; and at the end of 1873 this fund amounted to $2800. In June of 1874 the fund had reached $3873, when $500 was withdrawn by the wife; and at the time of her death the fund was $4840.73, as reported by the administrator in his account. During the first two of the six years that McDermott and wife occupied the Gerrity premises as a residence and butcher shop the rent was paid by her application of the sum A widow, carrying on a butchering business in premises belonging to her late husband, married again. Husband and wife continued to carry on the business, in which the husband was not versed. It was chiefly through her skill, industry, and economy that profits were realized. A portion of those profits were put aside in a savings fund in the wife's name, but there was no evidence to show that the husband knew of the existence of such deposit. Immediately after the wife's death the husband inquired for the deposit-book, and declared that the money was or ought to be his. On the settlement of the account of the wife's administrator: Held, that the profits of the business all belonged primarily to the husband; that there was no sufficient evidence to show that he had made a gift of them to his wife, and that the husband was entitled to the sum in question accordingly. Appeal of John McDermott from a decree of the Orphans' Court of Luzerne County distribut-on Gerrity's debts, and at her death the rent ing a fund in the hands of H. R. Hughes, administrator of Mary McDermott, deceased, wife of appellant. The appellant claimed the sum of $4840.73 as his own property, this being the amount of a deposit which his wife at the time of her death had in the Miners' Savings Bank of Pittston. (See McDermott v. Miners' Savings Bank of Pittston, 12 WEEKLY NOTES, 13.) The account was referred to an Auditor, by whom the facts were found to be as follows: The decedent married John McDermott in 1866 and died in 1875, leaving to survive her as heirs her said husband and six children, one by a husband named Rouse, four by one named Gerrity, and one by McDermott. Her husband, Gerrity, left her by will the use of all his property during widowhood, but the estate consisted almost entirely of the house and lot in Pittston, where McDermott's business was carried on, as hereafter stated. After Gerrity's death she kept up a thrifty business of some sort, until her son Martin had learned the business of butchering, and then she joined him as an assistant in the owed by McDermott on a lease from the guardian of the Gerrity children was $975, for which the administrator has been attached. It does not distinctly appear that Mrs. McDermott had any money or property of her own separate estate at the time of the marriage, except as above stated. It does appear that McDermott had at the time he went into business real estate valued at about $2000, which he sold. At the death of his wife he had a special certificate of deposit at bank in his own name of $1300, accounts on book, since collected, amounting to $1000, and a balance on the business bank account of $143.58. Except the rent account, his debts amounted to something like $1000, which were nearly all contracted in the business. Some of the creditors have attached the fund, but this will more fully appear in the report of the audit figures. Of the savings fund account $700 was deposited by the wife in checks drawn by her on her husband's business account, and the source of the balance of the fund is not directly proven, but we feel safe in finding as matter of fact that it came from the business, and was deposited by her in her |