the plaintiff, which was accordingly done, and lated to the transactions of her husband: 1 Gr. judgment was entered thereon. Defendant ap- Ev., sec. 338, (15th Ed.); Cornell v. Vanartsdalen, pealed, assigning for error, inter alia, the ruling 4 Pa. 364; Peiffer v. Lytle, 58 Pa. 386; Robb's Apin the admission of evidence as above noted. William McClean, (William A. Mc Clean with him), for appellant. William McSherry, Jr., for appellee. peal, 98 Pa. 501. The defendant was a competent witness, and her testimony going to show that she was a mere surety on the note should have been received. The first assignment of error being sustained, it is unnecessary to discuss the others. The judgment is reversed, and a venire facias de novo awarded. Superior Court. ties-Subrogation. W. M. S., Jr. March 12, 1897 An executor, who without being directed so to do by ordinary creditor, and is not entitled to any preference in a decree of Court, pays a debt of his testator, stands as an the distribution of the decedent's estate. When a surety pays the debt of his principal he is entitled to be subrogated to all the rights and remedies of the creditors as against his co-sureties in precisely the same manner as against the principal debtor, and is substituted in the place of the creditor and entitled to enforce all his liens, priorities and means of payment. April 12, 1897. RICE, P. J. No interest or policy of law now makes any person an incompetent witness in any civil case or proceeding unless he is shown to come within one of the specified exceptions, and the only exceptions we are here called upon to consider are those contained in March '97, 43. clauses (c) and (e) of section five of the Act of May 23, 1887, P. L. 158. By clause (e) the disqualification is made to depend not only on the fact of the witness being a surviving or remain- Decedent's estate-Distribution-Payment by sureing party to the thing or contract in action, but also on the fact of his having an interest adverse to the right of the deceased party which right| has passed by his own act or the act of the law to a party on the record who represents his interest in the subject in controversy. The deceased party to the contract in action was Adam Braunreuter, but his right had not passed to a party on the record who represented his interest. The issue was between Joseph H. Strause and Elise Braunreuter. The legal representative of Adam Braunreuter was not a party to the record, and Appeal of David B. Nace, executor of the last the testimony which the defendant proposed to will and testament of Daniel Logan, deceased, give related to matters occurring between her and from the decree of the Orphans Court of Fulton the agent of the living plaintiff, and concerning County, confirming the report of the auditor apwhich he had testified fully at the instance of the pointed to distribute the estate of James Cooper, plaintiff. The estate of Adam Braunreuter may deceased. have been interested in the question being tried, but not in the immediate result of the suit. There is wanting, therefore, one of the essentials necessary to bring the case within the exception. The language of the clause is plain and unambiguous, and there is no justification for construction whereby it shall be extended to cases not expressly excepted from the general rule of competency. But even if there were room for construction we think the decision in Bank v. Henning, 171 Pa. 399, would be conclusive of the question for determination. The facts of the case are set forth in the opinion of the Superior Court. W. Rush Gillan, (with him J. Nelson Sipes and W. U. Brewer), for appellant. George A. Smith, (M. R. Shaffner with him), for appellees. April 19, 1897. BEAVER, J. On the 18th of February, 1888, the administrators of James Cooper filed their account in the Orphans' Court, showing personal assets amounting to $3807.15, and credits for sundry payments to creditors Nor was she an incompetent witness under amounting to $3383.17, leaving a balance in the clause (c). What she proposed to testify to was hands of the accountants of $423.99. This acin no sense a confidential communication, and the count was confirmed March 19, 1888. The appelcommon law rule which prevents the husband or lants do not seek to go back of the confirma-, wife from divulging in testimony such communi- tion of this account. They seem to admit that cations after the death of the other does not ap- the confirmation of the said account by the Orply. The wife after the death of the husband is phans' Court protects the administrators as to competent to prove facts coming to her knowl- the payments made prior to that time. They seek edge from other sources, and not by means of a distribution of the balance in the hands of the her situation as a wife, notwithstanding they re-accountants according to law. The distribution of this balance was referred to an auditor who the first of these directions we think the Court finds, in addition to the facts already stated, that was in error. Mrs. Cooper, so far as the payat the time of the confirmation of the account ment of interest by her was concerned, stood in there were unpaid debts of the estate considerably relation to such payments as an ordinary crediin excess of the amount of the balance; that as tor. If the money was advanced by her as an into a judgment of Pitman, administrator of An- dividual, as the auditor finds as a fact, she cannot drew Fisher, deceased, for purchase money of claim a preference. If it was paid out as adminisa farm purchased from the said administrator and trator, she did it at her peril, and is not protected a dower of $1000, the interest of which was pay- by any decree of distribution. She is, therefore, able to Catharine Fisher, widow of Andrew so far as the $395 paid by her, in the position of Fisher, deceased, during her life and the principal an ordinary creditor, entitled to a pro rata of the to his heirs at her death, were provided for by balance in the hands of herself and her co-adminan agreement made with two of the sons of James istrator, and no more. Cooper, who took the said farm and agreed to To what extent is Logan a creditor of the espay the encumbrances aforementioned. The aud- tate of James Cooper, his co-obligor on the Mcitor also finds that "James Cooper, Daniel Lo- Donald bond? There were three sureties. Judggan and George J. Pitman, became joint sureties ment was obtained against one for the entire for R. A. McDonald, administrator of the estate amount which was paid by him. He has a right of John Kittell for the sale of the real estate of to call upon each of his co-sureties for contributhe said Kittell, in the sum of $18,000," and that tion to the extent of one-third of the amount on the 8th of October, 1895, a judgment was ob- paid. Pitman, the third of the co-sureties, is tained by Mrs. Loretta J. McDonald, one of the dead. There is no evidence of any kind that his heirs of John Kittell, against the said McDonald estate is insolvent or in any way unable to pay the and Logan as his surety, for the sum of $3961.80, full amount of the contribution which it is liable her share in the real estate of John Kittell; that to make to Logan's estate. Cooper's estate is, Logan paid this judgment November 18, 1895, therefore, liable to Logan's estate for the onethen amounting to $3986, and that Cooper and third of the amount which was paid by Logan Pitman, Logan's co-obligors in the bond, were to Mrs. McDonald. So far as the personal esboth dead at the time Mrs. McDonald instituted tate of Cooper is concerned, it is unable to make her suit. It further appears from the facts found contribution to that extent. How then is the by the auditor that one of the administrators of contribution which it can make to be secured the estate had between the date of filing the first and enforced? There can be no doubt that, if account and the date of the audit paid $395, as Mrs. McDonald were pursuing Cooper's estate, interest on the Fisher judgment out of her own she could prove her claim for and be entitled to money, but with the intention on her part to re- a dividend upon the whole amount due her, but imburse herself or receive from the estate the Logan, the co-surety, paid her the full amount payments so made. of the claim. He is, therefore, entitled to subroUnder the facts, as found by the auditor, which gation to the ownership of the security held by are practically undisputed, the two claimants for Mrs. McDonald, namely, the bond given the fund are Mrs. Sarah Cooper, $395, and the by the administrator and three sureties, executor of Daniel Logan, one-third of $3986, and the judgment which was recovered which equals $1328.66, and he distributes the net thereon for Mrs. McDonald's use against balance of $571.47, after deducting the costs of Logan. As to the general doctrine of subrogaaudit, to these two claims pro rata. tion, see Croft v. Moore, 9 Watts 451, and MoUpon a review of the findings and conclusions sier's Appeal, 56 Pa. 76. In the latter it is said: of the auditor upon exception in the Orphans' "So, where one of several joint sureties has paid Court, the auditor was directed by the Court to the whole debt, he will be entitled to the judgdeduct the sum of $355 interest paid on the ment to enforce contribution by his co-sureties." Fisher judgment, now belonging to Mrs. Allen, In Hess's Estate, 69 Pa. 272, it was expressly by Mrs. Cooper, before the fund should be called ruled that one of two joint sureties who had upon for contribution to the claim made by Lo- paid the entire debt was entitled to a dividend gan as co-surety of Cooper, and that, after such upon the full amount of the debt out of the esdeduction, distribution should be made to Logan, tate of co-surety which was insolvent, up to the on the basis of $3986, the full amount paid by extent of the one-half of what he had paid; Mr. him on the McDonald judgment, and of $40, the Justice READ, in a learned opinion upon the subbalance paid by Mrs. Cooper in interest on the ject, saying: "In America and certainly in PennFisher judgment assigned to Mrs. Allen. As to sylvania, a surety paying the debt of his princi distribute the balance in the hands of Sarah J. Cooper and Jennie E. Cooper, administratrices of the estate of James Cooper, deceased. George A. Smith, (M. R. Shaffner with him), for appellants. W. Rush Gillan, (with him J. Nelson Sipes and W. U. Brewer), for appellee. pal is entitled to be subrogated to all the rights ceased, from the decree of the Orphans' Court of and remedies of the creditors as against his co- Fulton County, confirming the report of John sureties in precisely the same manner as against P. Sipes, an auditor appointed by said Court to the principal debtor and is substituted in the place of the creditor and entitled to enforce all his liens, priorities and means of payment." It seems to be settled, therefore, that Logan or his executor since his death, was entitled to claim out of the balance in the hands of Cooper's administrator a dividend upon the entire amount of the judgment which had been obtained against him, namely, $3986, the dividend amounting to much less than the one-third of the amount of the judgment. The direction of the Court below in this behalf is, therefore, affirmed and it is directed that the net balance of $571.47 in the hands of the administrators of Cooper, as found by the auditor, be divided pro rata between the claims of Nace, executor of Logan, for $3986, and Sarah J. Cooper, $395. April 19, 1897. BEAVER, J. The facts of this case have been somewhat fully set forth in the appeal of Nace, Executor of Logan, No. 43 of March term, 1897, which was an appeal from the same decree of the Orphans' Court as this. A claim was made before the auditor for an allowance of $329.84 paid by the administrators on account of the Fisher judgment. The auditor found, however, as a fact that such payment was made on April 3, 1887, ten months before the account was filed, and that the administrator "could not tell whether she took credit in the account for all she had paid up to the time of filing or not." If the payment were included in the credits claimed in the account, she was, of course, entitled to nothing. If it were not included, the payment not having been sanctioned by the Court by virtue of the confirmation of the account, she could in no event have claimed more than a pro rata dividend thereon. In view of the uncertainty as to whether or not the amount was March 12, 1897. included in the account, we think the auditor was justified in rejecting the claim. Inasmuch, however, as Mrs. Cooper was not entitled to a preference as to any portion of the amount of interest paid by her, the assignments of error are sustained, the decree of the Court below is reversed and the record is remitted to make distribution of the balance in the hands of the administrators, as hereinbefore specified; costs to be paid by the appellees. [See next case.] March '97, 53. Superior Court. W. C. S. Decedent's estate-Distribution of Payment by administrators-Allowance of. A claim was made before the auditor for an allowance of $329.84 paid by the administratrix on account of a judgment, which payment was found by the auditor to have been made ten months before the filing of the account, and as the administratrix "could not tell whether she took credit on the account for all she had paid, up the time of filing or not," the auditor rejected the claim: Held, that in view of the uncertainty, the auditor was justified in his findings. to Appeal of Sarah J. Cooper and Jennie E. Cooper, administratrices of James Cooper, de As to the first, third and fourth assignments of error, they are sufficiently disposed of in the opinion which we have this day filed in Nace, Exr. of Logan's Appeal. We cannot affirm the decree of the Court below; but, inasmuch as none of the assignments of error as made by this appellant are sustained, we refer to Nace's Appeal, supra, for the proper distribution to be made of the fund in the hands of the administrators, and dismiss this appeal at the costs of the appellant. [See preceding case. ] W. C. S. WEEKLY NOTES OF CASES VOL. XL.] FRIDAY, JUNE 4, 1897. Supreme Court. Jan. '96, 554. Supreme Court. [No. 12. January 25, 1897. Jurisdiction in equity-Subject matter beyond territorial cognizance of Court-Injunction-Right of way. Where the parties are within the jurisdiction of a Court of equity, it will ordinarily grant relief even in reference to a matter beyond the territorial jurisdiction of the Court. Morris v. Remington, 1 Pars. Sel. Eq. Cas. 387, distinguished. the continuation of the said improved road by a neighbor through adjoining land, the road became a part of a system of boulevards. That thereby the defendant was enabled to sell the tracts described on either side of the strip laid out as a road to the plaintiffs as corner lots, for the highest prices which, up to that time, had been obtained for real estate in the district of Devon. That the plaintiffs would not have purchased the lots now occupied by them, nor have paid the price which they did, had not the macadamized road existed, as laid out at the time of their purchase, and had not each understood that it was to be a permanent highway. That prior to the time of purchase of the said lots by the plaintiffs, the defendant had dedicated the intervening strip to public use, and had laid out the same as a public highway or boulevard for public use. That the strip in question was 68.31 feet in width, and had been used continually for more than four years, and still was used as a highway by the public. One who has sold lots with reference to an ornamental boulevard laid out and dedicated by him, the title to which That at the time of their respective purchases he has retained, will be enjoined from erecting a building thereon, which would affect its use as a highway, where by the plaintiffs, the defendant stated to them, it appears that he has threatened to erect such a building. for the purpose of inducing them to purchase, that the strip of ground referred to had been dedicated by him for public use, and that it would remain open for such use forever. Appeal of Valentine Clad and Annie F. Walton, from the decree of the Common Pleas No. 4, of Philadelphia County, dismissing their bill filed against Charles Paist. This was a proceeding in equity. That the defendant, contrary to his express That Annie F. Walton, one of the plaintiffs, had paid for her land the sum of $3500, and had since erected a dwelling house thereon at great The bill averred that the defendant, Charles expense; that Valentine Clad, the remaining Paist, by deeds dated twenty-fifth day of Sep- plaintiff, had paid for his land the sum of $3000, tember, A. D. 1890, and twenty-second day of and had since erected a dwelling house thereon May, A. D. 1891, both duly recorded in Chester at great expense. county, Pennsylvania, conveyed two certain pieces of ground, to the plaintiffs respectively in representations to the plaintiffs, in violation of fce. That prior to the purchases by the plaintiffs the defendant was the owner in fee simple of a certain tract of ground, which lay between the lots conveyed to the plaintiffs, and that the three The bill averred that the defendant was about lots together formed a large tract belonging to to erect certain buildings on the said land, and the defendant, being a part of the district laid to close and obstruct it as a highway, to the irout for suburban residences, known as Devon. reparable loss and damage of the plaintiffs. That the value of this large tract was impaired The prayers were for: by the fact that, while bounded by public highways on the east and west, it was separated from the public highways on the north and south by other ground. The defendant was unable on that account to offer any part of it for sale as a corner lot. In order to obtain a higher price for this land he converted a strip lying between the lots conveyed to the plaintiffs into a handsome mac- The answer admitted the purchase by the plainadamized road, and ornamented it with plantings tiffs from the defendant of the lots described in of flowers, and so exhibited it to the plaintiffs the bill, and the ownership by the defendant of before either of them purchased. That through the intervening tract. his dedication of the said tract for public use, and in fraud of plaintiffs' rights, had expressed the intention of erecting buildings thereon. (1) An injunction, preliminary until hearing and perpetual thereafter, enjoining and restraining the defendant from interfering in any manner with the free use of said tract of land as a public highway and from erecting any building thereon of any kind or nature. (2) Further relief. It denied the allegations of the bill, that the the conclusion which he has reached, viz., that value of the large tract belonging to the defendant the Court is without jurisdiction of the complaint was impaired by its separation from public high-set forth in the plaintiff's bill. On the contrary, ways on the north and south by other ground, we entertain no doubt whatever of the jurisdicand that it was for the purpose of obtaining ation. The maxim of equity in such cases is higher price for his land that he converted the æquitas agit in personam, and therefore it makes strip into a macadamized road; nor was it for no difference that the alleged wrongful act the reason that defendant was enabled to sell to charged in the bill to have been contemplated by the plaintiffs their lots for high prices. the defendant was to have been executed in anIt denied that the defendant had dedicated the other county. The defendant is within our jurisintervening strip to public use, or had laid out diction, and has appeared by counsel and filed the same as a public highway or boulevard for an answer. It is entirely within the power of a public use, and that the same had been used for Court of equity to enjoin against an intended more than four years, and was now used by the unlawful and injurious act which is threatened public as a highway. It averred, on the contrary, to be done in another jurisdiction. Having that he had fenced in the strip a number of times jurisdiction of the person of the defendant and the since the conveyances to the plaintiffs, and had power to enforce our decree against him, it makes denied the public access thereto. no difference in what jurisdiction the unlawful This is It denied that at the time of their purchases act which is threatened is to be done. he had stated to the plaintiffs, for the purpose of the well settled law upon the subject. The cases inducing them to purchase, that the said strip had are as thick as 'autumn leaves that strew the been dedicated by him for public use, and would brooks in Vallambrosa,' and have been accumuremain open for such use forever. It averred lating since the days of Penn v. Lord Baltimore, that he had refused to convey to the plaintiffs 1 Ves., Sr., 444, in the English reports, the lots of ground that would front on the said mac- United States reports and the reports of the sevadamized avenue, and at the time of the convey-eral States. One of the latest is: Jennings v. ance to the plaintiffs he had refused to grant to Beale, 158 Pa. 283, decided in 1893, in which it the plaintiffs any rights in the said intervening was decided that a Court of equity, where it has strip of ground. jurisdiction of the person of the defendant, may The prices paid by the plaintiffs and the erec-issue an injunction to prevent a trespass by him tion of expensive houses on their ground were upon lands in another county. admitted. "The learned master was, of course, well acIt was denied that the defendant was about to quainted with the decisions upon this point, but erect certain buildings on the said ground, but it was of opinion that the case in hand was an exwas averred that at the request of certain of the ception to the general rule, and fell within the inhabitants of Devon he agreed to erect on said ruling by Judge KING, in the case of Morris v. lot a school house, and rent the same at a rental Remington, 1 Parsons' Select Equity Cases, 387. of six per cent. on the cost of building, pro- We do not think so. Judge KING's decision in vided the applicants should first obtain the con- that case rested upon a peculiar state of facts, sent of the plaintiffs and other property owners the chief feature of which was that the bill sought of Devon to the erection of said school house to abate a nuisance already accomplished and on said lot. existing, and which the Court had no power to The case was referred to Hampton L. Carson, abate, by reason of its want of authority to send Esq., as referee. He found the facts in accord- a writ of assistance, or other similar process, ance with the bill and prepared a report recom-into an adjoining county for that purpose, and mending a decree as prayed, but on exceptions therefore Judge KING, exercising his discretion filed before him, held that as the right of way as a chancellor, relegated the complaint to the claimed was in Chester county, and the parties Courts of Montgomery county. This peculiarwere not residents of Philadelphia county, there ity of the case and this distinction were clearly was no jurisdiction, and accordingly recommend-pointed out by Judge STRONG, in Munson v. ed that the bill be dismissed and the costs di- Tryon, 6 Phila., 395, where, sitting in the old vided. Exceptions were filed by the plaintiffs to Court of Nisi Prius in Philadelphia, he enjoined the dismissal of their bill, by the defendant to parties against acts of waste and trespass to the placing of any of the costs upon him. After lands lying in Schuylkill county, holding that, argument, the Court delivered the following having jurisdiction of the persons of the defendopinion: ants, it mattered not in the least that the lands "We are unable to agree with the master in were without his jurisdiction. In view of all the |