separate trains, the plaintiff and other | boys, employed by defendant company. were engaged on the top of the loaded cars, picking out the slate. While plaintiff was thus at work, in company with an older lad, on the second car from the rear of one of the sections, another car came down the track, struck the cars in front, and suddenly drove them forward. When the collision occurred, the boys were in the stooping position required by their work, and plaintiff, losing his balance, caught hold of his companion, but, being unable to retain his position, fell between the cars and sustained the injuries for which, on attaining his majority, he brought this suit. | ant, and therefore the plaintiff cannot recover. For reasons already suggested, this point was rightly refused. It would have been grave error to have done otherwise. The other is the refusal to charge as requested in defendant's second point, viz.: "Under all the evidence, the verdict must be for the defendant." For same reasons there was no error in refusing this point. It could not have been affirmed without wholly ignoring the evidence tending to prove that the defendant company was negligent in the performance of the duty which, in the circumstances disclosed by the testimony, it owed to the plaintiff. As to the duty referred to, the instructions of the learned judge were full and adequate. Among other things, he said, in his general charge: "There is another duty which the employer owes to a child or infant, and that is to inform him of the dangers connected with the services in which he is employed. If that information, taken in connection with what the employe must know from his personal and constant observation, is sufficient to enable him to understand clearly the dangers to which he is exposed, then that duty is discharged on the part of the employer.' After referring to the evidence, as to the warning alleged to have been given to plaintiff by defendant company, the learned judge said to the jury it was "of such a character that it would be necessary to leave it to you to determine whether he was sufficiently warned of the danger of the employment in which he was engaged. Again, in affirming plaintiff's second point,-requesting him to charge: "It is negligence for which the employer is re 99 It was claimed that said injuries were the result of defendant company's negli gence, in these particulars: (1) In placing him in a position so hazardous; (2) in not cautioning him or explaining to him the dangers incident to his employment; and (3) in not providing men or means to control the cars in their descent from the chutes to the point where the trains were made up. As remarked by the learned trial judge, there was no question of contributory negligence in the case. The only questions were the duty which the defendant company, in the circumstances, owed to the plaintiff, and whether it neglected to perform that duty, to his personal injury and damage, etc. It is not our purpose to either review or summarize the testimony bearing on these questions. It is sufficient to say that it tended to sustain the allegations of negligence. As described by some of the witnesses, the employment was a very dangerous one for boys of plaintiff's age, and was so known to be to his employer. One of the wit-sponsible to employ and place in a baznesses, Alanson Beard, testified that shortly before plaintiff was injured, Mr. Fitch, defendant company's superintendent of the work, sent for him, "and he told me to go down and take charge of the boys that were picking slate; and I told him that I didn't think it was a fit place for the boys, and he said, 'Never mind, you go right along.'" When asked if there was anything said about the age of the boys, he answered: "No. He said nothing to me; only told me to go right along. On behalf of defendant there was testimony tending to show that the boys were informed as to the danger incident to their employment, and cautioned to be careful, etc.; but, to some extent at least, that was denied. While, as is usual in such cases, there was some conflicting as well as rebutting testimony, the evidence was clearly sufficient to carry the case to the jury on the questions of fact contended for by plaintiff. It was fairly submitted, in a clear and adequate charge, in which there appears to be no error of which the defendant can justly complain. The verdiet in plaintiff's favor necessarily implies that the jury was satisfied that defendant company's negligence was the proximate cause of plaintiff's injury. The assignments of error are two in number. One of these is the refusal to charge as requested in defendant's first point, viz.: "The evidence fails to show any negligence on the part of the defend ardous position a boy whose appearance indicates that he lacks the intelligence, prudence, and foresight which will enable him to comprehend the dangers of his employment," he said, "If the circumstances are such that the employer must perceive that the boy has not the capacity to realize the dangers to which he is exposed, he ought not to be put in that employment." These instructions, except so far as they may be involved in the refusal to affirm the general propositions submitted by defendant, are not complained of. They are in harmony with our cases, including Strawbridge v. Bradford, 128 Pa. St. 200, 18 Atl. Rep. 346; Rummel v. Dilworth, 131 Pa. St. 509, 19 Atl. Rep. 345, 346; Zurn v. Tetlow, 134 Pa. St. 213, 19 Atl. Rep. 504; Ross v. Walker, 139 Pa. St. 42, 21 Ati. Rep. 157, 159; Kehler v. Schwenk, 151 Pa. St. 505, 25 Atl. Rep. 130. In Rummel v. Dilworth it was held that in the case of young employes it is the duty of employers to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which in the course of their employment they should not be exposed. This principle is quoted with approbation by our Brother Green in Kehler v. Schwenk, supra. Guided by the instructions that were properly given as to the law applicable to the facts which the evidence tended to prove, it was the special province of the jury to ascertain the facts, and render Where the charge of the trial court, taken as a whole, correctly submits the case to the jury, and is not misleading, a verdict thereunder, supported by the evidence, will not be disturbed because some part of the charge, standing alone, is erroneous. Appeal from court of common pleas, Lackawanna county. Action by James Guinney against Michael fland and W. W. Van Dyke, trading as the Scranton Brewing Company, for personal injury caused by the negligence of defendants' servant. From a judgment entered on a verdict for plaintiff for $525, defendants appeal. Affirmed. S. B. Price and C. Comegys, for appellants. R. A. Zimmerman and J. E. Burr, for appellee. STERRETT, C. J. It is practically conceded that the injuries suffered by plaintiff were directly caused by the reckless neg. ligence of Thomas Carroll, who, at the time they were inflicted, was employed by the firm defendants in delivering beer, etc., to their customers. For that purpose be drove their beer wagon, by which plaintiff was struck and injured. It is also conceded that, if Carroll was acting within the general scope of bis said employment at the time plaintiff was injured, in consequence of his negligent driving, defendants would be liable; but it is alleged that, notwithstanding he was actually driving their wagon, he was then in the temporary service of Patrick Loftus, one of their customers, to whom he had, a few minutes before, delivered a barrel of porter. Carroll testified that, on the afternoon in question, he drove out from the brewery, in company with one of the defendants, with several barrels of ale and a barrel of porter; that, after delivering some of the ale, he went to Patrick Loftus' place, unloaded the barrel of porter, and undertook to tap it, as he was instructed to do for all his employers' customers. In the language of the witness, Loftus "had a wooden faucet, and I busted it in tapping the porter. It was very lively porter, very wild, and it was leaking; and he asked me if I would go to Lackawanna avenue, and bring him back a faucet, and he gave me a two-dollar bill, and I paid $1.75 for a brass faucet. * I drove pretty lively to Lackawanna avenue. I came down Penn avenue, and there was a couple of teams ahead of me, and I was in a burry to get the faucet and get back and put in this other faucet, and I went to pull across. My team got a little excited,-I * * In think they did,—and they went across the track; and my wagon striking Mr. Guinney, that is something I never seen, and don't believe it. I don't see how it could." The witness proceeded to say that after being informed of plaintiff's injury, etc., he drove on, got the faucet, returned to Loftus' place, and tapped the barrel of porter. This is the sort of loophole through which defendants endeavored to escape liability for the negligence of their driver. In their second point for charge, they requested the court to say: "If the jury believe that, at the time of the accident, Carroll was not acting within the scope of his employment, but was acting for some body else, the plaintiff is not entitled to recover." The court affirmed this point without any qualification. In their fourth point, which was also affirmed, they asked the court to charge "that it was not in the scope of Thomas Carroll's authority as a servant or employe of the defendants to drive the team of defendants about the streets of Scranton on errands for Patrick Loftus, and if the jury believe that, at the time of the accident, he was on such an errand, the plaintiff cannot recover in this case." answer to plaintiff's sixth point,-"Cnder all the evidence in this case, it is for the jury to say whether the defendants were guilty of negligence, "-the learned judge said: "That is to say, whether the defendants' driver was guilty of negligence, and whether he acted at the time within the scope of his employment. Again, in that part of his general charge recited in the third specification of error, he said: "We leave that as a matter of fact for you, gentlemen of the jury, to say whether or not his going for that faucet was not within the scope of his employment. He says he was obliged to tap ale or porter as he delivered it. That, he swears, was within the scope of his employment. Now, does it follow, as a natural deduction from that, that this porter was not tapped when tuis faucet broke, and that he started back, at the instance of Loftus, to procure another faucet. We submit that as a question of fact for you, gentlemen of the jury, whether he was within the legitimate scope of his employment. If you find he was uot, that is the end of the case." It is impossible to read the charge, and answers to points above referred to, without being convinced that the learned judge intended to submit, and did clearly submit, to the jury the question of Carroll's negligence, and also, especially, the question whether, at the time of plaintiff's injury, the former was acting within the scope of his employment as defendants' servant. This latter thought is so clearly and so frequently presented that the jury could not fail to understand that they were expected to consider and determine that question, under all the evidence before them. Standing alone, that part of the charge recited in the first specification might lead to a different conclusion, and therefore be erroneous; but, considered in connection with other parts of the charge, we think it is very manifest that the court did not intend to give the jury any binding in struction as to the question whether, at the time plaintiff was injured by Carroll's negligence, the latter was acting within the scope of his employment. In saying, "Nor, if you believe that testimony, that fixed their liability, because by that admission it shows that this man was in their employ, and by their further admission that he was acting within the scope of his employment," we cannot think the learned judge intended to do more than to convey the idea that defendants' admissions were evidence of and tended to fix their liability. If more than that was intended, it was a mistake, because the question whether Carroll was acting within the scope of his employment, etc., was clearly a question of fact for the jury. Brunner v. Telegraph Co., 151 Pa. St. 447, 25 Atl. Rep. 29; Johnson v. Armour, 18 Fed. Rep. 491; Dwinelle v. Railroad Co., 120 N. Y. 117, 24 N. E. Rep. 319. But, whatever impression may have been conveyed by the language quoted in the first specification, it is very evident that the charge, as a whole, could not have been misleading. The verdict, in favor of the plaintiff, is necessarily predicated of a finding of all essential questions of fact as claimed by him, and there was an abundance of evi dence to warrant the jury in doing so. The specifications of error do not require special notice. There is nothing in either of them that calls for a reversal of the judgment. Judgment affirmed.⚫ RICHARDSON v. MOYER. (Supreme Court of Pennsylvania. March 6, 1893.) CONTRACT-RESCISSION-QUESTION FOR JURY. In an action on a contract executed by defendant, the question whether it was the intention of the parties to abandon such contract when a subsequent paper signed by plaintiff was executed and delivered is a question of fact, for the jury, and its verdict is conclusive. Appeal from court of common pleas, Lackawanna county. Assumpsit by Sarah Richardson, now Mrs. Mary Jones, against Lazarus Moyer, to recover on a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed. Plaintiff became involved in a dispute with her son Harry Richardson over a sum of money which she alleged he owed her. Defendant, who had had dealings with the family, and to whom plaintiff was indebted for about $468, attempted to settle the dispute, and finally the son promised defendant that he would pay his mother $5 per month, but would sign no paper to that effect. Defendant then went to plaintiff, and told her that her son would not sign the way he wanted him to, but that he (plaintiff) would make him pay her. As plaintiff was unwilling to rely on her son to pay her, defendant said he would "go bail" for the son, and thereupon he delivered to her the following writing: "I hereby promise to pay Mrs. Sarah Richardson five dollars per month, commencing March 1st, 1885, for five years, if she lives that long, if ber son Harry Richardson fails to do so. Scranton, February 11th, 1885. [Signed] Lazarus Moyer." Later, on the same day, Mrs. Richardson made and delivered to Mr. Moyer a paper as follows, to wit: "In consideration that my son Harry Richardson promises to pay to Lazarus Moyer, of Philadelphia, for the balance of liquor bill, that I am indebted to him, amounting to $468, I hereby relinquish all my claim or claims I may have against him or his personal property or real estate, and declare that I have no claim against my son Harry, in no shape or form. Scranton. February 11th, 1885. [Signed] Sarah Richardson. Witness: J. R. Richardson." Mr. Moyer delivered this paper to Harry Richardson, who some time afterwards paid him, in various installments, the debt mentioned in this paper. For a time following this transaction, Harry Richardson paid to his mother various sums of money for her support; but at what intervals, or in what amounts, does not appear. Later she married a man by the name of Jones, after which, it seems, he paid her nothing. It is contended by defendant that, when the second paper was made, it was intended and agreed between all parties interested that the first paper should be surrendered and canceled. This was denied by Mrs. Richardson, and this denial was the principal issue of fact in the case. George D. Taylor, for appellant. PER CURIAM. The question whether it was the intention of the parties to aban don or surrender the paper signed by the defendant when the paper signed by the plaintiff was executed and delivered was necessarily a question of fact, and had to be submitted to the jury for their action. The learned court below very carefully aud correctly instructed the jury that, if the first contract was abandoned when the second one was made, the plaintiff could not recover. The credibility of the witnesses was for the jury, and it was for them to determine how the disputed fact was, upon all the testimony on both sides, and the jury was properly charged upon this subject. In addition to the conflicting testimony of the parties upon the main contention, there was the undisputed fact that the first contract remained in the possession of the plaintiff, and was produced and given in evidence by her on the trial, and there was the further fact that several payments were made on it, one of which, it was testified, was made by the defendant on the day the papers were given. We do not see how this chief contention in the cause could have been taken from the jury, and, they having found for the plaintiff, we must assume that the parties intended to, and did in fact, keep alive and maintain both contracts as parts of the same transaction. This state of the facts disposes of all the questions raised by the several assignments of error. Judgment affirmed. BOLAND v. SPITZ. (Supreme Court of Pennsylvania. March 6, 1893.) EXEMPTIONS-REFUSAL TO ALLOW-REMEDY. The claim of exemption is a species of personal defense, and, where the justice decides against the party making it in a garnishment proceeding, the judgment cannot be questioned by a rule to show cause why the money should not be paid to the party claiming exemptions. Appeal from court of common pleas, Lackawanna county. Action by Andrew Boland against George Spitz. From an order discharging a rule to show cause why certain money paid into court by defendant should not be drawn out by plaintiff, plaintiff appeals. Affirmed. James Mabon, for appellant. George D. Taylor, for appellee. PER CURIAM. In May 1892, judgment was rendered by Alderman De Long against Andrew Boland, the plaintiff in this case, for $94.26, and costs. Execution thereon having been returned “No goods, an execution attachment was issued May 26, 1892, and George Spitz, defendant in this case, was summoned as garnishee, and answered. At the bearing, June 2, 1892, Boland claimed the benefit of the exemption act, but his claim was ignored by the alderman, and judgment against said garnishee was entered for more than the amount of the original judgment. Prior to the hearing of the rule in this case, that judgment was never challenged by appeal, certiorari, or otherwise, and had therefore become as final and conclusive on all the parties thereto as the judgment of any court of competent jurisdiction. Lacock v. White, 19 Pa. St. 496. Boland's claim of exemption was a species of defense, personal to himself, in the execution attachment proceeding; and, the alderman baving decided against him, his only remedy was by appeal or certiorari. Having failed to avail himself of either, the judgment of the alderman became absolutely final and conclusive; and, remaining so at the hearing of the rule in this case, the learned court was clearly right in holding that its validity could not be questioned in this proceeding. The order of August 22, 1892, discharging the rule to show cause why the money paid into court should not be taken out by the plaintiff, is affirmed, with costs to be paid by him. WHITTON v. MILLIGAN. (Supreme Court of Pennsylvania. March 6, 1893.) DISTRESS FOR RENT-NOTICE-TIME OF SALE. Act March 21, 1772, allowing a landlord who has distrained for rent, to have the goods "after appraised, and such appraisement, * after six days' notice," to sell, etc., does not mean necessarily that notice must be postponed to a day subsequent to the appraise ment; and since, therefore, time generally is to be computed, under Act June 20, 1883, as excluding the first and including the last day of the prescribed period, and Sunday is omitted only when the last day falls thereon, a notice given on Tuesday, the day of the appraisement, is sufficient to authorize a sale on the following Monday. Appeal from court of common pleas, Philadelphia county. Action of trespass brought by Harold Whitton against William Milligan to recover damages for an illegal sale of personal property under a distraint for rent. There was a compulsory nonsuit, which the court in banc refused to set aside. Plaintiff has therefore appealed. Affirmed. Walter C. Rodman and Alex. Simpson, Jr., for appellant. John C. Milligan and Ellis Ames Ballard, for appellee. MCCOLLUM, J. This is an appeal from a refusal to take off a nonsuit in an action of trespass in which the plaintiff alleged, inter alia, that certain goods and chattels belonging to him had been unlawfully taken and gold by the defendant. It appears that the appellant was on the 31st of January, 1888, in possession of a room on the fourth floor of 1013 Chestnut street, Philadelphia, as a tenant of the appellee; that, having failed to pay the rent according to the terms of the lease, he was apprehensive of a distress, and, in the hopes of avoiding it, removed during the night a portion of the property subject to it. The appellee, being informed of this action of his tenant, distrained the balance of the property on the premises liable to seizure for the rent. The distress was made, and notice thereof given to the appellant, on the 1st, and the property sold on the 13th, of February. We find in the record of the proceedings on the trial in the court below an admission that "the plaintiff restricts his claim to the allegation that the sale was made sooner than allowed by law." In harmony with and corroboration of this admission, his counsel, in their argument in support of his appeal, say that a single question is raised, viz. was the sale made too early?" In considering this question we must assume, as the parties do in their presentment of the case, that the property was appraised and advertised for sale as soon after the distress and notice thereof as section 1 of the act of March 21, 1772,1 allows the appraisement to be made, and the public notice of sale to be given. This was on the 7th of February, which was the first day after the expiration of the five days within which 66 1 This act is as follows: "If the tenant or the owner of the goods distrained shall not, within five days next after such distress taken and notice thereof, ** * replevy the same, with sufficient security, to be given to the sheriff, according to law, then, and in such case, after such distress and notice aforesaid and expiration of the said five days, the person distraining shall and may * cause the goods and chattels so distrained to be appraised by two reputable freeholders, * * * and, after such appraisement, shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained," etc. the appellant had the right to replevy the property distrained. The appraisement and “six days' public notice" required by the statute are, in the order named, conditions precedent to a sale, but there is no express provision in it, or necessary impli cation from its language, which postpones the notice of sale to a day subsequent to the appraisement. A notice of the distress is valid if served on the day the distress is made. It sustains the same relation to the distress, in the order of procedure, as the notice of sale does to the appraisement. It is as necessary to a valid appraisement of the property distrained as a “six days' public notice" is to a lawful sale of it. In Davis v. Davis, 128 Pa. St. 100, 18 Atl. Rep. 514, the distress was made, and the notice thereof given, on the 22d of July, and the regularity of the proceedings in this respect was not questioned. There is no warrant nor just reason discoverable in the act of 1772 for bolding that, while the notice of distress so given is valid, the notice of sale given ou the day the appraisement is made is invalid. We think, therefore, that a distress with notice thereof on the 1st of February, an appraisement with a notice of sale on the 7th, to take place on the 13th, and a sale pursuant to such notice, wil! satisfy the statute regulating the proceedings in cases of distress for rent. It is claimed, however, by the appellant that, in ascertaining whether the statutory demand "for six days' public notice" of the sale has been complied with, the day of the appraisement and the day of sale must be excluded. Davis v. Davis, supra, is cited as authority for this construction, but we do not so regard it. In that case it was held, following Brisben v. Wilson, 60 Pa. St. 457, that the statute allowed the tenant five full days "next after the distress and notice thereof" in which to replevy his property; and, further, that, as the fifth day fell on Sunday, he had all of the succeeding day in which to exercise this right; and, as the time appointed by the statute was "after the expiration of the said five days," such appraisement was invalid if made during that period. In this case the appraisement is conceded to be regular, and the question is whether a notice given on Tuesday, the day of the appraisement, is sufficient to authorize a sale on the following Monday. It clearly is if, in computing the time allowed by the words of the statute, to wit, “after six days' public notice," the day on which the notice is given is excluded, and the day of sale is included. The intervening Sunday has no effect on the count, because it did not fall on the last day of the period. We think this case, in respect to the notice of sale, is governed by the act of June 20, 1883, (P. L. 136.) The mistake in the date of the notice cannot, under the appellant's own showing, have any influence in the decision of the question raised. The specifications are overruled. Judgment affirmed. This act provides that time is to be computed so as to exclude the first and include the last day of any prescribed period, and that Sunday is to be omitted from the calculation only when the last day falls thereon. In re BAILEY'S ESTATE. Appeal of MATLACK et al. (Supreme Court of Pennsylvania. March 6, 1833.) WILLS-LEGACY TO DEBTOR- RIGHT OF SET OFF. A legatee's indebtedness to the estate may be set off against the legacy, unless it clearly appears that this was not intended by the testator. Appeal from orphans' court, Chester County: Hemphill, Judge. M. H. Matlack & Co., creditors of Ebenezer Worth, seek to attach a legacy bequeathed to the latter under the will of Richard B. Bailey, deceased. From a decree declaring the legacy beyond the reach of attachment, the creditors appeal. Affirmed. R. Jones Monaghan and J. Frank E. Hause, for appellants. Chas. H. Pennypacker, Warren W. Hole, and Butler & Windle, for appellees. STERRETT, C. J. 66 This contention arose in the distribution of $79,393.03, proceeds of the personal estate of Richard B. Bailey, deceased, who, by his last will, made August 16, 1890, four days before his death, bequeathed to Ebenezer Worth nine thousand dollars, to be held, (in trust:) pay the interest to him yearly. At his death, pay this to Marshalton, West Bradford Meeting." At the time said will was executed, and also when it took effect, the legatee's indebtedness to the testator, after crediting net proceeds of the sheriff's sale of mortgaged premises, was $11,322.84. Since the testator's decease, his executors were required to pay $3,681.96, for which he was liable as surety for said legatee on his bond as guardian of Jessie A. Phipps. Thus, legatee's indebtedness to the estate at time of distribution was over $15,000, a sum so largely in excess of the bequest that the interest payable to him annually under the will was insufficient to pay even the interest on his indebtedness to the estate. The question was whether that indebtedness could be set off against the legacy. If it could, there was, of course, nothing due or to become due and payable out of the fund either to the legatee himself or to the appellants, his attaching creditors. The learned auditor held that both items of legatee's indebtedness to the estate were proper matters of set-off against the legacy, and distributed the fund accordingly. The orphans' court, being of same opinion, confirmed his report, and made the decree complained of, excluding the legatee and bis attaching creditors from any participation in the fund. In this we think there was no error. The general rule is that a legacy by a creditor to his debtor does not operate as a release or extinguishment of the debt, unless it clearly appears to have been the intention of the testator that it should so operate. 13 Amer. & Eng. Enc. Law, 80, and cases there cited; 2 Story, Eq. Jur. § 1123; Rop. Leg. (2d Amer. Ed.) 1064; Bowen v. Evans, 70 Iowa, 368, 30 N. W. Rep. 639. The intention referred to may be gathered |