Company obtained an order vacating the former ex parte order, and from this last vacating order an appeal was taken. The action of the lower court was affirmed. The appellate court says in its opinion that a judgment may be properly satisfied otherwise than by a payment in money, provided such payment is made and accepted in good faith. The court, however, found that the whole proceeding was a mere subterfuge, resorted to for the purpose of making a nominal compliance with the terms of the insurance contract.

ment of facts "that there has not been at any time, and is not now, any understanding or agreement between the Herbo-Phosa Company, the Mechanics' National Bank, or said Alfred S. and Arthur P. Johnson, or either of them, whereby the payment in full or in part of said notes, or renewal of them, or substituted obligations for them, by the Herbo-Phosa Company shall be contingent upon any happening whatever, or whereby, in any contingency, the Herbo-Phosa Company shall receive any rebate, discount, payment back, or credit on account of said transaction."

The judgment in the Whipple Case has been paid and the execution therein returned satisfied.

We think that the case at bar may be readily distinguished from the Brown-Corliss Company Case. In the latter the receiver was not appointed to administer the affairs The note for $2,564.24 given to the Meof the insolvent corporation for the benefit chanics' Bank, and the note for $300 coverof its creditors generally, but simply in aid ing the legal services of Alfred S. and Arof an execution in favor of a single creditor. thur P. Johnson in defending the Whipple for the sole purpose of collecting the judg-suit, have both been renewed and the interment. The assets of the Brown-Corliss Com- est paid by the Herbo-Phosa Company. pany, with the exception of the insurance These notes, so far as appears, are valid policy, were all in the hands of the trustee claims against the Herbo-Phosa Company, in bankruptcy, and the policy was of no and the agreed facts, above quoted, serve to value to the Brown-Corliss Company until strip the transaction of any collusive feature the judgment was satisfied. The receiver, which could effect any modification of its as such, was not invested with any property liability thereon. We think that the plainformerly of the Brown-Corliss Company. tiff is entitled to recover of the defendant The note was not discounted, but was sim- the amount of the judgment and costs which ply a valueless piece of paper turned over it has paid, together with the counsel fees to the plaintiff in the damage suit in satis- incurred in the defense of the suit and infaction, as it was claimed, of his judgment. terest from the date of payment. There is In the case at bar the Herbo-Phosa Com- no dispute between the parties as to the pany made its note, in an amount sufficient amount of the plaintiff's claim. to pay the judgment and costs, which said note was discounted at the bank. Such procedure on the part of the plaintiff company, unattended by other circumstances, would come within the ordinary course of business. The discounting of its note for this purpose would not tend to prove the insolvency of the Herbo-Phosa Company, but would as readily indicate that the company was at the BEATTY v. E. I. DU PONT DE NEMOURS time without the ready money with which to pay the judgment.

Decision for the plaintiff for $3,132.80 and costs. The papers in the case are remitted to the superior court, with direction to enter judgment for the plaintiff in accordance with such decision.

POWDER CO.

(Supreme Court of Pennsylvania.

(236 Pa. 585)

May 22,

1912.) MINES AND MINERALS (§ 118*)—OIL WELL

EXPLOSION OF GAS.

Where a boy was injured when defendant was employed to torpedo a well, and the boy, instead of staying on a public road, some 60 feet from the well, where he would have been safe, went to the well out of curiosity, and was injured when the gas ignited, he cannot recover.

[Ed. Note.-For other cases, see Mines and

Minerals, Cent. Dig. § 240; Dec. Dig. § 118.*]
Appeal from Court of Common Pleas, Mc-
Kean County.

The defendant, however, claims that the circumstances attending the making and discounting of the plaintiff's note, which are fully recited in the agreed statements of facts, are sufficient to stamp the whole transaction as a subterfuge wholly designed to avoid the terms of the policy, and that the case therefore comes within the law as laid down in Stenbom v. Brown-Corliss Engine Company. So far as it appears by the facts presented to the court, the note in question constitutes a valid claim against the plaintiff company. While it might be contended, by way of argument, that the method of arranging this whole matter was only consistent with some prearranged plan to avoid the terms of the policy, yet the pith of the ques- Trespass by a boy twelve years old to retion is in the validity of the note as a claim cover damages for personal injuries. At the legally collectible from the Herbo-Phosa trial the court below entered a compulsory Company. The parties agree in their state-nonsuit which it subsequently refused to

Action by John Beatty against the E. I. Du Pont De Nemours Powder Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

take off; Bouton, P. J., filing the following | it came in contact with a flame of some deopinion:

"From the pleadings and evidence it appears that some time prior to April 2, 1909, Hooker and O'Donnell drilled an oil well on a vacant lot abutting on School street, in the city of Bradford. This lot was located between the lots of H. Bryman and Mrs. Bernstein. The well was from 50 to 60 feet from the sidewalk running along School street. The owners of the well secured permission from Bryman and Mrs. Bernstein, as well as from other property owners in the immediate vicinity, to drill the well on this lot. On April 2, 1909, the well owners employed the defendant company to torpedo the well with solidified nitroglycerine. Permission to torpedo the well was given by the city authorities, and the city sent several police officers to keep the people away from the well, while the same was being torpedoed. It appears that, after the well was torpe doed, the gas therefrom became ignited, and several boys, including the plaintiff, were seriously burned, and this action was brought by the plaintiff, John Beatty, to recover damages for injuries thus sustained. At the close of the plaintiff's case we were asked by defendant's counsel to grant a compulsory nonsuit, on the ground that there was no negligence shown against the defendant. "We were then of opinion that the motion was well taken and granted the nonsuit, which we are now asked to take off. What

scription. The explosion occurred about 10 minutes after the well had been successfully torpedoed, and what caused the explosion does not appear from the evidence. Whether it came from some one carelessly lighting a match, smoking a cigarette, or otherwise, we can only conjecture. But the evidence fails to show that the gas was ignited from any act, negligent or otherwise, on the part of the defendant, or those in its employ. We are still of opinion that the plaintiff entirely failed to show any negligence on the part of the defendant, which caused the injury.

"And now, to wit, January 17, 1912, the rule to show cause why the compulsory nonsuit should not be taken off is discharged."

Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John G. Johnson, of Philadelphia, and Mullin & Mullin, W. E. Burdick, and Jones & Wick, all of Bradford, for appellant. J. E. Mullin, of Kane, D. H. Jack & Son and R. B. Stone, all of Bradford, and Thomas J. Laffey, of Wilmington, Del., for appellee.

PER CURIAM. This judgment is affirmed, on the opinion of the learned president judge of the court below on refusing to take off the nonsuit.

CHURCH v. BAER.

1912.)

(236 Pa. 605)

597*)-CONSTRUCTION-NATURL

Where testator devised land to his wife

for life, and after her death to his daughter,
outlive her mother and leave no legal heirs, the
and provided that, if his daughter should not
land should belong to the son, the daughter, on
the death of the mother, takes an estate in
fee simple in the land.

Dig. 88 1319-1326; Dec. Dig. 597.*]
[Ed. Note. For other cases, see Wills, Cent.
2. WILLS (8 506*)-NATURE OF ESTATE DE-

VISED "LEGAL HEIRS"-"LAWFUL ISSUE.'

we said in granting the nonsuit we now in (Supreme Court of Pennsylvania. May 22, substance repeat. The evidence clearly show-1. WILLS ( ed that the defendant did not have charge OF ESTATE-FEE SIMPLE. of the well; that it was employed to torpedo it, and that its duty was simply to lower the torpedo in the well and explode it. This it did, and with it its duty ended. The injury to the plaintiff, it will be observed, was not caused by any act or omission on the part of the defendant or its employés. The plaintiff was not injured while on a public highway or thoroughfare of the city, but was from 40 to 60 feet off the highway, in close proximity to the well. There were numerous people on the highway, none of whom were injured by this gas explosion. The plaintiff went down near this well mere ly out of curiosity. There was a sign on the derrick, and one or two other signs immediately near, warning people in the following language: 'Danger! keep out!' The police officers, as well as Mr. Hooker, one of the well owners, and other employés, it appears from the evidence, did their best to keep Action by Isabella D. Church against Jothese boys away from the immediate locali-seph J. Baer. Judgment for plaintiff, and ty. But, as testified by one witness, they defendant appeals. Affirmed. ran by the officers like a flock of sheep.'

Where testator devises land to his wife for life, and after her death to his daughter, and, if she shall not outlive her mother "and leave no legal heirs," then to the son, the words "leave no legal heirs" are equivalent to "leave no lawful issue."

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1090-1099; Dec. Dig. § 506.* vol 5, pp. 4029, 4030, 4063, 4064.]

For other definitions, see Words and Phrases,

Appeal from Court of Common Pleas, Fayette County.

Case stated to determine marketable title to real estate. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant on case stated.

"We fail to see how the defendant owed the plaintiff any duty which was not performed. The evidence shows that all fires in and about the boiler, which was used for operating the well, had been carefully extin- Argued before FELL, C. J., and POTTER, guished; that gas would not explode, unless | ELKIN, and MOSCHZISKER, JJ.

John S. Christy, of Uniontown, for appel- | refer to the death of the daughter Isabella lant. Thomas H. Hudson, of Uniontown, without issue during the life of his wife for appellee.

ELKIN, J. This in effect is an action for purchase money, and the right to recover depends upon whether the plaintiff took an indefeasible estate upon the death of her mother, under the will of her father. The clause of the will under which plaintiff claims title is as follows: "I give and bequeath to my wife, Margaret, one hundred acres of the home farm, with the house and stabling thereunto belonging during her lifetime, and after her death I desire the same shall belong to my daughter Isabella Church. Should my daughter Isabella not outlive her mother and leave no legal heirs, then the said one hundred acres of land is to belong to my son, John Church, subject to the conditions, hereinafter stated. It is also my desire, my daughter, Isabella shall have a home and equal interest with her mother in the property set apart for the latter, during the lifetime of her mother." This is followed by conditions imposed upon his son John in event that he outlive his mother and sister and take title under the will. After the death of the testator in 1883, his widow and the daughter Isabella took possession and lived together upon the home farm as directed by the will until the death of the widow in 1887. Since that time Isabella has been in enjoyment and possession of the farm. She has agreed to sell and convey the property, and the purchaser agrees to buy if she can convey the fee. The testator gave a life estate to his wife, and upon her death an absolute estate in the first instance to his daughter Isabella. The question is whether that absolute estate is cut down by the subsequent provisions of the will.

Margaret. The testator evidently contemplated that his daughter might die before his wife without lawful issue, in which event he made provision against a lapse by giving the farm to his son John. Isabella outlived her mother, and therefore the situation did not arise against which the testator made provision. We are of opinion that the testator intended his daughter to take an absolute estate if she survived her mother, and only meant his son John to take if Isabella died before her mother without leaving lawful issue.

The learned court below gave the case thorough and exhaustive consideration, and properly disposed of it. Judgment affirmed.

Where a road supervisor was elected in February, 1912, he was entitled, under the constitutional amendment of 1909 and the schedule thereto (5 Purd. Dig. [Stewart's Ed.] p. Monday in December, 1913, though the ballot 5197, § 13), to hold his office until the first specified his term to be one year.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 304-307; Dec. Dig. § 93.*]

Appeal from Court of Common Pleas, Fayette County.

Quo warranto by the Commonwealth, on the relation of David Cole, against N. E. Murphy. Judgment for relator on demurrer to answer, and defendant appeals. Affirmed.

On demurrer to answer to petition for quo [1, 2] Appellant relies on the provision, warranto. The petition for the writ set "should my daughter Isabella not outlive forth that the relator was elected road suher mother and leave no legal heirs, then the pervisor of North Union township at the elecsaid one hundred acres of land is to belong tion held on the third Tuesday of February, to my son John Church," to sustain his con- 1910, that a certificate of election was given tention that Isabella did not take an abso- to him, and that he subscribed to the oath lute estate upon the death of her mother. of office and continued to discharge the duThis depends upon what the testator meant ties of the office until the defendant usurped by the words "not outlive her mother and the office. The respondent by his answer obleave no legal heirs." There cannot be the jected that the petition did not show the rela slightest doubt that the testator used the tor entitled to the office, and further set words "legal heirs" in the sense of "issue forth that on the third Tuesday of Februof the body." This appears from the con- ary, 1908, William C. Bowers was elected text and the manifest intention of the tes- road supervisor for the term of three years, tator in providing for the different members and that he served for the period of one of his family. When an absolute estate is year, when he resigned, and N. E. Murphy followed by these words, they will be under- was appointed to fill the vacancy; that at stood as referring to death without issue in the regular election in February, 1910, the the lifetime of the testator, if the devise is relator was elected on a ballot which specifimmediate, or during the continuance of the ically mentioned a term of one year; that life estate, if it is not. Mayer v. Walker, the term of the relator expired on the first 214 Pa. 440, 63 Atl. 1011. In the case at Monday of December, 1911; and that in bar the words "leave no legal heirs" are November, 1911, respondent was duly electequivalent to "leave no lawful issue," and ed township supervisor under the act of

1911 to fill the vacancy caused by the ex- L. 942) appears to follow this construction piration of the term of relator. of the constitutional amendments.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

E. C. Higbee and George Patterson, both of Uniontown, for appellant. H. S. Dumbauld and David E. Bane, both of Uniontown, for appellee.

MOSCHZISKER, J. The learned court below correctly stated the question for decision to be "whether or not the term of office of the relator expired in 1911, leaving a vacancy to be filled at the November election of that year." The relator was chosen a township supervisor at the February election, 1910. There was a vacancy in the office to be filled by election at that time, and the ballot specified the term to be one year. But the court below decided that the constitutional amendments of 1909 and the schedule thereto, which were then in force and effect, had expressly fixed and de termined the period during which all such officers elected in February, 1910, should serve, and that they gave the relator the right to hold the office to which he had been elected until the first Monday in December, 1913.

The fourth paragraph of the schedule (5 Purd. Dig. [Stewart's Ed.] p. 5197, § 13) provides: "In the year 1910 the municipal election shall be held on the third Tuesday of February, as heretofore; but

given for the plaintiff, and affirmed by the Superior Court.

The title of the act in question is broad, and indicates an intention to deal with the appointment, employment, and compensation of stenographers in all proceedings in the several courts.

* *

* *

(236 Pa, 622)

REICHNER v. TRUST CO. OF NORTH
AMERICA.

(Supreme Court of Pennsylvania. May 22,
1912.)

BILLS AND NOTES (§ 537*)-ACTIONS-EVI

In assumpsit by the indorsee of a note against the executor of the maker, the plaintiff offered the note with an indorsement in blank of the payee on the back. The note also order of the plaintiff, dated several months bore a special indorsement of the payee to the after maturity, which indorsement, however, was not offered in evidence by either party. It was shown that the note had been discounted by a bank on the date of its execution, that some one had paid the full amount to the bank at maturity, and that the proceeds had been placed to the credit of the payee on the books of the bank. In rebuttal plaintiff offered the affidavit of defense to show an admission that the payee had the note discounted at the bank at maturity, and paid the note in full. There was no evidence that the note had been signed by an accommodation maker. Held, that verdict and judgment for plaintiff should be sustained, since plaintiff was entitled to binding instructions.

DENCE. It reads: "Relating to the appointment of stenographers * to report proceedings in the several courts of common pleas * of this commonwealth, as well as before commissioners, masters and special masters in chancery, referees, examiners, auditors, and other officers; prescribing their powers and duties; prescribing their compensation and allowances for expenses, when the same shall be paid by the county, * and when by the parties to such proceedings." Section 6 provides the per diem compensation or salary to be paid court stenographers for, inter alia, "taking notes by the direction of any judge or judges of any of the courts aforesaid"; and section 8, that "every official stenographer shall be paid in addition to the compensation provided in section 6 of this act, fifteen cents for each one hundred words of every copy of the stenographic notes of trials and of other matters in connection with the business of the court, that are furnished to the court or filed of record; payment for such copies to be made by the county in which the case is pending, or for which the work is performed, upon the order of the presiding judge."

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 1862-1894; Dec. Dig. § 537.*]

Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit by Winfield K. Reichner against the Trust Company of North America, executor of the last will and testament of Caroline Vautier, on a promissory note. From a judgment for defendant non obstante veredicto, plaintiff appeals. Reversed and ren

dered.

The note in suit was as follows: "$1,200. Philadelphia, 3, 10, 1905. Four months after date I promise to pay to the order of Samuel K. Reichner twelve hundred dollars at 1503 East Passyunk Ave. Without defalcation, for value received. No:

Due

Caroline Vautier, 1503 Passyunk Ave." In

"Mar. 1st.

1906. For value received I assign, sell and transfer all my right, title and interest in the within note to Winfield K. Reichner. Saml. K. Reichner."

The services rendered by the plaintiff in this case are comprehended within the words "other matters in connection with the business of the court, that are furnished to the court or filed of record." They were performed at the direction of the court, and the copies were for the use of its officers. In each instance they were filed of record with such officer's report, and the "presiding judge" of the court approved the plaintiff's dorsed: "Samuel K. Reichner." charges and ordered payment thereof. The correctness of notes of testimony upon which courts base their decisions in divorce and charter cases is a matter of vital public importance. "The statute (Act May 1, 1907, The facts are stated in the opinion of the supra) has general reference to public judi- Supreme Court. At the trial the jury recial proceedings. The public gen- turned a verdict for the plaintiff for $1,672.erally * have an interest in the 80. Subsequently the court entered judgment prompt, efficient, and certain administration for defendant non obstante veredicto. of justice. It is therefore to the Argued before FELL, C. J., and BROWN, interest of all the people that every proper MESTREZAT, POTTER, and ELKIN, JJ. safeguard should be provided to guard W. W. Porter and Albert T. Bauerle, both against mistakes in the administration of of Philadelphia, for appellant. George Henjustice." Clift v. Philadelphia, 41 Pa. Super. derson, of Philadelphia, for appellee. Ct. 638, 642, 643. The act having conferred authority upon the courts of common pleas to order payment for services of the character performed by the plaintiff, judgment in his favor was properly rendered below and sustained by the superior court. The assignments are overruled, and the tion, judgment non obstante veredicto for dejudgment is affirmed. fendant was entered upon the whole record.

* *

*

*

ELKIN, J. This suit was brought by the indorsee against the maker of a promissory note. At the trial the jury found in favor of the plaintiff, and returned a verdict for the principal and interest of the note. On mo