thereto.' See Murphy v. Morton, 139 Pa. St. 345, 20 Atl. Rep. 1049, and Moors v. Carter, 146 Pa. St. 492, 23 Atl. Rep. 243. There is, therefore, a clear difference between the two cases. It must be said, however, that Dersheimer v. Maloney is not only on the border line, but that, if read in the light of other and later cases, it is on the wrong side of the line, and is virtually overruled. The whole subject has been discussed, and the decisions authoritatively reviewed, in Nice v. Walker,❘ (Pa. Sup.) 25 Atl. Rep. 1065, in an opinion filed since the present case was argued, and intended to settle finally the questions involved.

We have not considered the effect of the supplementary clause at the end of the contract, after the first signatures. Should the jury find that it was added after the plaintiffs had commenced the delivery of materials, then, under the rule of Willey v. Topping and Cook v. Murphy, supra, it will drop out of the case. All we decide at present is that without this clause there is nothing on the face of the contract to prevent a subcontractor from filing a lien. Judgment reversed, and venire de novo awarded.

BARRE v. READING CITY PASS. RY. CO. (Supreme Court of Pennsylvania. March 13, 1893.)

LIABILITY OF STREET-CAR COMPANY-NEGLIGENCE OF DRIVER-EJECTION OF TRESPASSER.

1. The evidence in an action for damages showed that plaintiff, a girl between 11 and 12 years old, jumped on the front platform of a street car of defendant, and that while holding the grab handles the driver, after whipping up his horses, hit her on the hands, and, failing to loosen her hold, violently pushed her off the step, and that she fell under the car and was run over. Held, that the court rightly charged that, if the injury occurred in that way, defendant was liable.

2. Even if plaintiff was a trespasser, the driver was not justified in removing her from the car with such disregard of her personal safety; but plaintiff's youth exempted her from the charge of being a trespasser," in the legal signification of the word.

3. It was proper to reject testimony by a companion of plaintiff as to what she thought the driver was going to do to plaintiff when she jumped on the lower step of the platform.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Elizabeth Barre, by her next friend, Henry Swartz, against the Reading City Passenger Railway Company, to recover damages for personal injuries. From a judgment entered on a verdict for $4.000 in favor of plaintiff, defendant appeals. Affirmed.

Plaintiff, then between 11 and 12 years of age, was run over by a car on defendant's railway, receiving an injury which necessitated the amputation of a limb. She instituted this suit against the railway company, and upon the trial she and two companions-Sallie Hause, at the time of the accident aged 11, and Sallie Potter, aged between 11 and 12-testified, in substance, that they were all coming from school; that the plaintiff got upon

the front platform of the car while it was in motion, having bold of the two hand rails; that the driver saw her; that be whipped his horses, making them go at a fast rate, then put down his whip, wrapped the lines about the brake handle, beat the plaintiff upon the hands to make her let go, and finally pushed her off the car, so that she fell under it, and was run over. For the purpose of contradicting this testimony, defendant asked Madeira, the driver, as to whether “the car was going at a slower or a faster rate of speed than usual," to which he answered as follows: "About half as fast as some places. I tell you how it is. Where it is nice and level" At this point the plaintiff's counsel interrupted the witness, while the defendant's counsel asked that the witness be permitted to go on with his answer. The court refused to permit the witness to proceed. The defendant excepted to this ruling, which forms the basis of the second specification of error. Sallie Potter, one of the little girls, having testified that, after the plaintiff had got on the car, she and Sallie Hause, the other little girl, "ran along even with the car," "looking at the driver all the time," "to see what he was going to do," and that they “expected that, Lizzie having jumped on, he," the driver, “would do something." It was proposed to ask her on cross-examination what she had thought the driver would do. The court disallowed the question, which is the basis of the first specification of error.

Chas. H. Schaeffer, H. A. Muhlenberg, and Cyrus G. Derr, for appellants. J. H. Jacobs and H. P. Keiser, for appellee.

PER CURIAM. This case involved questions of fact upon which plaintiff's right to recover depended. Those questions were fairly submitted to the jury in a clear and comprehensive charge, to which no excep tion appears to have been taken. By necessary implication the verdict establishes the fact that the severe injury sustained by plaintiff under the wheels of defendant company's car resulted solely from the negligence of the driver in rudely forcing her from the front platform of the car while it was in motion. The evidence tended to show that plaintiff jumped upon the lower step of the front platform of the then slowly moving car. While she was maintaining herself in that position by holding the grab handles, the driver, after whipping up his horses, hit her on the hands. Failing to loosen her hold in that way, he rudely and violently thrust her off the step, and, falling under the car, she was run over. The learned trial judge rightly instructed the jury that, if the injury occurred in that way, the company was liable; and, in view of the verdict in plaintiff's favor, the presumption is that they did so find.

Assuming as a fact defendant's allegation that plaintiff was a trespasser, that would not justify the driver in removing her from the rapidly moving car so forcibly and with such utter disregard of her personal safety. If the testimony was believed, as it must have been by the jury, -the driver was fully aware of plaintiff's

There was no error in rejecting the offer recited in the first specification. What the proposed witness may have "thought the driver was going to do to the plaintiff" when she jumped on the lower step of the platform could have no possible bearing on the driver's conduct in whipping up his horses, and then rudely and violently pushing her off. Whether she thought the driver would permit her to enter the car or would eject her therefrom was wholly irrelevant. The second specification is also without merit. In fact there was very little, if anything, in the case, on which to ground a defense. There is nothing in the record that would justify a reversal of the judgment. Judgment affirmed.

ASSUMPSIT-EVIDENCE-COMPETENCY.

Decedent, in her lifetime, received conveyance of a life estate in land, remainder to vest in her two sons, "their heirs and assigns, forever; they, however, to pay unto the other heirs of" decedent $800, "each of the said sons to pay as a part or portion of the said $800 as she shall in writing direct," etc. Held, in an action by "the other heirs" of decedent against one of the sons to recover the portion he was directed to pay, that the deed to decedent, and the instrument by which she subsequently directed payment, were competent and relevant.

Appeal from court of common pleas, Berks county: G. A. Endlich, Judge.

Assumpsit by Amanda Walb and another against Albert U. Snyder. Plaintiffs had judgment by direction of the court, and defendant appeals. Affirmed.

I. C. Becker and Ermentrout & Ruhl, for appellant. Rothermel Bros. and Richmoud L. Jones, for appellees.

PER CURIAM. This action of assumpsit was brought by two of the children of Mary Ann Snyder, nee Knabb, to recover $500 and interest, charged upon certain land conveyed to and now held by the defendant. The written instruments by which said charge is alleged to have been created, etc., were given in evidence. One of them is the deed of Henry H. Maurer to Mary Weil, (formerly the said Mary A. Snyder,) wife of Benjamin Weil, dated May 14, 1864, conveying to her, for and during the term of her natural life, certain premises, which said Weil and wife, by deed of even date, had conveyed to said Maurer. This deed, signed, sealed, and acknowledged by H. H. Maurer, Susan Maurer, his wife, and Benjamin Weil.

not be liable to the curtesy of the husband. After the death of the said Mary Weil, the said tract of land shall become vested in her two sons, A. Orlando Snyder and Albert Snyder, their heirs and assigns, forever; they, however, to pay unto the other heirs of the said Mary Weil the sum of eight hundred dollars upon her death, together, each of the said sons to pay as a part or portion of the said eight hundred dollars as she shall in writing direct, providing it shall be divided in two sums of five hundred and three hundred dollars; and their said portions, and the interest of the said two sons, shall be sub. ject to the payment of the said eight hundred dollars until the same shall be paid as aforesaid." The admission of this deed is the subject of complaint in the first specification, but we are unable to see wherein it was incompetent or irrelevant.

Again, the plaintiffs put in evidence the deed of said Mary Weil, dated March 1, 1866, for the purpose of showing that her order or direction, above provided for, was made. In that instrument she designates the payment of $500 shall be made by Albert Snyder, and charges that sum on his portion of the property. This evidence was objected to, and constitutes the second specification of error. We think it was clearly competent for the purpose for which it was offered, and the specification is not sustained. All the testimony consisted of records and written instruments, including those above referred to. They were, of course, for the construction of the court. In construing them as he did, and in directing a verdict in favor of the plaintiffs for the $500, and interest, upon which the judgment de terris was entered, we think the learned judge committed no error. There is nothing in either of the specifications that would justify either a reversal or modification of the judgment. Judgment affirmed.

WALB et al. v. DAILEY. (Supreme Court of Pennsylvania. March 13, 1893.)

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Assumpsit by Amanda Walb and another against Mary F. Dailey. Plaintiffs had judgment by direction of the court, and defendant appeals. Affirmed.

I. C. Becker and Ermentrout & Ruhl, for appellant. Rothermel Bros. and Richmond L. Jones, for appellees.

PER CURIAM. The facts in this case are similar to those in Walb v. Snyder, (July term, 1892,) ubi supra, which has just been disposed of, except that the defendant, Mary F. Dailey, holds the land, charged with the sum claimed by plaintiffs, as devisee of her husband, who, by sundry mesne conveyances and assurances, acquired title thereto from Orlando Snyder. The principles involved are the same in both cases. There was no error in admitting the evidence recited in the first and second specifications, nor was there any error in construing the papers admitted in evidence, or in

directing a verdict for the amount of plaintiff's claim, and afterwards entering judgment de terris thereon. Judgment affirmed.

HUBER et al. v. BAUM et al. (No. 24.) (Supreme Court of Pennsylvania. Feb. 6, 1893.) LANDLORD AND TENANT - FAILURE OF LANDLORD TO MAKE REPAIRS LIABILITY FOR RENT LEASE.

Where lessees take possession of a building, and occupy it for three or four years for the purpose for which it was leased, under a lease providing that they shall make, at their own expense, all necessary improvements and repairs, they are not relieved from liability for rent on removing therefrom before the expiration of the term, on the ground that it was totally unfit for such purpose, and to which use and purpose the lease restricted them, and that it became untenantable and dangerous, and the lessors refused to repair it.

Appeal from court of common pleas, Philadelphia county.

Action by Helen Huber and Lizzie S. Cromwell, executors and trustees under the will of Anna C. Huber, deceased, against George Baum and Charles Illingsworth to recover rent of leased premises. From an order discharging a rule for judg. ment for want of a sufficient affidavit of defense, plaintiffs appeal. Reversed.

Rowland Evans and R. L. Ashhurst, for appellants. Mr. Northrop, for appellees.

PAXSON, C. J. We think the plaintiffs were entitled to judgment for want of a sufficient affidavit of defense: The claim of the plaintiffs was for rent due under a lease under seal. The amount of the rent is not in controversy, but the defendants allege in their affidavit of defense that they had leased the premises for the purpose of a morocco manufactory, and that the said building "was totally unfit for the purpose for which the lessees rented the same, and to which use and purpose the lease restricted them; that it became untenantable and dangerous; that the lessees requested the lessor to strengthen the building, so that they could conduct their business of morocco manufacturing therein: that, in compliance with this request, the lessor had the building examined by competent builders, and she informed this deponent on September 3, 1891, that it was not practicable to do anything in the way of strengthening the said building, owing to its age and dilapidation, and that any money spent in this direction would be simply thrown away, and that she had decided to do nothing in the matter. Acting on this information, and on the increasing danger of remaining on the premises from the bulging and cracking of the walls, and the impossibility of occupying it for the purpose limited by the lease, the lessees were compelled to vacate said building, to prevent probable loss of life." The plaintiffs took possession of their property under their lease, and occupied it as a morocco manufactory for some three or four years, and then vacated it during the term, for the reasons stated in their affidavit. They had full opportunity, for anything that appears, to exam

ine the property before they leased it, and judge for themselves as to its fitness for their business. It ought by this time to be understood that a landlord is not bound to make repairs to demised premises unless he covenants to do so. In this case there was not only no covenant on the part of the landlord to repair, but there was an express covenant on the part of the lessee to do so, in the following words: "And it is hereby expressly understood and agreed that the said lessee shall be bound to make, at his own cost and expense, all necessary improvements and repairs, and, in case of fire, shall be relieved from payment of rent during the period of rebuilding. Under these circumstances,

the defendants had no right to call upon the plaintiffs to repair the building. It was their own folly, if the fact be so, to lease a building that was in such a dilapidated condition as not to answer their purpose during the extent of the term. The order of the court below is reversed, and the record remitted, with directions to enter judgment for the plaintiffs, unless other sufficient cause be shown, as provided in the act of assembly.

HUBER et al. v. BAUM et al. (Supreme Court of Pennsylvania. Feb. 6, 1893.) Appeal from court of common pleas, Philadelphia county.

Action by Helen Huber and Lizzie S. Cromwell, executrices and trustees under the will of Anna C. Huber, deceased, against George Baum and Charles Illingsworth, to recover rent of leased premises. From a judgment for plaintiffs, defendants appeal. Affirmed.

Mr. Northrop, for appellants. Rowland Evans and R. L. Ashhurst, for appellees.

PAXSON, C. J. This was an action upon the same lease as in Huber v. Baum, ubi supra, (decided herewith,) but commenced in another court, and with a different result. In the case in hand the learned judge entered judgment against the defendants for want of a sufficient affidavit of defense. As we have decided in the other case that a refusal to enter such a judgment was error, it follows that the judgment in this case was right, and it is accordingly affirmed.

1. A marriage settlement provided that, in case the wife should separate from her husband without cause, then during any such separation as may occur after she shall have derived from her aunt, P., an accession of property yielding a certain sum per year, the trustees of the settlement should pay the husband a certain part of the income of said "presently acquired property," and, during any other period of such separation, should pay him a certain other part of the same. Such "presently acquired property" is defined in the contract to be "all the real and personal property whatsoever, whether in possession, reversion, remainder, or expectancy, which, immediately before" the marriage, the wife "shall be seised or possessed of, or entitled

prayer of the appellant's bill be granted as to these trustees.

The wills of George W. and James Page, respectively, contain a valid spendthrift trust, not differing essentially in phraseology. In each it is provided that the income directed to be paid to the sisters, niece, and nephew of the testator is to be for their sole and separate use and benefit, and not liable to execution, attachment, or sequestration for any debts or liabilities whatsoever. A spendthrift trust may be created as well for a woman as for a mau. Ashhurst's Appeal, 77 Pa. St. 464. We are of opinion that no portion of the property included in the foregoing trusts comes within the description of “present. ly acquired property," as set forth in the marriage settlement. It follows that the appellant has no claim either upon the corpus of the said trust estates or their product. Moreover, the trusts being lawful by the law of Pennsylvania, the property included in them is beyond the control of Mrs. Hughes-Hallett herself, excepting as is provided therein. Judgment was properly entered by the learned court below in favor of the defendants upon the demurrer. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

WOOD v. STANDARD MUT. LIVE-STOCK INS. CO. OF READING.

is the complainant, and on said day Peter W. Fisher was appointed receiver. On November 22, 1890, the court, on petition of one Memphis Harvel, a creditor, ordered and directed the receiver to lay an assessment of 15 per cent. upon all policies of insurance issued by the company and in force at the time the receiver was appointed. On July 27, 1891, a petition of policy holders was presented, setting forth, inter alia, that the receiver, Peter W. Fisher, was mismanaging the trust, and praying for his discharge. After answer filed by the receiver, the court, on October 5, 1891, discharged Mr. Fisher, and appointed B. Frank Dettra as his successor. On January 11, 1892, upon petition of said B. Frank Dettra, the court amplified the decree of May 11, 1891, directing the receiver to levy an assessment of 15 per cent, upon policies, by directing what percentage was to be levied to cover each particular loss. On May 13, 1892, policy holders again petitioned the court, setting forth, inter alia, that in a certain suit tried in the court of common pleas of Berks county, between the receiver of the company and George Kestner, the receiver testified that the liabilities of the company for losses were $25,000, and the total amount of insurance was $620,000, exclusive of $200,000 insurance illegally canceled by the directors of the company on March 4, 1889, which were liable to assessments, and that an assessment of 15 per cent. thereon amounts to $123,000, nearly five times the amount of the liabilities of the

1893.)

1. Where it does not clearly appear that an assessment ordered by the court of common pleas, on the members of a mutual fire insurance company, to pay losses and the expenses of a receivership, is grossly excessive, the decree ordering it will not be disturbed, since the determination of the amount of such assessment rests in the sound discretion of such court.

2. It is not error, in such case, to refuse to appoint a master to ascertain who are le gal claimants, and the aggregate amount of their claims; since the policy holders are not concluded by the decree ordering the assessment from defending on any ground peculiar to themselves, respectively, and other questions that may arise can be settled in the distribution of the fund.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Aaron B. Wood against the Standard Mutual Live-Stock Insurance Company of Reading, Pa., for the appointment of a receiver. On petition of Memphis Harvel, a creditor, decrees were entered ordering the receiver to make certain assessments on the members of the company to pay losses and expenses. Baer and Miller, policy holders, &ppeared, and petitioned the court to vacate the assessments, and, from an order denying their petition, Baer and Miller appeal. Affirmed.

The Standard Mutual Live-Stock Insurance Company of Reading, Pa., was adjudged insolvent on July 30, 1889, in a proceeding in equity wherein Aaron B. Wood

no steps to ascertain the validity of the alleged claims against the company; and praying that the decree of the court of January 11, 1892, directing an assessment of 15 per cent. upon policy holders be vacated and set aside, or modified so that the assessment ordered will be sufficient to pay only the legal and proper claims against the company, and that he be directed to levy an assessment upon the policies illegally canceled by the directors. The court refused to grant the prayer of the petitioners, except to order the receiver to assess the policies illegally canceled by the directors. Since then the receiver has been proceeding upon the theory that the decree of the court in the premises is final and conclusive, and that policy holders are concluded thereby from making any defense as to the illegality of the assessment. This appeal is taken from the decree of the court directing the receiver to levy and collect an assessment of 15 per cent.; which, it is contended, is unwarranted and illegal.

S. J. Strauss and Ermentrout & Ruhl, for appellants. Henry C. G. Reber and Cyrus G. Derr, for appellee.

PER CURIAM. In July, 1889, defendant company was declared insolvent, and a receiver was appointed. The matter was so proceeded in that, on May 11, 1891, the court, by its decree, directed the receiver to levy an assessment for the purpose of paying the company's creditors, and meeting expenses incident to the receivership. That order was subsequently mod