for which he is legally entitled to the amount of $136.00, which sum deponent claims to set off to the above sum of $150.00. (7) Deponent is informed by John F. Rau, and believes, that plaintiff has not by any proceeding whatever fixed the amount of liability or indebtedness of John F. Rau, trading as Snowdon & Rau, for freight and tolls, and has not at any time retaken, kept possession of, or liened any coal of or carried for Snowdon & Rau to secure the payment of all and every sum due and unpaid, collectible or to be collected by plaintiff for freight and tolls from Snowdon & Rau, but in violation of its custom and established usage, and the provisions of its covenants and agreements entered into with Snowdon & Rau. (8) Deponent further deposes and says that he believes and expects to be able to prove that there is not justly due and owing by him to plaintiff any sum of money whatever for freight and tolls, and denies that there is any liability on his part, under plaintiff's statement of claim. All of which this deponent believes and expects to be able to prove on the trial of this cause."

The assignments of error are as follows: "(1) In making the 'rule absolute' for judgment for want of sufficient affidavit of defense; (2) in not discharging the rule for judgment for want of sufficient affidavit of defense; (3) in entering judgment for plaintiff, because the copy of book entries appended to plaintiff's statement does not contain any charge against the defendant, nor does the statement say that the original does; (4) in entering judgment for plaintiff on the copy of bond appended to plaintiff's statement, because there is no express agreement of defendant contained therein for the entry of judgment against him; (5) in entering judgment on the foreign attachment, either for want of an affidavit or sufficient affidavit of defense; (6) in entering judgment for plaintiff."

James Rich Grier, for appellant. John G. Lamb and Thomas Hart, Jr., for appellee.

PER CURIAM. We are satisfied from an examination of this record that the court was right in adjudging the affidavit of defense insufficient to carry the case to the. jury, and hence there was no error in entering judgment for the plaintiff. There is no merit in either of the specifications of error. Judgment affirmed.

IAQUINTA v. CITIZENS' TRACTION CO. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

STREET RAILROADS-PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE.

The question whether a boy between 12 and 13 years of age is guilty of contributory negligence in standing within two or three feet of the outer rail of a street-car track is one of fact; and in an action against the company

for his death, caused by being struck by a car, it is proper for the court to refuse to direct a verdict in defendant's favor.

Appeal from court of common pleas, Allegheny county.

Trespass by Dominica Iaquinta against the Citizens' Traction Company for the death of plaintiff's minor son, who was struck by one of defendant's cars. There was a verdict in plaintiff's favor for $500, and defendant appeals. Affirmed.

Plaintiff's witness testified that deceased was standing on a narrow space between the track and a ditch which was being dug within two or three feet of the track, while defendant's witnesses testified that the boy was standing on the track. The court (MeClung, J.) gave the following instructions: "We have two distinct theories of this accident presented by the testimony of the different sides. The plaintiff alleges that this boy jumped across the ditch which was alongside of the track on Frankstown avenue, perhaps from two to two and a half feet from it,-I believe the Italian who testified upon this subject put it from a foot to two feet, and the superintendent of the work, who was a witness for the defendant, says that it was about two and a half feet. The boy jumped across the ditch to this space between the track and the ditch, and, according to the plaintiff's theory, was standing there, looking down into the ditch, when, without any warning,-without any bell having been rung, at least, until the car was immediately upon him,-the car ran into him, struck him, knocked him upon the track, ran over him, and killed him. The plaintiff says that this car was running at a very fast rate of speed, and that it rang no bell, gave no danger signal, did nothing to warn the boy that he was in a dangerous place, and that he should get to a place of safety, but that it ran him down in the way that is described by the witnesses; the bell not sounding until the car was practically on him. As I have said, even if it was true that the car was being run rapidly, that the bell was not sounded, whilst that would be proof of the negligence of the defendant company, if the plaintiff himself was guilty of negligence contributing to the injury, he could not recover. The theory presented by the defendant is that this car was being run down this grade in the ordinary way, with the power off, and the brakes applied, so as to control its rate of speed; and that the bell was being constantly, or at short intervals, sounded; and that, when they came to about the mouth of Torrens street, or just beyond, the boy appeared upon the pavement, ran along for a short distance, then jumped the ditch, and ran right in front of the car, and was immediately run over. I may say here that, if the theory of the defendant is believed as thus presented, as a matter of course the plaintiff cannot

recover, because it would appear, not only that all the care that was requisite was taken by the motorman in running this car, but that the plaintiff himself was guilty of negligence with which even a boy of his age would be chargeable, which contributed directly to the accident. There is a question in this case which does not arise in all cases; that is, the question of the degree of care to which the boy who was killed is held. He appears to have been a boy, according to the testimony, somewhere between 12 and 13 years of age. His father says that he was a bright boy, and that he was able to take care of himself. It is a question for the jury whether this boy is to be held to the same degree of care as a grown person,-as an an adult. There are cases in which this has been decided as a question of law, even in the case of a boy under 14 years of age. There are dangers which are so obvious that the mind of a young boy would apprehend them as quickly as those of older persons,-as that of an adult. There are other cases in which, as

There,

a matter of law, the adult would be plainly chargeable with negligence, whilst it would be a question for the jury to determine, as a matter of fact, whether or not a boy of this age would be. And it seems to me,-to apply the matter directly to this case, that if this boy ran right upon the track in front of an approaching car, as described by the defendant's witnesses, then that would be negligence, for which even a boy of his age would be chargeable. It was such an obvious danger that there would be no reason for distinguishing between him and an adult. He could see that that was dangerous as plainly as if he were twice the age, or more than twice the age. But if it is a question with respect to standing by the side of the track,-standing and looking into the ditch and standing too close to the track, so that he was struck by the car, the case is not so clear. whilst an adult would undoubtedly be chargeable with negligence as a matter of law, it would be a question for the jury to determine whether or not the boy's capacity was such that he should have apprehended the danger that he was placed in; and that, I think, is the difference here. If the boy ran upon the track, as described by the defendant, and was thus killed, then he would be guilty of contributory negligence. He could plainly see that that was dangerous. If he did not, but simply stood by the side of the track, and then was killed by the negligence of the defendant company, it is a question for you to determine whether or not his capacity was such that he should be charged with having apprehended the danger, and thus charged with negligence contributing to the accident, which would defeat this action. You see, then, why I have said that plainly, under the theory of the defendant company (if you believe the

testimony of the defendant's witnesses, and there are some six of them, I believe,three passengers, the conductor and the motorman and this man who had in charge the gang of laborers at the ditch), the plaintiff could not recover. If you believe the testimony of those witnesses, then, for two reasons, the plaintiff could not recover. In the first place, it would appear that the defendant was not negligent; and then again, even without regard to the question of the negligence of the defendant, the boy would be guilty of contributory negligence in rushing thus before a car that was immediately alongside of him."

Geo. C. Wilson and Wm. D. Evans, for appellant. A. V. D. Watterson and A. B. Reid, for appellee.

STERRETT, C. J. Refusal of the court to direct a verdict for defendant, and thus withdraw the case from the jury, is the only error assigned. In view of the conflicting testimony bearing on the question of defendant's negligence and the alleged contributory negligence of the deceased boy,

this could not have been done without manifest usurpation of authority and invasion of the province of the jury. If the testimony relied on by the plaintiff was believed, there could be no doubt as to the gross negligence of the defendant in recklessly running its car at a dangerously high rate of speed without exercising any of the precautions necessary to warn the deceased and others on the public street of the danger to which they were exposed. On the other hand, the testimony on which defendant relied as tending to prove contributory negligence was of such a conflicting character that it had to be submitted to the jury for their consideration. In any view that can possibly be taken of the case, it involved questions of fact which were exclusively for the determination of the jury, and to them they were fairly submitted in a clear and able charge, distinctly presenting all the issues of fact, and the law applicable thereto, in such a way that no complaint is made by either party. Further elaboration is unnecessary. The case was well tried, and there is no error apparent on the record. Judgment affirmed.

CAMPBELL v. MCCLEARY. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

EXECUTION SALE-DISTRIBUTION OF PROCEEDSSHERIFF'S LIABILITY.

Under Act April 10, 1862 (P. L. 364), which authorizes the sheriff of Allegheny county, on a sale of real estate under execution, to distribute the proceeds according to the list of liens on the property, as certified by the proper officers, the sheriff must take the liens as they are reported to him as the basis of the distribution; and he is personally liable for a

the court.

Appeal from court of common pleas, Allegheny county.

Case submitted on agreed statement, wherein D. B. Campbell was plaintiff, and W. H. McCleary defendant. Judgment was rendered in plaintiff's favor, and defendant appeals. Affirmed.

Defendant was sheriff of Allegheny county. By virtue of a levari facias, he sold real estate of Simon Studle for $1,200. The sheriff procured certificates of liens on the property sold, and reported to the court a schedule of distribution of the proceeds of sale, under the provisions of Act April 10, 1862 (P. L. 364), and the rules of court made under said act.1 The schedule of distribution reported by the sheriff was duly presented in court, and read, in accordance with rule, on April 22, 1893, and was then marked by the prothonotary "Confirmed nisi." On May 3, 1893, no exceptions having been filed, the same was marked "Confirmed absolutely," and was so certified to the sheriff by the prothonotary, and thereafter the money was paid out by the sheriff according to the schedule of distribution. The plaintiff in this case, D. B. Campbell, was a mortgage creditor of Simon Studle, the defendant in the execution, and his mortgage appeared upon the list of mortgages as certified to the sheriff, and this mortgage was divested by the sheriff's sale, and was entitled to the sum of $449.32 out of the proceeds of the sale; but the sheriff, be

1 This act reads as follows: "When real estate shall be sold, by virtue of any writ of execution issued from any court in the county of Allegheny, it shall be lawful for the sheriff to report to said court a schedule of distribution of the proceeds of said sale, according to the list of liens on the property sold, as certified to him from the record by the proper officers, which schedule and list of liens he shall attach to his return of said writ; whereupon, the said return shall be read in open court, upon some day during the term to be fixed by order of the court, and if the said distribution shall not be questioned or disputed within such reasonable time as may be fixed by the court, it shall be final and conclusive, and the sheriff shall proceed to pay out, in accordance therewith, the money mentioned in his return, but, if exception to the sheriff's return be made by any person interested therein, within such time, the court shall proceed to hear and determine the same, as now provided by law in cases of dispute as to the distribution of the proceeds of sheriff's sales."

The rule of court provides as follows: "Rule 140. In all cases where special returns of the sheriff are required by law, they shall be read in open court on Saturday morning, at 10 o'clock in No. 1, and 10% o'clock in No. 2, and the reading thereof shall be noted on the writ and on the minutes of the prothonotary. Upon the reading of a special return, the same shall be confirmed nisi, which confirmation shall become absolute unless exceptions be filed within ten days, and, if exceptions are filed, the same shall be immediately placed on the argument list. Exceptions not founded on matters of cord shall be verified by affidavit, otherwise they shall be treated as null."

was not divested by the sale, did not appropriate any moneys to the Campbell mortgage, but appropriated this sum to the lien of A. J. Scott, upon which the execution was issued and sale made, although Scott's lien was subsequent to that of Campbell. After the money was paid out by the sheriff, Campbell demanded payment from the sheriff, which was refused, and this suit was brought by Campbell against the sheriff upon a case stated.

The following is the opinion of the court (Stowe, P. J.): "It seems to me that the sheriff has no right, under the act of April 10, 1862, to report a schedule of distribution of the proceeds of sale except according to the list of liens on property sold, as certified by the proper officers. by the proper officers. And if he fails to report a schedule not in accordance with such list, whether intentionally or by mistake, the act of the court in confirming it shall not be conclusive. It is his duty to report according to the liens. If, having done so, the distribution should be questioned, then the court shall proceed to hear and determine the exceptions taken to the sheriff's report of distribution, as provided by act of 16th June, 1836, in case of disputes as to the distribution of the proceeds of sheriff's sales. The purpose of the act seems to be to relieve the sheriff from personal liability when he has made distribution according to the liens filed. Having done that, his skirts are clear. He has no power to adjudge any dispute as to the questions which may arise outside the liens themselves. He must take the liens as they are reported to him as the basis of his report, and if he fails to do that, and loss arises to any person actually entitled to the fund thus improperly distributed, I think he is held liable as in other cases when he undertakes to make distribution. The suggestion that the act of the court in confirming the report is conclusive is plausible, but does not seem to me well founded. The act only gives the sheriff the right to report a schedule according to the liens. The power of the court is limited to confirming such report, and, if the court confirms a report of distribution not so made, I do not think its act relieves the sheriff. The very foundation of the right of the sheriff to relieve himself from liability has failed, because he has not made distribution as required by the act of assembly, and the proceeding is coram non judice."

R. B. Petty, for appellant. John G. MacConnell, for appellee.

PER CURIAM. There was no error in entering judgment for the plaintiff on the case stated. All that is necessary to be said on the question involved will be found in the clear and concise opinion of the learned president of the court below; and on it we affirm the judgment. Judgment affirmed.

FRIEND v. OIL-WELL SUPPLY CO. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

AFFIDAVIT OF DEFENSE-SUFFICIENCY-EVICTION

OF TENANT.

1. In an action for rent, an allegation in the affidavit of defense that defendant was evicted by title paramount is not bad as a mere conclusion of law, and it is error to render a judgment for plaintiff for want of a sufficient affidavit of defense.

2. An allegation that defendant was enjoined from interfering with the possession and use of the leased premises by a railroad company, in so far as such use and possession were necessary to enable the company to repair a bridge, and that such injunction amounted to an eviction, is sufficient to entitle defendant to a hearing on the question of eviction.

Appeal from court of common pleas, Allegheny county.

Assumpsit by J. W. Friend against the Oil-Well Supply Company for rent reserved. in a lease. Judgment was rendered for plaintiff for want of a sufficient affidavit of defense, and defendant appeals. Reversed.

The affidavit of defense was as follows:

“John Eaton, president of the Oil-Well Supply Company, above named defendant, being duly sworn, says that the said defendant has a just and legal defense to the whole of the plaintiff's claim herein, the nature and character of which is as follows: That on the 1st day of July, 1892, the day of the commencement of the term mentioned in the agreement, a copy of which is attached to the plaintiff's statement of claim, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, by virtue of title paramount to that of the plaintiff, evicted the defendant from said premises, and the said defendant has never used or occupied the same; that there has therefore been a total failure of consideration for the rent reserved in said article of agreement; that on or about the 27th day of May, 1892, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company brought an action in equity in this court at No. 120, August term, 1892, against said Oil-Well Supply Company and said James W. Friend; *** that such proceedings were had in such action that on the 14th day of June, 1892, an injunction was issued against the said Oil-Well Supply Company and said James W. Friend, a copy of which is hereunto annexed." The amendatory portion of the injunction reads as follows: "Now, therefore, we command you, the Oil-Well Supply Company and J. W. Friend (the bond above referred to having been duly approved and filed), that you desist, and that you cause your agents, servants, and employés to desist, from interfering with or molesting the plaintiff [the railway company], or its contractor, or their servants or employés, from entering upon the property under said viaduct, and occupying so much thereof as may be necessary during the reconstruction of said bridge, and from temporarily removing or

transferring to any adjacent ground so much of any structures or materials upon said grounds as may be necessary; with the proviso, however, that the plaintiff shall not be fore the 1st day of July, 1892, do anything upon the grounds which shall stop or seri ously interfere with the operation of the defendant's mill, until the further order of the court, and this as you shall answer the contrary at your peril."

M. A. Woodward and James C. Boyce, for appellant. Knox & Reed and Edwin W. Smith, for appellee.

GREEN, J. The defendant's affidavit does allege an actual eviction from the leased premises by title paramount to that of the plaintiff, and that the defendant has never used or occupied the same, and therefore that there has been a total failure of consideration for the rent reserved. Of course, an actual eviction by title paramount to that of the lessor suspends the rent, and we are hardly at liberty to say that when an eviction is alleged positively in an affidavit of defense we can or will treat the averment

as the mere assertion of a conclusion of law. The affidavit also discloses a decree against the defendant and the plaintiff for a preliminary injunction restraining them from interfering with or molesting the railroad company, or its contractor, or agents and employés, in entering upon and occupying so much of the premises under the viaduct as may be necessary for use during the reconstruction of the bridge, and from removing and transferring to any adjacent ground so much of any structures or materials upon said grounds as may be necessary. Of course, it is impossible for a court to judge how' much the terms of such an order will interfere with the possession and use of the premises leased by the defendant, but, as the defendant alleges under oath that it amounts to an eviction, we think it is entitled to have the full facts heard and determined by a jury. Upon the development of all the facts on the trial, the court can much more intelligently judge whether an eviction has been established, and how to administer justice between the parties. Judgment reversed, and procedendo awarded.

CITY OF PHILADELPHIA v. HILL. (Supreme Court of Pennsylvania. Jan. 21, 1895.)

STREET PAVING-REPAIRS BY CITY-EFFECT ON LIABILITY OF ABUTTING OWNERS.

The repair of a street by the authority of the Philadelphia city councils, though extensive, and of a reasonably permanent character, made at the expense of the city, and not of the abutting owners, is not an original paving, such as will prevent a future paving at the expense of the abutting owners. City of Phila delphia v. Dibeler, 23 Atl. 567, 147 Pa. St. 261, followed.

Appeal from court of common pleas, Philadelphia county.

Scire facias on a municipal claim by the city of Philadelphia, to the use of John M. Mack, against Elizabeth B. Hill. The court directed a verdict for plaintiff, and defendant appeals. Affirmed.

Elizabeth B. Hill, the appellant, was the owner of a number of contiguous messuages and lots of ground situate on the southeast side of Woodland avenue, described as follows: "Situate in the 27th ward of Philadelphia, beginning at a point the intersection of the southeasterly side of Woodland avenue with the northeasterly side of Island road, containing in front on said Woodland avenue 114 feet 11 inches, and in depth 110 feet, more or less." The councils of the city of Philadelphia, by an ordinance approved March 30, 1889, authorized the paving of certain streets, including Woodland avenue, from Church lane to Island road, including that part in front of appellant's property, with vitrified paving bricks. On May 2, 1889, a contract was duly entered into (by virtue of said ordinance) between the city of Philadelphia and John M. Mack, the appellee, for the paving of Woodland avenue. Upon the completion of the work, a bill was presented by the city of Philadelphia, to the use of John M. Mack, to Elizabeth B. Hill, the appellant, for the paving in front of her properties, which she refused to pay. On the trial of the cause the foregoing facts were proved by the plaintiff, and the defendant then put in evidence an ordinance of the councils of the city of Philadelphia, approved November 5, 1883, entitled "An ordinance to authorize certain transfers in annual appropriations *** for repairing Woodland avenue, in the Twenty-Seventh ward," as follows: "Section 1. The select and common councils of the city of Philadelphia do ordain that the city controller be authorized and directed to make the following transfers, viz.: * * * To new item, to be called Item 28; for repairing Woodland avenue, in the Twenty-Seventh ward, twenty thousand ($20,000) dollars in the annual appropriation to the department of highways for the year 1883." Defendant then offered in evi

dence a contract made between W. B. M. Conklin and the city of Philadelphia, in pursuance of the last-named ordinance, dated June 14, 1884, to regrade Woodland avenue from the end of the stone pavement, near Fiftieth street, to Cobb's creek, and to macadamize the southeast side thereof, and also the bills and statements showing a settlement with the said Conklin for said work, and the approval of the work by the city. The above-mentioned contract, bills, and statements were produced and identified by the custodian of the records in the city comptroller's office. This offer was objected to, and the objection was sustained by the court. Defendant further offered to prove that W. B. M. Conklin entered into the contract above named on June 14, 1884, including the macadamizing in front of the defendant's property; that he did the work and got the money. This offer was also objected to, and the objection sustained by the court. Defendant further offered to prove that before the paving was done for which this lien was filed, Woodland avenue, in front of defendant's property, was laid from curb to curb with macadamized pavement, with the exception of a space of the roadway on the side of the curb, which was paved with cubical blocks along the curb four feet wide. This offer was also objected to, and the objection sustained by the court. The testimony above referred to was offered by the defendant for the purpose of showing that the paving in question, for which this suit was brought, was in no sense an original paving, but was a repaving; that the street had already been macadamized under an ordinance of councils, and a contract made thereunder, and that the work done thereunder had been approved by the city, and that, therefore, the defendant and his property were not responsible or liable for the cost of the paving in question. Joseph S. Goodbread, for appellant. win O. Michener, for appellee.

Ed

PER CURIAM. This case is ruled by City of Philadelphia v. Dibeler, 147 Pa. St. 261, 23 Atl. 567, and on the authority of that casi the judgment of the court below must be sustained. Judgment affirmed.