PARTNERSHIP-Conti rued.

sold, and deduct the cost from the rent. (Super. Ct.) May v. Troutman, 63.

Where a tenant is in possession of a portion of a store owned by two, either as partners or tenants in common, and authority is given by one of the owners to the other to rent the premises, as a whole, to a third person, such authority includes the right to pay the tenant in possession a reasonable sum, in order to induce him to surrender the remaining portion of his term. Id.

In the distribution of the proceeds of a sale of land, held by partners as tenants in common, the individual creditor of a co-tenant will have priority over the firm claiming by its title and in contradiction of the deed. Stover v. Stover, 75.

Where, at his request, a summary of amounts, collected and to be collected, was rendered by one partner to another, and no objection has been made to it, it may be taken as prima facie evidence of all that was stated in it, but liable to be overcome by proof of fraud or mistake in any item therein. McGinn v. Benner, 260.

It is no defence to an action upon a promissory note, signed by the two members of a firm, that a receiver of the firm had been appointed at the sugges ion of one of the partners. C. & C. Electric Co. v. St. Clair, 401. A judgment will be entered against one partner who has been served with the process, if it appear that the writ has been returned "nihil habet" as to the other partner, and, if the record shows such has been the case and the plaintiff's statement fails to contain a reference to such fact, a judgment will not be set aside because of such failure, but plaintiff will be allowed to amend in the Supreme Court nunc pro tunc. Id.

PAYMENT-Continued.

the appeal was stricken off: held, error, as it was the duty of the prothonotary to present the check, or return it, or notify the defendants and give them the opportunity to pay him the monev. Burns 7. Smith, 339.

PENALTY FOR APPEAL FOR DELAY. Where, after taking an appeal, nothing is done to prepare the case for a hearing in the Supreme Court, either by bringing up the record or preparing a paper book, the inference is irresistible that the appeal is for delay only, and the penalty given by the Act of May 25, 1874, P. L. 227, will be imposed. Martin v. Rider, 316.

An appeal was taken in a negligence case in which there was no question made as to the right of recovery, and the defence took no exceptions, the appellant filed no assignments of error, furnished no paper books, but on the return day in the Supreme Court answered “argument." The appeal was non-prossed. It also appeared that, before the return day, the appellant had endeavored to get the appellee to accept a less sum for his judgment. The appellant alleged that the appeal was taken under the advice of counsel in the hope that the Supreme Court would exercise its powers of reducing the verdict, under the Act of May 26, 1891, but, counsel becoming convinced before the time fixed for argument that the judgment could not be reversed, the appeal was abandoned: held, the facts did not show that the appeal was for delay only, and that the penalty should not be imposed. STERRETT C. J. dissented. Wolf v. Philadelphia Traction Co., 317.

A., B., C. and D, by writing, employed E. to carry on a business, appointed him agent, and advanced him $2000. By the writing, A., B., C. and D. were to be the owners of all stock bought by E., both in its natural and manufactured state. E. was to receive all the profits, and to be solely responsible for all losses: held, as between themselves, this agreement did not make A, B., C. and D. partners; (2) that a bill in equity would not lie at the suit of A. against B., C. and D. for an accounting, as partners, on A.'s claim that he had furnished materials to E. for which he was not paid: (3) that even on the assumption that the partnership existed, A.'s claim was not incurred as a partner, but was founded on a simple contract, for which his remedy, if any, was by action in assumpsit Id.

See EVIDENCE. Folk v. Schaeffer, 298. PARTNERSHIP ASSOCIATION LIMITED. Where a partnership association limited has received an article, purchased for it by its agent, has used it and paid part of the price thereof, it cannot, in an action to recover the balance of the price, set up as a defence, while retaining the article purchased, that the contract for the payment of the price, which exceeded $500, was not reduced to writing and signed by at least two mana gers of the association. Yaryan Co. v. Pennsylvania Glue Co., 175.

PAYMENT. Four days after an award of arbitrators, the defendants appealed, and one of them gave his check for the costs to the prothonotary, who retained it until the time in which the appeal could be perfected by payment of costs in money had passed. Upon the docket this entry was made "C. S. by check pays costs," and upon this entry, and upon the fact that the money had not been actually received within the twenty days allowed

PLEADING. While pleading to a sci, fa. sur mechanics' lien is ger e ally a waiver of defects in the claim, this is not the case if defendant has moved to strike off the claim in due time. Wharton v. Real Estate Investment Co., 33.

Where the negligence, relied on to sustain a recovery, is that a township has not erected a bridge at a railroad crossing, where such bridge is required, it must be set out in the statement. (Super. Ct.) Dixon v. Butler, 209.

In quo warranto to forfeit a franchise granted by special Act, a suggestion setting forth the violation of the condition, using in effect the words creating it, is, after verdict, sufficient to sustain a judgment for plaintiff, although additional definiteness might have been required, had the objection been taken before trial. Commonwealth v. Sturtevant, 429.

The omission to charge a willful performance or nonperformance of acts constituting a condition, is not ground for arresting judgment for plaintiff in a quo wartanto. Id.

A statement which fails to show whether the claim is based upon an express contract, or a quantum meruit is defective. (C. P.) Wells v. Real Estate Investment Co., 468.

POWER. The expression "authorize and empower," implies discretion; there is no authority to coerce the executor to sell and as, where in his judgment it does not appear to the best advantage of the estate, he may refuse to sell, the question of conversion lies wholly with him. Seeds v. Burk, 290.

The duration of an executor's power to sell real estate depends upon the intention of the testator as gathered from the whole will. Putts v. Breneman, 464.

PRESUMPTION-Continued.

ficient proof that it was collusive or fraudulent. (Super. Ct.) Snyder v. Boring, 275.

Á breach of law cannot be presumed, but the presumption is that every person has conformed to the law until the contrary appears by proof, the burden of which is upon him who alleges it. Phoenix Brewing Co. v. Rumbarger, 295.

In an action against sureties, on a bond conditioned for the payment of liquors purchased, it was claimed that the plaintiff had not shown that he had branded his barrels as required by law; held, the burden of proof was on the defendant. Id.

As against a private person, a long continued occupation of a public highway for a public use, or a private use, not inconsistent with the public use, will be presumed to be of right. (Super. Ct.) Wenger Rohrer, 109.

See BURDEN OF PROOF. Martin's Estate, 283. PRESUMPTION OF DEATH. A presumption of death is raised by an absence of a person from his domicil, unheard of for seven years. But when a person removes from his domicil in this state to establish a home in another state, and at a place well known, this is a change of residence, and absence from the last domicil is that upon which the presumption must be built. If alive when last heard of at his new domicil, the presumption is that life continues. Francis v. Francis, 217.

| PRINCIPAL AND SURETY-Continued. in an action against the surety. Phoenix Brewing Co. v. Rumbarger, 295.

In order to exonerate a surety by a change of the original contract, it must appear that the original obliga tion was changed by a binding agreement, and the new contract must be such as would be a valid defence by the principal debtor to an action on the original agreement. Id.

A bond was executed by R. as principal, with S. and M. sureties, conditioned that R. would pay all accounts for liquors purchased by him of P., "when and as often as the same may fall due or when thereunto legally required." Beer was purchased by R. from P. on a running account and payments were made from time to time. After fourteen months the balance due was $1700. No final settlement was made, but R., without any request and wholly of his own motion, sent two judgment notes to P., one at three months and the other due at six months, for the balance appearing on the books to be due. The receipt of these notes was not acknowledged by P., nor were they entered upon the books, but the first note was paid, and when the second note matured, judgment was entered on it and execution issued. Subsequently P. brought suit on the bond to recover the penalty; held, there was no satisfaction or merger of the original debt or the giving of time to the principal debtor which varied the contract and exonerated the sureties. Id.

The fact that a father has allowed his son to draw out some of the money in the hands of a stock broker and use it for himself, does not operate as a general sanction of all the son's acts, or clothe him with the authority of a general agent. Id.

The reporter of a mercantile agency is the agent of the subscribers, and not of the merchant whose affairs he investigates. (Super. Ct.) Ralph v. Fon Dersmith, 116.

A purchaser cannot be held guilty of fraud,on account of representations made by his purchasing agent, when it does not appear that the latter was authorized to make any statement as to the financial standing of his employer. Id.

While the policy of the law forbids that an agent should act for both vendor and vendee, the mere signing, on behalf of the vendee, by the agent of the vendor will not vititate a contract, such signing is surplusage, and the vendee may accept the contract otherwise. Borie v. Satterthwaite, 170.

Although agency cannot be proved by declarations of the alleged agent, yet he is a competent witness to prove his authority, and his testimony may not be restricted to the mere words used by the principal but is admissible generally on the whole subject. Lawall v. Groman, 197. A principal is bound by the untrue representations of his agent, irrespective of the knowledge of the agent as to their truth or untruth. R. Freedman v. The Provi dence Washington Ins. Co., 462.

An agent of a life insurance company who prepares an application for an insurance, is in so doing the agent of the company, not of the insured, and mistakes made by him cannot be used by the company to avoid the contract. Mullen v. Union Central Life Ins. Co., 529.

PRINCIPAL AND SURETY. A surety has a right to demand punctual performance of the contract, or perform it himself and sue for indemnity. Any act of the creditor which prevents this is a ground of defence

fence of privileged publication, to testify that the publisher of the article which reflected on the character of a

candidate for office "had information which led him to believe it was true." The circumstances leading to the belief must be shown. (Super. Ct.) Coates v. Wallace, 235.

PROBABLE CAUSE. The facts that an official, by not performing certain duties which he had been expected to perform, failed to receive fees, which, if received by him, should have been turned into the muni cipal treasury, and that said services were performed by somebody else, who was paid for them, do not afford probable cause for a charge that the said official took fees to which he was not legally entitled. (Super. Ct.) Coates v. Wallace, 235.

PROFITS. The meaning of the word "profits" is the excess of receipts over expenditures. (Super. Ct.) Lepore v. Twin Cities National Building and Loan Assn., 548.

PROMISSORY NOTE. It is no defence to an action upon a promissory note, signed by the two members of a firm, that a receiver of the firm had been appointed at the suggestion of one of the partners. C. & C. Electric Co. v. St. Clair, 401.

Where the defendant in an action upon a promissory note introduces proof that it was obtained from him fraudulently, the burden is shifted upon the plaintiff to show that he obtained the note without notice of fraud and for a valuable consideration. (Super. Ct.) Reeper v. Greevy, 494.

Where a plaintiff called for cross-examination testifies that he is an innocent holder for valuable consideration without notice of fraud, the jury should be instructed to render a verdict in favor of the defendant, if they do not believe the plaintiff's statement. Id.

The endorsement of a negotiable note by several persons in succession does not import a joint obligation, but several and successive obligations. Wolf v. Hostetter, 517.

PROOF OF WRITING. The answer, "It looks like it," to a question as to whether a writing is

RAILROAD CROSSING-Continued.

in some cases by one or more townships, and in others by one or more counties. (Super. Ct.) Dixon v. Butler,

209.

REFEREE-Continued.

The findings of fact by a referee are as conclusive upon a court of error as the finding of a jury. Ridge Avenue Pass. Ry. Co. v. City of Philadelphia, 453; Bruch v. Philadelphia, 474.

RATIFICATION. See CORPORATION. (Super. Ct.) Curry v. Claysville Cemetery Association, 536. RESCISSION. See FRAUD. (Super. Ct.) Ralph

v. Fon Dersmith, 116,

RECOGNIZANCE. In a suit upon a recogni zance, the entrance of a forfeiture stands for proof of all the steps necessary to complete the forfeiture, including the facts that the defendant and his bail were duly called and did not appear and answer, and the liability of the recognizors is absolutely fixed thereby, so that relief can only be obtained by petition to the Court to remit the forfeiture for cause shown. (Super. Ct.) Commonwealth v. Fogelman, 17.

The petitioner cannot allege as cause for remittance of forfeiture of recognizance, matter which might have been made a defence to the action on the recognizance,

when he has failed to make such defence, and judgment has been entered against him and execution issued. Id. The Court of Quarter Sessions may, in its discretion, remit or modify the forfeiture of a recognizance after judgment, but if it refuse to do so, when the action al leged might have been pleaded in defence to the action,

it is not reversible error. Id.

RECORD. The recording of a mortgage made by husband and wife of the wife's property, the acknowledg ment to which is insufficient in not stating the separate acknowledgment of the wife, is not actual notice to a purchaser at a sheriff's sale under a subsequent mortgage, beyond inviting him to make inquiry. (Super. Ct.) Stewart v. Dampman, 227.

RECOVERY OF POSSESSION BY PURCHASER AT SHERIFF'S SALE. In proceed ings brought under the act of June 16, 1836, P. L. 780, as amended by the act of 1878, by a purchaser at sheriff's sale, an affidavit as follows: "I verily believe that I am legally entitled to hold the premises in dispute against the petitioner; that I do not claim the same by, from or under the defendant, as whose property the same were sold, by title derived to me subsequent to the rendition of the judgment under which the same were sold, but by a dif ferent title," is not sufficient to oust the jurisdiction of the justice, does not come within the provisions of section 114, because it does not state how the defendant in the summary proceedings came into possession, or that she claims in her own right, or within section 115, because it does not name any one under whom the said defendant claims to hold. (Super. Ct.) Wilson v. Downing, 342. It is not too late to present the affidavit provided by sections 114 and 115, after the evidence has been presented before the justice, but before the case has been given to the jury. Id.

REFEREE. Where error is alleged in the finding of a referee, which has been confirmed by the court below, the appellant must point out the error assigned plainly and, this is not done, the appellate court will adopt the conclusion reached by the referee and ap. proved by the court whence the appeal comes. McGinn v. Benner, 260.

tion, on a jury trial the question of contributory negli testimony was clearly capable of more than one construcgence would have been for the jury, therefore, a referee having been substituted for the jury, his finding of fict on this point was conclusive. Id.

L. 149, providing for the reformation of a certificate of REFORMATION. The Act of May 25, 1878, P. acknowledgment, is not mandatory, but merely gives Power to the Courts to do that which, in the contemplation of the Act, it was right to do. (Super. Ct.) Stewart v. Dampman, 227.

life "after his death to his lawful child or children and REMAINDER. Testator devised realty to A. for to their heirs and assigns," but should A. "die without leaving lawful issue to survive him, or leaving such issue who should not live to the age of twenty-one years, nor A. had three children, their lawful is ue," then over. each of whom attained the age of twenty one years in A.'s lifetime. One of them, B., died during A.'s life

time, leaving a daughter C., who attained twenty one years and died before A. B. devised all his estate to C., testator's estate was vested, and was a descendable and who in turn devised it to D; held, the interest of B. in devisable estate both in his hands and in the hands of led to her share of the estate. Hinkson v. Lees, 287. his daughter C., and that C.'s devisee was therefore enti

scribe an estate in land, it may be used in the sense of While the word remainder is used technically to dethe balance of what is left or what may remain. Potts

v. Breneman, 464.

REMOTE AND PROXIMATE CAUSE.

A

railroad was crossed obliquely by a township road; for several hundred feet west of the crossing the railroad and highway were nearly parallel, and from ten to twenty-five feet apart, the track being from two to five feet lower than the highway, and there being no fence between them; a large clm bank was immediately south of the railroad, and extending to the side of the highway; to prevent the culm from reaching the railroad a long cribbing was built, which was from four to six feet from the southernmost rail, and not more than two to four feet from the side of passing coal cars. A wagon was being driven towards the crossing, and the horses, being frightened by a train coming in the same direction, reared and brought the back of the wagon against the cars,then went on towards the crossing, where the cars knocked the wagon on the bank, causing it to roll over between the cribbing and the cars, with the result that the occupants of the wagon were crushed to death between the cribbing and the cars: held, the cause of the death was proximately the fright of the horses and remotely the existence of the cribbing, for neither of which was the township liable. (Super. Ct.) Dixon v. Butler, 209; (Super. Ct.) Cuff v. Township of Butler, 213. See NEGLIGENCE. Donahue v. Kelly, 203.

RES ADJUDICATA. A judgment may be corrected for mistake and impeached for fraud, but only by the Court in which it was rendered, and, on proper application, it cannot be done in a collateral proceeding. McClain's Estate, 126.

After a third trial of an issue whether the defendant had executed a judgment note or not, a petition to open