quires and justifies the placing of the pauper on the poor books, and the law regards the justices as perfectly competent to conduct the inquiry that leads to this result, without giving notice to any one; and, second, it de cides where the pauper's legal settlement is, and of this the order of removal gives notice.' The justices first hear the evidence, and determine where the last place of settlement of the person or persons sought to be removed is. When they have judicially determined this fact, it is a judgment of a court of competent jurisdiction; and upon that judgment they issue the order of removal. This order justifies the overseers in removing the person or persons, willing or unwilling, to the poor district in which the justices have adjudged to be his or her last place of legal settlement. A notice of this judgment must be given to the overseers of the district to which a pauper has been removed, in order to bind that district. How this notice should be given the act of asscmbly does not provide. The usual practice has been to deliver the pauper, together with a copy of the order of removal. But the delivery of the pauper to the overseers of the district to which the justices have granted the order of removal is not essential. Overseers of Donegal Tp. v. Overseers of Sugar Creek Tp., (Pa. Sup.) 11 Atl. Rep. 213. I am of opinion that a service of the order of removal, or a copy thereof, on the overseers of such district, is sufficient notice, and especially under the circumstances of this case, as the evidence shows that the overseers of Walker Twp. could not find the pauper at the time the order of removal was served on the directors of the poor of Perry county. The order of removal in this case having been served on the steward of the house of employment of Perry county on January 20, 1892, and by him sent to John Freeland by next mail, and received by him prior to January 29, 1892, the directors of the poor and house of employment of Perry county had ample time to appeal to the next court of quarter sessions of Juniata county; and, not having so filed their appeal, the same is dismissed. And now, February 6, A. D. 1892, the appeal of the directors of the poor and house of employment of Perry county from the order of removal of C. B. Horning and Adam H. Weidman, two justices of the peace of Juniata county, for the removal of Martin Miller from the poor district of Walker Twp. to the poor district of Perry county, is dismissed."

E. R. Sponsler, J. Howard Neely, and W. H. Sponsler, for appellants. J. N. Keller and Atkinson & Pennell, for appellees.

PER CURIAM. The controlling facts of this case, together with the law applicable thereto, are so clearly and accurately stated in the opinion of the learned president of the quarter sessions that further elaboration of the questions involved is unnecessary.

Among other things, he finds that the order of removal was duly served on defendants prior to January 29, 1892. That was in ample time to have enabled them to appeal therefrom to the next court of quarter sessions, which commenced on the 1st and ended on the 4th of February, 1892. They neglected to do so, however; and, having afterwards filed their appeal to the April sessions following, a rule was taken to dismiss it, because it was out of time, and therefore unauthorized. That rule was made absolute, because the act of June 13, 1836, § 19, as construed by this court, expressly requires that such appeals shall be to the next court of quarter sessions after the order of removal is made, and not afterwards. Sugar Creek Overseers v. Washington Overseers, 62 Pa. St. 480; Cherry Tp. v. Marion Tp., 96 Pa. St. 532. It therefore follows that the decree dismissing the appeal was rightly entered, and the same is affirmed, with costs to be paid by the appellants.

(156 Pa. St. 368)

In re ALEXANDER'S ESTATE. Appeal of LIGHTNER. (Supreme Court of Pennsylvania. July 19, 1893.)

GUARDIAN AND WARD-SETTLEMENT AND RELEASE. A guardian, having received money from the estate of his wards' father, invested it in a judgment against their mother's father. In 1885 he submitted to his wards his account, and one of them, P., with his mother, certified it correct. Soon after, all the wards but J. being of age, he settled with them, and they made him a full release, acknowledging receipt of their shares, including their interests in the judgment, and certifying the correctness of his account. Afterwards the judgment debtor paid H., P., and J. interest on their shares up to 1889. The same year the guardian died. In 1890 H. and P. cited his administrator to account. In account filed January, 1891, he claimed credit for the wards' interests in the judgment, and the auditor allowed these except as to J. It appeared that none of the wards had before questioned the settlement of 1885. There was no evidence of fraud in the purchase of the judgment, nor of insufficiency of the property to pay it, nor of any attempt to collect it. There was no formal transfer on the docket to the wards, but they had never asked for it. Held, that the auditor's report

should be confirmed.

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

Petition of Howard Percy and James H. Alexander for citation on James H. Lightner, administrator c. t. a. of Newton Lightner, deceased, to file an account. The auditor's report was referred back for correction, in accordance with the opinion of the court. Exceptions by Lightner to the report as amended dismissed. Lightner appeals. Reversed.

Geo. A. Lane, for appellant. Wm. Aug. Atlee, for appellees.

THOMPSON, J. In 1867 Newton Lightner became the guardian of Mary, Howard, Per

cy, and James, minor children of James K. Alexander, deceased. As such guardian, he received $4,200, the purchase money of certain real estate belonging to the estate of James K. Alexander, deceased. Of this sum $1,400 was the interest of the widow, and the remaining $2,800 belonged to his wards. The entire sum was invested by the guardian in a judgment against James H. Hopkins, the father of Mrs. James K. Alexander. This judgment has been regularly revived up to the present time. Upon the judgment bond was noted that one-third of it belonged to Mrs. Alexander, the interest to be paid to her for life, and upon her death the principal to be paid to her children, and two-thirds to the guardian of the minor children of James K. Alexander, deceased. In April, 1885, the guardian submitted to his wards an account of his receipts and expenditures, and on May 1, 1885, Percy Alexander and his mother, Mrs. Alexander, certified that they had examined it, and found it to be correct. In July, 1885, when all of the wards except James were of age, he made a settlement with them, and they executed a full release from all claims and demands against him. In this they acknowledged that they have received their respective shares, they have examined the account, and have found it to be correct. In this settlement they receipted for their respective interests in this judgment against Hopkins. Subsequently, Hopkins, the debtor, paid to Howard the interest on his proportion of it, and Percy the interest on his proportion, both up to April 1, 1889. The guardian having died in November, 1889, the appellant was appointed administrator c. t. a. In July, 1890, Howard and Percy filed a petition for a citation upon the administrator to file an account. He accordingly filed his account January 2, 1891, and claimed credit for the guardian for the respective amounts of these wards' interests in the Hopkins judgment, and for a counsel fee of $150. The auditor allowed the counsel fee and those credits as to the wards that were of age when the release was executed, and 'disallowed any as to the ward who was not of age at the time. The court sustained the exception of the wards, overruled the finding of the auditor, and directed him to surcharge the accountant with the amounts of these wards' interests in the judgment and $100 of the counsel fee. This was done in an amended report, and it is assigned for.error. The guardian was the uncle of the wards, and appears to have been actuated by a kind interest in them, and a desire to serve them. From the time of his settlement with them in 1885 up to the time of his death no question appears to have been raised either as to the propriety or correctness of his actions as guardian. The letters written in 1887, 1888, and 1889 by Percy and James establish this conclusion, and clearly indicate that his action in regard to the Hopkins judgment was unques

tioned by them. They, in addition, received from Hopkins interest on their respective portions of this judgment. The auditor finds "that, while no actual transfer appears in the prothonotary's docket by Newton Lightner to these wards of said respective portions of this judgment, yet the fact is that James M. Hopkins, the debtor in this judgment, had paid to Howard Alexander the interest on $158.21 thereof up to April 1, 1889, the exact amount specified by Newton Lightner in said release to be Howard's portion thereof, and he paid to Percy Alexander the interest on $648.45 thereof up to April, 1889, the exact amount specified by Newton Lightner in said release to be Percy's portion thereof, and he paid to James H. Alexander the interest on $243.90 thereof up to April 1, 1889, the exact amount specified in said release to be James' portion thereof." Howard, in his receipt for interest, recites "that it is on $158, his portion of the judgment." In making the investment in this judgment no fraud is alleged or shown. It seems to have been regarded as judicious by the widow, as well as by the guardian. In fact the auditor finds, "as to the judgment not being good by reason of prior liens, there is no evidence offered to show the value of the property, or that it would not bring enough to satisfy this lien in full, and no attempt has been made to collect it." When the wards, three of them being of age, executed the release, there is no evidence that the guardian concealed any fact or made any misrepresentations. He acted in the transaction in entire good faith, and the auditor finds "the release is sufficient in form, and clearly sets out the manner of payment, and there is no evidence that these wards were not fully made acquainted with its contents." They in fact recognized his good faith by remaining silent for four years, by accepting their proportions of this judgment, and by receiving from the debtor interest on the same for several years. Haying made this settlement, executed the release, received interest, and having remained silent and acquiesced in them for years, these wards, without allegations or proof of fraud or mistake, cannot be permitted to set them aside. In Roth's Estate, 150 Pa. St. 266, 24 Atl. Rep. 685, it is said by Chief Justice Paxson: "The rule upon this subject was fairly stated in Lukens' Appeal, 7 Watts & S. 48, where it was said by Kennedy, J.: "The ward, under the express provision of the act of assembly, has a right to require that such settlement shall be made by the guardian before the court; but if he chooses, after his arrival at full age, to make a settlement with his guardian without the intervention of the court, and, after having received the amount agreed to be coming to him, to give an acquittance or release to the guardian, he ought not to trouble the court, or his guardian either, afterwards, without pointing out some mistake or other error in

the settlement, or showing that a fraud has been practiced on him by his guardian whereby he has been prejudiced.'" The fact that there was no formal transfer on the docket of their respective portions of the judgment to the wards will not warrant the conclusion that they are not bound by the release and settlement made in 1885. As the widow, the guardian, and the wards were the owners of the judgment, doubtless it was considered advisable that a formal record of the ownership of each should not be made. As these wards accepted their proportions of the judgment as found by the auditor, as the debtor paid them interest on their respective portions, as they have for years been in fact the owners of their interests in the same, without any request to assign upon the record such respective interests, and as such ownership, with all the rights incident thereto, is not denied by any one, they cannot successfully assert that they are not the owners because no formal transfer has been made on the docket.

In regard to the counsel fee, it is sufficient to say that it was earned, and it was properly charged against the wards.

For the reasons thus given, it is now ordered and decreed that the decree of the court below be reversed, that the original report of the auditor be confirmed, that distribution be made accordingly, and the appellees pay the costs of this appeal.

(156 Pa. St. 217)

employed, and he was to receive one dollar per day for his work, and his board. After he had been at work for some time, he alleges that on one occasion, when Adams, the inspector and superintendent of the lumber company, was looking over the work being done by Avery's job, he had a conversation with him. He says he told Adams that he understood Avery was poor, and that he was afraid he might not get pay for his work if he kept working for him. To this statement, he says, Adams replied: "Keep on to work just as you have been to work. We will see you paid." He kept on at work with Avery and his men, and boarded with them, just as before. When the job was completed he settled with Avery, took his order on the lumber company for the balance due him on his work, presented the order to the lumber company, and was paid upon it the balance in the hands of the company due to Avery. He now sues the lumber company for the balance left due him upon the order, alleging that the conversation he had with Adams amounted to a hiring by the company, or an original undertaking to pay him for his work. Adams positively denies the conversation with Lewis on which he rests his right to recover, but the verdict must be taken as settling the question in favor of the plaintiff, so that our question is over its legal effect. Did · the words that are attributed to Adams make an original or a collateral undertaking? The accompanying facts are not involved in controversy. The plaintiff had been hired by

MANUF'G CO.

(Supreme Court of Pennsylvania. July 19,

1893.)

STATUTE OF FRAUDS-PROMISE TO ANSWER DEFAULT OF ANOTHER.

Plaintiff, having hired out to A., a jobber, under contract with a lumber company, and worked for some time, spoke to the company's agent, expressing doubt of A.'s ability to pay him his wages. The agent answered: "Keep on to work just as you have been to work. We will see you paid." When the job was finished, plaintiff settled with A., and took his order on the company for the balance due him. Held, that the agent's words did not import a hiring of plaintiff by the company, and were within the statute.

Appeal from court of common pleas, Luzerne county; Lynch, Judge.

Assumpit. Judgment for plaintiff. Defendant appeals. Reversed.

G. L. Halsey, for appellant. John M. Garman, for appellee.

WILLIAMS, J. The facts in this case raise a question under the statute of frauds and perjuries. The evidence shows that Avery was a jobber having a contract with the company defendant to peel and pile hemlock bark at an agreed price per cord. He employed and took with him into the woods several men to work upon his job. Levi N. Lewis, the plaintiff, was among the men so

and board. He had been at work for some time under this contract of hiring. He kept on at work in the same way, and boarding with Avery in the same manner, that he had been doing. He gave no notice to Avery that he had ceased to work for him and entered the employment of the lumber company. When the work was finished he did not go to the lumber company to settle, but to Avery. After settling with him he took his order on the company for the amount found to be still due him for his work. He presented this order to the company for payment, and received upon it the amount the company was willing to pay. Then he brought this suit for the amount remaining unpaid against the company, alleging a hiring by Adams by virtue of the conversation already stated. Now, if the language attributed to Adams imports an undertaking, it is evident, in view of the circumstances referred to and the conduct or Lewis, that he understood the undertaking was to be responsible for the payment of his wages by Avery. The words employed import nothing more. "Keep on to work just as you have been to work, and we will see you paid. If you keep on at work for Avery just as you have been at work, we will be responsible for his promise to pay you." This was

a collateral undertaking. It was an agree

ment to be liable for the debt or default of another. The statute provides that "no action shall be brought whereby to charge the defendant on any special promise to answer for the debt or default of another unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or some other person by him authorized." This action is not brought for wages on an original contract of hiring, but for a balance due upon the plaintiff's contract with Avery. Putting it in the strongest light for the plaintiff that the facts and alleged contract will bear, it amounts to this: Avery had hired the plaintiff, boarded him, and paid him within about $25 of the total due him. Adams had promised that the company would see him paid. To the extent of Avery's default the plain. tiff now seeks to hold the company for Avery's debt. If Avery had not made default, the lumber company could, under no circumstances, have been made liable to the plaintiff. Because he has made default this suit is brought upon a promise to be liable for such default. It is not easy to see how a case could be imagined that would fall more clearly under the statute than the one now before us. The judgment for this reason must be reversed.

(156 Pa. St. 156)

MAHAFFEY v. FERGUSON. (Supreme Court of Pennsylvania. July 19, 1893.)

SALE OF TIMBER LAND-REPRESENTATIONS-WARRANTY-DECEIT-DISAFFIRMANCE OF PURCHASE.

1. Where, at the time set for the completion of a sale of timber land, the purchaser, whose agents had, together with plaintiff's agent, been over the land, refuses to do so until further examination, because of a suspicion that a wrong boundary had been pointed out, a statement by the vendor that if that was all the trouble he could fix it, and that his agent could go over the land again, and whatever the agent should show or represent he would stand for all damages, does not show that any warranty was intended of the amount of timber on the lands within the true boundaries.

2. Statements by the vendor's agent, while going over the lands on several occasions with the agents of the purchaser, among whom were experts, as to there being a large amount of timber thereon, do not constitute a warranty as to the amount.

3. As a purchaser must disaffirm his purchase at once, if at all, on discovering a fraud, if the parties can then be restored to their original position, an assumption in a charge on the right of defendant to set off against the bond given for the purchase price of certain land that so much had been done when the fraud was discovered that the original position of the parties could not be restored, though the evidence as to this was conflicting, is error. Appeal from court of common pleas, Lycoming county; E. R. Ikeler, Judge.

David T. Mahaffey obtained judgment against P. J. Ferguson on a bond given for the purchase price. On defendant's petition showing fraud in the sale the judgment was

opened, and there was a verdict and judgment for defendant. Plaintiff appeals. Reversed.

B. S. Bentley, C. La Rue Munson, and Addison Candor, for appellant. Henry C. Parsons, S. G. M. Hollopeter, and A. F. Ryon, for appellee.

THOMPSON, J. On May 11, 1886, the appellant, being the owner of seven tracts of timber land containing about 2,800 acres, entered into an agreement with the appellee for their sale for the sum of $10,900. Before this agreement was made the agents of the appellee, with the agent of the appellant, visited on several occasions the lands for the purpose of examining them with a view to their purchase, for the prop timber upon them. The result of these examinations was this agreement for their purchase. On June 4, 1886, a meeting took place at Lock Haven for the purpose of consummating the sale by the execution of the deed and the bonds and mortgage to secure the deferred payments. Previous to

this meeting, appellee's agents received information that led them to be suspicious about the representations made by appellant's agent as to the boundary line of the tracts, and declined to proceed with the transaction until further examination. Accordingly the agents of both parties made a visit for the purpose of examining the lands, and after this visit the appellee, through his agents, concluded to close the purchase. Upon June 14, 1886, accordingly, the appellant executed a deed for the land, and the appellee three judgment bonds and a mortgage to secure the same for three deferred payments of $2,030 each. The appellee went into possession and proceeded to cut the timber from the lands, and has continued to do So. The appellee paid the first two deferred payments as they became due, but refused to pay the third, in consequence of which the appellant entered judgment upon the bond given for it, and issued execution. The appellee then filed his petition alleging that the agent of the appellant had induced him to purchase the lands by pointing out certain lands as the true boundary line of them, that such lines were not the true boundary lines, but were outside of the lands, and that the lands embraced between them and the true lines contained the most valuable prop timber, which induced him to purchase; that in pointing out these false lines the agent of appellant perpetrated upon appellee "a premeditated, willful, and malicious fraud." He claimed "that by reason of the premeditated, willful, and malicious fraud aforesaid he suffered damage to the amount of $3,000, and prayed for equitable relief." Upon this application the judgment was opened and issue framed. This issue was to determine whether there was a fraud perpetrated by the appellant through the representations made by his agent as to the

lines of the land, and, if so, the amount of damage done to appellee to be a set-off against the claim of appellant. This issue, under the petition, was as to the fraudulent and malicious representations in regard to the boundary lines, and related to nothing else. Its purpose was to satisfy the conscience of the chancellor as to whether a fraud in this regard had been perpetrated upon appellee when he made the purchase. It appears by the proofs that there were misrepresentations as to these lines, by reason of which appellee failed to get about 160 acres of valuable prop timber land, which were pointed out as within the lines of his purchase. It is clear that the appellee is entitled to set-off to the extent of the damage thus done by such misrepresentations; but on the trial the appellee claimed as a set-off additional damages by reason of the false and fraudulent misrepresentations as to the amount of prop timber upon the western tracts purchased by him. As the set-off is practically in the nature of an action on the case for deceit, the appellee is entitled to such damages as result from the deceit or fraud effected by the false and fraudulent misrepresentations of appellant through his agent. The learned trial judge, in his charge, in addition to the question of fraud and deceit, submitted to the jury one as to a warranty of the amount of the timber upon these western tracts. He said: "If you believe from the evidence that Mahaffey (appellant) warranted to the Bittings, or the defendant, Ferguson, at the meeting on June 4, 1886, that the facts would be as Marsh would state them, and that Marsh did state to the Bittings that the lines and timber over the whole tract were the same as he had formerly represented them to be on former occasions; that the Bittings were not bound to use further efforts, care, or caution in examining and ascertaining the truth, but had a right to rely upon the representations of Marsh without looking further. If he made such warranties to Ferguson it would entitle him (Ferguson) to recover damages." Prior to the meeting on June 4, 1886, the appellee's agents had gone to the lands for their examination, and were satisfied with the result of the same, but at the date of the meeting, because of a suspicion suggested as to Marsh, a doubt arose as to the boundary lines of these lands. Charles Bitting testified that appellant "said if that was all the trouble he could fix it up satisfactorily, and he authorized Marsh to go over them again, and examine it carefully, and whatever Marsh would show or represent he would stand for all damages." There is no evidence of any warranty made June 4, 1886, as to these western tracts. The only question, then, arising was in regard to the lines; and, if it be true that appellant had authorized Marsh to go upon the tract, he did so for the purpose of pointing out their boundary

lines, and nothing more. Several trips were made to them by the appellee's agents. They had their eyes open, and their understandings were doubtless upon the alert. The lands were pointed out to them; they saw them, and they were satisfied with them, as to the character and extent of the prop timber upon them. Thus, on June 4th, no warranty was intended or contemplated as to these western tracts, and the only doubt was as to the lines pointed out. There is no evidence of any warranty made on June 4th, and, as there was none, it was error to submit it to the jury. There was no warranty as to the amount of timber on these tracts made on that day, and none prior thereto. Appellee's agents were looking for prop timber, and met Marsh, who said to them that he had these lands belonging to appellant for sale. He went with them in April, 1886, upon an adjoining tract, and pointed them out to them. He said: "Here is a nice lot of prop timber upon James W., Charles McMackin, and George tract." "All you see there is prop timber-yellow and jack pine." A week later these agents, with an expert, J. R. Thorn, went with Marsh to visit them for the purpose of further examination. Marsh again pointed out the lines, and said: "There was a nice lot of prop timber on them tracts. That was all yellow and jack timber that we could see from the front." Shortly after this Charles Bitting, Ross Thorn, and Marsh went again to look at these lands, and Marsh pointed out the lines; and subsequently, after June 4th, these agents, with Colbert, an expert, and Marsh, went again to examine them, and Marsh said there was considerable timber upon those tracts. Bitting himself testified that "we could see there was green timber on these tracts, and he said they were yellow and jack pine." On this occasion they did not continue their examination, on account of rain. The appellee dealt with the appellant at arm's length, and the opportunity to investigate was open to his agents. If their examination was incomplete, it was their error. If they chose to rely upon an imperfect investigation because of rain, it was their mistake. If, before the completion of the sale, they were advised as to the tricky character of appellant's agent, and, with their suspicions thus aroused, they chose not to investigate fully, it was their fault. The repeated examinations, the employment of experts, the suspicions, the refusal to complete the sale because of the lines, show clearly there was no warranty made or intended, and that the parties dealt with each other with their eyes open, and at arm's length; and representations made under these circumstances did not constitute a warranty.

In Veasey v. Doton, 3 Allen, 380, it is said: "The plaintiff had no right to rely on the representation of value as a fact, nor to place any confidence or trust in it. Such