inconvenience by reason of the negligence of the city in not directing the opening, they therefore assessed the damages to it at $12,500, to be paid by the city. Exceptions dismissed, and report confirmed, whereupon this writ was taken.

W. H. Addicks and Charles F. Warwick, for plaintiff in error.

The railroad, having acquired the property after the first opening, took no title. The decree confirming the report of the viewers was an absolute taking of the street, upon which the owner became entitled to his damages by filing a petition within one year. No petition was filed in this case. Keene v. Bristol, 26 Pa. St. 46; Yost's Report, 17 Pa. St. 524; Pittsburgh v. Scott, 1 Pa. St. 309; Smedley v. Erwin, 51 Pa. St. 445; Hatermehl v. Dickerson, 8 Phila. 282; In re Sedgeley Ave., 88 Pa. St. 509; Tenbrooke v. Jahke, 77 Pa. St. 392.

David W. Sellers and Thomas Hart, for defendants in error.

The errors assigned apply to questions wholly arising on the effect of the evidence offered before the jury, and there is nothing to review. Spring Garden St., 4 Rawle, 192; In re Church St., 54 Pa. St. 353; In re Kensington & Oxford Turnpike Co., 97 Pa. St. 269.

PER CURIAM. On this certiorari we can look at the record only. No facts outside thereof can be considered. They are not properly before us. The inquest shows that the portion of Fifteenth street in question was never actually opened until after the commencement of these proceedings. It does not show that any other person or party was entitled to recover these damages. The question, therefore, was the extent of the damages sustained. They appear to have been duly assessed on correct principles. Judgment affirmed.

SPECK and another v. HETTINGER.1

(Supreme Court of Pennsylvania. May 17, 1886.)

1. LIFE INSURANCE-ASSIGNMENT JOINT RECEIPT-SEPARATE INTERESTS-IM

MATERIAL.

Where an assignment of a policy of insurance was made to certain parties jointly, and the money thereon received and receipted for by them jointly, the right of recovery not depending on how the assignment was obtained, but on their receipt, the fact that they held separate interests, acquired at different times and from different persons, was immaterial.

8. SAME-RECEIPT STATEMENTS AT THE TIME.

Statements made at the time of receiving money do not change the legal liability consequent upon the written receipt thereof.

Error to common pleas, Lebanon county.

This was an action, brought by Joseph Hettinger against John H. Speck and Daniel R. Speck, for money had and received by them jointly to plaintiff's use. On the trial, before MCPHERSON, J., the following

facts appeared:

The U. B. Mutual Aid Society of Pennsylvania issued a policy for $2,000 on the life of Catharine Hettinger, dated October 30, 1875, payable upon her

1Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

death to her husband, Joseph Hettinger. The husband, during the life-time of his wife, assigned the said policy to John H. Speck and Daniel R. Speck, the defendants below, neither of whom had an insurable interest in her life. After the death of the insured, the money was paid by the society to the defendants below by a check to their order, and they executed a receipt in full for the amount due them on said policy.

The defendants offered to prove by Daniel R. Speck that he held a certain interest under the assignment in the policy, and his brother another interest; that they held such interest separately and not jointly; that the interests they held were acquired at different times, and from different persons,-showing their interest to have been separate and not joint. The court rejected the offer, ruling that the plaintiff's right of action depends upon the reception of the money, and not upon the way in which defendants acquired title, under the assignment, to this policy. Exception. The defendants also offered to prove by Daniel R. Speck that, when the money was paid, he'informed the officer that he had his own interest in it, and that his brother had his own interest in it, and that he wished the check to himself to be a check for his interest, and a check given to his brother to be a check for his brother's interest; that the officer paying the money, on the ground of convenience to himself, persuaded them to take a joint check, not with a view of making a joint payment, but for his own convenience; and that it was stated to be for that purpose. The court overruled the offer, because it would not change the fact that the defendants did receive the money jointly. Exception. The court directed a verdict for the plaintiff. Verdict accordingly, and judgment thereon; whereupon the defendants took this writ, assigning for error the rejection of the testimony contained in above offers.

Josiah Funck & Son, Grant Weidman, and John Benson, for plaintiffs' in

error.

In a joint action there can be no recovery unless a joint liability is shown. Schoneman v. Fegley, 7 Pa. St. 438; Fawcett v. Fell, 77 Pa. St. 308; Schnader v. Schnader, 26 Pa. St. 384; Meason v. Kaine, 67 Pa. St. 135. The liability of the defendants, as joint or several, must depend entirely upon the agreement under which they received the money. The receipt and check, standing alone and unexplained, were evidence of a joint receipt of the money; but they may be explained. The court erred in receiving evidence of the acts done, and excluding the accompanying declarations of the parties. The declarations of the parties, and the agreement under which the receipt was given, were part of the res gesta, and should have been submitted to the jury. Steckel v. Desh, 2 Penny. 313; Devling v. Little, 26 Pa. St. 503; Potts v. Everhart, 26 Pa. St. 493; Woodwell v. Brown, 44 Pa. St. 121; Cattison v. Cattison, 22 Pa. St. 277.

Bassler Boyer, for defendant in error.

The consideration for the implied promise on which this suit was brought, being the illegal receipt by the defendants of this insurance money, was joint, and a suit against both was proper. Boggs v. Curtin, 10 Serg. & R. 211; Lee v. Gibson, 14 Serg. & R. 111; App v. Coryell, 3 Pen. & W. 494; Irwin v. Brown, 35 Pa. St. 332. Their liability sprang from the receipt of the money, and the only question here is, did the aid society pay the money to the defendants below jointly? If it did, then it was a joint receipt by them

of the money, and they are jointly liable. The receipt signed by both defendants shows this, the check confirms this, and the joint indorsement of both affirms this.

PER CURIAM. The assignment of the policy of insurance was made to the plaintiffs jointly. Jointly they received the money thereon, and they executed a joint receipt therefor. It matters not that, as between themselves, they held separate interests, acquired at different times and from different persons. The right of recovery against them does not depend on the way or manner in which they obtained the assignment of the policy, but on their subsequent receipt of the money. What they stated or desired at the time they received the money does not change their legal liability consequent of their joint receipt thereof. Judgment affirmed.

DEALEY and others v. PHILADELPHIA & R. R. Co.'

(Supreme Court of Pennsylvania. April 12, 1886.)

MASTER AND SERVANT-FELLOW-SERVANT-ENGINEER-STATION MASTER.

Where, by reason of the negligence of a station master in employ of a rail

: road in not delivering a telegram to the engineer of a passenger train having

the right of way, notifying him that a switch was open, by means of which he must cross from one track to another to get around a freight train on the same track, and cautioning him as to the rate of speed, the engine was thrown from the track at the switch and the engineer killed, held, that the injury was occasioned by the negligence of a co-employe, and no action could be maintained.2

Error to common pleas No. 4, Philadelphia county.

Case, by Jane Margaret Dealey, widow of James Dealey, deceased, and Francis Edward Dealey, Agnes Louisa Dealey, Charles Elmo Dealey, and John Jay Dealey, minor children of James Dealey, deceased, by their next friend and mother, Jane Margaret Dealey, against the Philadelphia & Reading Railroad Company, for damages for the death of said James Dealey. Decedent was an engineer in defendant's employ, and was in charge of a passenger train going north. The main track north was obstructed by a freight train, and the station master at North Wales sent to the station master, Bothwell, at Lansdale, a telegram, as follows: "Conductor 15: Approach cross-over switch above station carefully, and cross over on north-bound track to round No. 301. She is laying there." The telegram was received 14 minutes before the train, 15, of which decedent was engineer, arrived. Bothwell neglected to deliver the telegram until just as the train was starting, and then he gave it to a brakeman standing on the rear platform, who, after some delay, caused by a locked door, gave it to the conductor. Before he could communicate with Dealey, however, the train, going at the rate of 30 miles an hour, struck the switch, which was almost at right angles to the track, and therefore dangerous unless approached slowly. The en

1 Reported by Charles T. Cresswell, Esq., of the Philadelphia bar.

See note at end of case.

gine was overturned and Dealey killed. Judgment of nonsuit was entered against the plaintiffs, which the court refused to take off. Plaintiffs thereupon took this writ..

Frederick Carroll Brewster, Jr., for plaintiffs in error.

A master is bound to provide proper safeguards. Oak Bridge Coal Co. v. Reed, 5 Wkly. Notes Cas. 394; Railroad v. Agnew, 11 Wkly. Notes Cas. 394; Baker v. Railroad, 95 Pa. St. 211; Frazier v. Railroad, 33 Pa. St. 104; Johnson v. Bruner, 61 Pa. St. 58; Ardesco Oil Co. v. Gilson, 63 Pa. St. 146; Patterson v. Railroad, 76 Pa. St. 389; Caldwell v. Brown, 53 Pa. St. 453; Railroad & Coal Co. v. Decker, 84 Pa. St. 419. A fellow-servant must be in the same common employment. Coombs v. New Bedford Cordage Co., 102 Mass. 572; Lehigh Val. Coal Co. v. Jones, 86 Pa. St. 433; Ryan v. Railroad, 23 Pa. St. 384; Weger v. Pennsylvania R. R., 55 Pa. St. 461; Canal Co. v. Carroll, 89 Pa. St. 374; Canal & R. Co. v. Leslie, 16 Wkly. Note Cas. 321; The jury must determine the question of co-employment or agency. Railroad Co. v. Armstrong, 49 Pa. St. 186; Railroad Co. v. Chenewith, 52 Pa. St. 382; O'Donnell v. Railroad, 59 Pa. St. 239; Baird v. Pettit, 70 Pa. St. 482; Mullan v. Steam-ship Co., 78 Pa. St. 25; Hass v. Steam-ship Co., 88 Pa. St. 269.

Thomas Hart, Jr., for defendant in error.

There need be no parity of service to make fellow-servants. Lehigh Val. Coal Co. v. Jones, supra; Whart. Neg. § 229, note 3; Wood, Mast. & S. §' 425; National Tube-works v. Bedell, 96 Pa. St. 175; Keystone Bridge Co. v. Newberry, Id. 246; Northern Cent. Ry. Co. v. Husson, 101 Pa. St. 1; Camp-. bell v. Pennsylvania R. R., 2 Atl. Rep. 489. A scintilla of evidence is not to be submitted to the jury. Express Co. v. Wile, 64 Pa. St. 201; Railroad v. Schertle, 97 Pa. St. 450; Randall v. Baltimore & Ohio R. Co., 109 U. S. 478; S. C. 3 Sup. Ct. Rep. 322.

PER CURIAM. On the undisputed evidence this judgment is clearly, right. The negligence was that of a co-employe of the person killed.. It follows that no action therefor can be maintained by the plaintiffs. Judgment affirmed.

NOTE.

For a full discussion of the liability of the common master for an injury resulting to an employe by reason of the negligence of a fellow-employe or co-servant, see Keys v. Pennsylvania Co., (Pa.) 3 Atl. Rep. 15, and note, 16, 17.

Respecting who are fellow-servants or co-employes, see Conley v. City of Portland, (Me.) 3 Atl. Rep. 656, and note, 659; and Reese v. Biddle, (Pa.) 3 Atl. Rep. 813.

HORSTMAN and others v. ZIMMERMAN and another.1

(Supreme Court of Pennsylvania. May 3, 1886.)

PROMISSORY NOTE- BONA FIDE HOLDER-PATENT-RIGHT- NOTICE — VALUEMATURITY.

Where a promissory note was given in consideration of a sale to the makers of a right to use and sell, in certain counties, specified articles, claimed by the vendor to be patents, but on the face of which note the words "given for a patent-right" were not printed or written, it is necessary, to enable an indorsee to recover, to prove that he was a holder without notice and for value before maturity, which is a question of fact for the jury.2

'Reported by Charles T. Cresswell, Esq., of the Philadelphia bar. See note at end of case.

-Error to common pleas, Schuylkill county.

Assumpsit, by William Horstman & Sons against Zimmerman & Beecher, on two promissory notes, made by defendants to the National Ozone Preserving Company, and indorsed by payee to plaintiffs before maturity. The company sold defendants the right to use articles claimed to be patented by it, in Schuylkill county, in part consideration of which the two notes were given. The company was indebted to plaintiffs for goods bought, and turned the notes over in part payment, telling the plaintiffs that company's agent had made the sale, and obtained the notes. Plaintiffs testified that they had no knowledge that it was a sale of patent-rights. Defendants showed that plaintiffs had not credited the notes up to the account of the company, but that the account had been charged off to expense account, and that since the protest of the notes a due-bill had been given by the company for the whole amount of plaintiffs' claim. The court charged that if the plaintiffs knew the circumstances under which the notes had been obtained, and that the consid-eration had failed, the verdict should be for defendants; that the jury must ascertain whether the plaintiffs were holders without notice and for value before maturity; that if plaintiffs knew that the notes were for territorial right to a patent, that defendants were entitled to the same defenses as if the suit had been brought by the payee. Verdict for defendants, and judgment accordingly, whereupon plaintiffs took this writ. C. Lettle, J. R. Adams, and James Ryon, for plaintiffs in error.

A man is only bound to make inquiry where the circumstances excite the suspicion of a prudent man. Phelan v. Moss, 67 Pa. St. 59: Gerrard v. Hadden, 67 Pa. St. 82; Zimmerman v. Rote, 75 Pa. St. 188; Brown v. Reed, 79 Pa. St. 370; Moorehead v. Gilmore, 77 Pa. St. 124; Bardsley v. Delp, 88 Pa. St. 420; McSparran v. Neeley, 91 Pa. St. 17. Evidence of notice must be clear, to carry the question to the jury. Battles v. Laudenslager, 84 Pa. St. 446.

Wm. Wilhelm and John W. Ryon, for defendants in error.

The fact that the notes were payable to a company which did business in patented articles, which plaintiff knew, was sufficient to establish such knowledge. Weaver v. Frantz, 1 Penny. 153; Bowen v. Kemerer, 2 Pears. 250; Hunter v. Henninger, 37 Leg. Int. 412.

PER CURIAM. It is undoubted that the notes in question were given in consideration of a sale to the makers of a right to use and sell, in certain counties, specified articles claimed by the vendor to be patented. The words "given for a patent-right" were not printed or written on the face of the notes, as directed by the act of twelfth April, 1872. Purd. Dig. 1173. Under the facts shown, to enable the plaintiffs to recover, it was necessary for them to prove that they were holders without notice and for value before the notes matured. These were questions of fact, and were well submitted to the jury. Judgment affirmed.

NOTE.

A state statute providing that any person who may take any obligation in writing for which any patent-right, or right claimed to be a patent-right, shall form the whole or any part of the consideration, shall, before it is signed by the maker, insert in the body