an inspector should be put on there, and that he would not claim for the bad bricks." The instruction was, in effect, that if the plaintiffs agreed with the committee for the appointment of an inspector not expressly clothed with power to bind them by his decision, and he, in disregard of his duty, threw out good bricks, they would not be bound by his action. The only question to be considered is whether this was correct.

The contract to pave the streets was between the defendants and the borough. The contract to furnish bricks was between the defendants and the plaintiffs. These contracts were distinct and independent, and did not together constitute a tripartite agreement, which gave the borough any right of action against the plaintiffs. The plaintiffs might have stood upon their contract rights, and refused to deal with any one but the party to whom they were responsible. They, however, did not do this. Upon complaints of the quality of the bricks they were furnishing made directly to them by the borough authorities, they visited Uniontown, and conferred with the street committee. The purpose of the conference was to reach a mutual understanding as to the subject of dispute. Each party had an interest in doing this. The borough would thus secure without dispute or litigation with its contractor the bricks for which it had stipulated. The plaintiffs, as indicated by the testimony, were moved by a desire not to have the reputation of their bricks injured by their rejection. And another motive to be gathered from the relation of the parties was the moral obligation, arising from the fact that the selection by the borough of the bricks to be used was based upon the based upon the samples which they had furnished. Whatever the interest or the motive, at this point these parties attempted the adjustment of the dispute between them concerning the quality of the materials which the defendants were required to buy of one and use for the other. If they agreed upon this, the defendants were relieved of responsibility with regard to it. If an inspector was appointed by agreement, it must be assumed that he was to represent both parties in making an inspection; otherwise the agreement would have been senseless. The committee was at liberty to inspect without the assent of any one. That was its right, and, as between the borough and the contractor, it had the power to determine finally what bricks should be used. An inspection in the interest of either party would have effected nothing, and the desired end-a settlement of the question as to what bricks should go into the pavementcould be reached only by an inspection by some one who represented both. There was nothing else to agree about. If, then, the inspector represented the plaintiffs as well as the borough, his inspection, however unjust or unwise, determined what bricks the defendants were to use. If the parties, by v.30A.no.21-66

agreement, had jointly made an inspection, the committee would have been estopped from afterwards asserting that the bricks selected as fit for use were in fact unfit; and the plaintiffs likewise would have estopped themselves from making any claim for bricks rejected, for the reason that they had by their own act determined what were good ard what were bad, and led the defendants to use the one and reject the other. The act of their joint agent would have the same effect, and as fully as if he had been expressly clothed with power to bind them by his decision. While the dispute between the committee and the plaintiffs lasted, the defendants were left to their own judgment. They were bound by their contracts, on the one hand, to use the plaintiffs' bricks, and, on the other, to use only such bricks as were satisfactory to the committee, and the responsibility of selection rested with them. When, however, these parties agreed as to the quality of the bricks, a new course was marked out for the defendants. Before, the test to which they were held was the use of a No. 1 brick. Now, it became a brick which had passed inspection, and they were not required to use any other.

The case was carefully and ably tried by the learned judge, and the charge and answers to points clearly and fully presented the issue involved. We find no error in the record, except in the portion of the charge which we have considered. Testimony of what had occurred between the plaintiffs and the borough authorities before the awarding of the contract was admitted, but with a limitation to show the quality of the bricks to be furnished. Holding the opinion we have expressed as to the effect of an agreement to appoint an inspector, we think that upon a retrial this testimony should be admitted in full, as bearing upon that question. The first assignment of error is sustained, the judgment is reversed, and a venire de novo awarded.

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1. A lease provided that the tenant should make all repairs, and that, if he should occupy the premises after the term expired, without a new agreement, "the amount of rent, terms of payment, and other covenants and agreements shall be continued as applicable to such further terms as the said parties may continue to occupy the relation of landlord and tenant.' The tenant held over a year after the term expired, without making a new agreement or paying any rent, and the landlord distrained for rent under such lease. Held, that in replevin by the tenant for the property distrained, it was proper to refuse offers by him to prove that complaints were made by him in regard to the condition of the premises; that repairs were needed and demanded; and that negotiations were pending between the parties for a new lease.

2. It was not error, in such case, to direct a verdict for defendant in the absence of any evidence that such tenant had any valid defense to the claim for a year's rent in arrears.

3. Nor was it error to charge that there was nothing shown to relieve plaintiff from paying the rent due under such lease, and that, when a man leases property for a certain time, and holds over, it is a renewal of the lease.

4. It was not error to charge that the defense set up was merely "that the landlord wanted more rent, and the tenant would not give it until there was some improvement made, Well, he had perfect liberty to go away if he did not like to stay, but, if he stayed, he stayed under the terms of the original lease, and he was, therefore, bound to pay the rent.'

Appeal from court of common pleas, Allegheny county.

Action of replevin by T. H. B. Patterson against W. G. Park and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The last four specifications of error are as follows: "(5) The court below erred in charging the jury as follows, viz.: 'Under the evidence in this case the defendants are entitled to your verdict, and you should certify in that the amount of rent due at $175. There is no controversy as to the amount of rent due under this lease.' (6) The court below erred in charging the jury as follows, viz.: "There is nothing shown in this case at all that would relieve the plaintiff from paying the amount of rent due under the first lease. Whenever a man has a lease for a property for a certain time, and undertakes to hold over afterwards, then it is a renewal of the lease.' (7) The court below erred in charging the jury as follows, viz.: "The defense set up, which I need not particularly refer to, is simply that the landlord wanted more rent, and more rent, and the tenant wouldn't give it until there was some improvement made. Well, he had perfect liberty to go away if he did not like to stay, but, if he stayed, he stayed under the terms of the original lease, and he was, therefore, bound to pay the rent.' (8) The court below erred in giving misleading instructions to the jury in its whole charge, which is erroneous as a whole as matter of law."

T. H. Baird Patterson, for appellant. R. B. Petty, for appellees.

PER CURIAM. As presented in plaintiff's paper book, the testimony and exhibits are so incomplete that it is impossible to properly understand the facts of this case without referring to the record, and copy of the original lease, etc., printed by defendants. With the aid of these it appears that plaintiff in this action of replevin leased from the then owner the premises described in the lease, in the condition they then were, for the term of one year from April 1, 1891, for the annual rent of $175, payable quarterly in advance. It was provided in the lease that all repairs should be made by the tenant, and also that, if

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he should "continue to occupy the said tenement after the expiration of the term, without entering into any other or further agreement, then the amount of rent, terms of payment, and other covenants and agreements * shall be continued as applicable to such further terms as the said parties may continue to occupy the relation of landlord and tenant." The rent for the year specified in the lease appears to have been paid, but at the expiration of the term the lessee held over, and continued to occupy the demised premises, "without entering into any other or further agreement," until four quarterly payments of rent became due and in arrear. Thereupon a landlord's warrant was issued, and by virtue thereof the goods afterwards replevied and delivered to the plaintiff were distrained. Plaintiff's pleas to the avowry, etc., were that he "did not hold the premises as tenant of the defendants, as alleged, and that no part of the said supposed rent was in arrear," etc. To which was added, by leave of court, "that the premises were in an untenantable condition." There was no controversy as to the fact that plaintiff continued to occupy the demised premises from. and after expiration of the term named in the original lease until after the 1st of the following January, when, according to the provision above quoted, another year's rent had become due. It was not even alleged that any part of this rent was paid; nor was there any proof, or offer to prove, that a new lease of the premises was ever executed, or finally agreed upon. On the contrary, it appeared that a new lease was prepared and submitted to plaintiff for execution, but he refused to sign it unless the landlord would first comply with his demand, and make certain repairs. In short, it clearly appeared that plaintiff held over, and continued to occupy the premises until the year's rent distrained for became due and in arrear according to the provisions of the lease for preceding year. There is no merit in either of the specifications relating to the rejected offers to prove that complaints were made in regard to the condition of the premises; that repairs were needed and demanded; that negotiations for a new lease were pending between the parties, etc. Without being followed by proof of change in terms of the lease, these and other matters relied on by plaintiff were irrelevant. There was no proof, no offer to prove, that a new lease was executed, or even finally agreed upon. In view of the undisputed facts as to plaintiff's holding over without any change of terms, and in the absence of any evidence tending to prove that he had any valid defense to payment of the year's rent in arrear, or any part thereof, there was no error in charging as complained of in the last four specifications. Judgment affirmed.

& Co., obtained from his wife her note at three months, to her husband's order, for the balance, $1,200, and, again, her check for proceeds, to his order. She neither received nor expected to receive any of the money. Her part in the transaction was solely for the accommodation of her husband, which fact was well known to the plaintiffs.

On these facts the learned judge of the court below peremptorily instructed the jury to find a verdict for plaintiffs, saying: "I regard the evidence as only showing that this married lady, Mrs. Smith, did what she had a perfect right to do." The defendant appeals, arguing that under the proviso to the married persons' property act, of June 3, 1887. in force when the contract was made, the indorsement of the draft and the signature to the note were void.

The proviso referred to is this: "Provided, however, that nothing in this or the preceding section shall enable a married woman to become accommodation endorser, guarantor or surety for another." Although the act of 1887 was expressly repealed by that of June 8, 1893, this proviso, almost word for word, was incorporated in the later act. It was the expressed intent of both acts to enlarge the powers of married women to contract, and this court has sought to give full effect to this intent, in interpretation. While this primary Intent is not to be restricted by interpretation, plain restrictions are not to be enlarged by the same means. This act declared the married woman might bind herself by many contracts which theretofore she could not legally make, yet it expressly continued her disability to become an accommodation indorser, guarantor, or surety for another. This married woman, on the first draft, was, both in fact and in name, an accommodation indorser for another, her husband. It is admitted that if default had been made, and suit brought on this paper, there could have been no recovery. But it is argued that her situation is changed by the execution and delivery of the note for $1.200, of which, on its face, she is neither indorser, guarantor, nor surety. If there was nothing in the case but the note, the presumption would be that it was for a debt she could lawfully contract. Formerly, her capacity to contract was exceptional, and her disability general. Now, the disability is exceptional, and her capacity general. The burden is on her, when she seeks to avoid her contract, to bring it within one of the few exceptions. This she has sought to do in this case by proof of the facts already stated. Her liability is not determined alone by the form of the obligation. If the object was to evade the disability created by the statute, the fact, and not the form, will determine her liability. In Investment Co. v. Roop, 132 Pa. St. 496, 19 Atl. 278,-the case of a judgment note, signed by both husband and wife, to raise money to aid the husband in his business,-it was said: "If not given as surety for her husband, it was given upon his importunity, and

to aid him in his business,-one of the very perils from which the law ought to protect a married woman,"-and the judgment was stricken off. This case depended on the interpretation of this proviso. Take the facts here. The husband had a time draft; was pressed for money. He was refused a discount, without an indorser. The banker agrees to accept the wife, if she will draw a check for the proceeds, thus apparently giving her the benefit of the discount. Her husband importunes her, and she accedes. He, with the full knowledge of the banker, gets all the money. When the draft matures, the husband is able to pay but $600, leaving $1,200 to be provided for. Then, at the banker's request, the husband induces her to sign a note for the $1,200, and another check, in favor of her husband, for the proceeds, as if it were for her benefit. She receives not a single dollar from the beginning. She was accommodation indorser for the husband, on the draft, and accommodation drawer for him, on the note; and all the time with the full knowledge of-in fact, at the suggestion of-the plaintiffs. The act does not use the words, "accommodation drawer"; but, in substance, what is an accommodation drawer, but a surety for him to whom the paper is delivered, and for whose benefit it is made? "The undertaking in suretyship is immediate and direct, that the act shall be done. If not done, the surety becomes at once responsible." Reigart v. White, 52 Pa. St. 440. The debt here was that of the husband. As between him and the banker, he alone was bound to pay it. The wife gave her own obligation, by the terms of which she at once became responsible, and hence a surety for her husband's debt, or the debt of another. If the note, under the statute, had bound her, and she had been compelled to pay, she would have had a right of action against him, on the principle of her suretyship for him, and in no other right. The whole transaction was a transparent device adopted by the plaintiffs and the husband to evade an express statutory enactment; to create by form a liability where, by law, none in fact existed. As she received no benefit, as the plaintiff was in no way deceived, she was under neither moral nor legal obligation to pay, and there should have been no verdict against her. The judgment is reversed.