& C. Ch. 109, the stock was paid in full, but the original articles of agreement authorized the directors to call for additional shares to carry on the operations of the company. Such a call was made in accordance with the articles, and the plaintiff did not comply, but temporized, and finally refused to pay. The company being a mining company, and requiring contributions from its members to conduct the business, and the other members having constantly paid their contributions, until the business became profitable, it was inequitable that the plaintiff should stand aloof while others were furnishing the means to proceed with the business, and be permitted to participate in the profits thus earned, by means of a restoration to his forfeited shares. Clarke v. Hart, 6 H. L. Cas. 649, was an application of the same principle in somewhat different circumstances. It was held that upon all the facts in the case there was an intentional abandonment of the enterprise by the plaintiff after a full knowledge of the forfeiture, and an opportunity to join in the further necessary expenditures to maintain the existence and business of the company. Rule v. Jewell, 18 Ch. Div. 660, was quite similar in its leading facts, being an absolute refusal to pay, not only previous calls, but subsequent necessary contributions to enable the business to be carried on; and the court held that both intentional abandonment and persistent laches and lying by to take chances, after full notice of forfeiture proceedings, were developed by the testimony, and they refused to restore the forfeited shares. But there are no such facts in the present case. The Metalline Land Company was not engaged in any mining or manufacturing business requiring constant contributions from its members to sustain either its existence or its business. The proceedings to forfeit the shares of the appellants were absolutely void for a fatal want of compliance with an essential prerequisite to any forfeiture. There was no lying by for chances while others were keeping the company alive by constant contributions which were essential to that end. There was no intentional abandonment of their interests in the enterprise, and conscious

laches, after full knowledge of the forfeiture proceedings. On the contrary, there was only an illegal and void forfeiture of their shares set up against their claim to a continued ownership of the shares which were originally their property, and which ownership had never been legally divested. This being their legal status, their original ownership continued, notwithstanding the declaration of forfeiture. That declaration was founded upon a default of which they had never been guilty, for there never was a time, 30 days after a notice to pay a call, published in two newspapers,-one in Philadelphia and one in Detroit,-at which they

could have paid the sum demanded, or any sum. Such a time never arrived, because there never was such a publication. Hence they never were in default, and there was no power to forfeit their shares, and they remained the owners of their shares as fully and as lawfully, in all respects, after the declaration of forfeiture as before. They were not bound to take any notice of it, or to seek to have it set aside. They already held their shares, and they continued to hold them, and to be capable of asserting their ownership in any circumstances and for any purpose. They are not the actors in the present proceeding. They were the original owners of the shares in question, and if any other persons assert such ownership they must show it affirmatively, and obtain a judicial decree to that effect. This they cannot do by setting up a void declaration of forfeiture.

There is much discussion of other matters in the paper books, but we do not deem its consideration essential, in consequence of our views upon the leading subject which lies at the foundation of the entire contention. We are of opinion that the appellants are entitled to participation in the distribution to the extent of the shares held by them at the time of the call of 1878, and to that extent the decree of the learned court below must be reversed. The decree of the court below is reversed, at the cost of the appellees, and the record is remitted, with instructions to distribute the fund in the hands of the trustees in accordance with this opinion.

In re STEVENS' ESTATE.

(Supreme Court of Pennsylvania. Oct. 1, 1894.) WILL-CONSTRUCTION.

Testator, after giving his entire estate to his nephew, on certain contingencies, provided that if his nephew should die without becoming entitled to the estate the entire residue should be disposed of as follows: "If the ag gregate sum shall then amount to fifty thousand dollars, without which no further disposition can be made, I give it all to my trustees" to establish an orphans' home, and directed that $20,000 be expended in erecting buildings, and $30,000 be used as an endowment. Held, that the gift to charity was not conditional on its amounting to $50,000 at the time of taking effect, but if at that time it should be less than that sum the trustees must hold it until it amounts to $50,000 before beginning the execution of the charity.

Appeal from orphans' court, Lancaster county; J. B. Livingston, Judge.

Estate of Thaddeus Stevens, deceased. Appeal of T. J. B. Stevens and others, heirs at law, from a decree of the orphans' court awarding a fund to trustees to establish an orphans' home. Affirmed.

H. M. North and D. G. Eshleman, for ap pellants. George M. Kline, for appellee.

cure a charter of incorporation. They are to see that admission is not made to depend on race, color, or religious belief of parents; that all eat at a common table, and share alike in all the advantages of the house of refuge established. The gift to the charity is thus seen to be absolute. The fee simple, having failed to vest in the nephew, vests unconditionally in the charity. The only element of uncertainty in the gift is that which relates to the time when the trustees shall begin the work of erecting, establishing, and endowing the charity. This the testator makes depend on the value of his estate at the time when the contingency happens that vests the title in the trustees for the charity. If at that time the value is $50,000 or upwards, the trustees are required to enter at once on their work. If it is less than that sum then they must wait until it has reached $50,000, "without which no further disposition can be made." The testator's plan requires the use of at least that sum of money, and, if the aggregate value of the estate was less, then

nothing could be presently done but to wait till the necessary sum was in hand. If the parenthetic words should be transposed and placed at the end of the sentence, the meaning would be made to appear very clearly,

The gift would then be in this form: "I dispose of whatever may remain as follows: I give it all to my trustees, to erect, establish, and endow a house of refuge, but I do not want this work entered upon until the trustees shall have at least fifty thousand dollars at their disposal. Of this sum, twenty thou sand dollars may be used to build and furnish a suitable building, and thirty thousand dollars or more, if more should be in the hands of the trustees, must be put at interest as an endowment fund." The learned auditors reached the same conclusion in an elaborate and able report, which the orphans' court adopted as a correct exposition of the will of the testator, and as the basis of the decree appealed from. When the last account was filed by the surviving executor, and the auditors were appointed, the value of the estate was something more than the sum named by the testator as necessary for the establishment of the charity. The decree awarding the fund to the trustees, "to erect, establish, and endow a house of refuge for homeless, indigent orphans," is in accordance with the directions of the testator, and it is now affirmed.

In re STEVENS' ESTATE. Appeal of WIESTLING. (Supreme Court of Pennsylvania. Oct. 1, 1894.) DEMAND NOTES-LIMITATIONS-RUNNING OF STAT

UTE.

The maker of a demand note died 10 years later without any demand thereon having been made. The payee held the note for over 5 years before his death. Twenty-eight years

after the note was made, and after all the parties were dead, the first demand for payment was made. Held, that the note was barred by the statute of limitations.

Appeal from orphans' court, Lancaster county; J. B. Livingston, Judge.

Estate of Thaddeus Stevens, deceased.

From an order disallowing a claim against the estate on a note of deceased, J. M. Wiestling, administrator of Alanson Stevens, deceased, appealed. Affirmed.

A. C. Reinoehl, for appellant.

WILLIAMS, J. This appeal presents but one question. The facts upon which it is raised are free from difficulty. Alanson Ste

vens was the son of Morrill Stevens, of Ver

mont, who was a brother of the late Hon. Thaddeus Stevens, of Pennsylvania. After the death of his brother, in Vermont, Thaddeus Stevens brought his two sons to Pennsylvania, and treated them with the same kindness and liberality that he would have been expected to show them if they had been his own sons. Their interests in their father's estate had remained in the hands of

their guardian in their native state until after

they came of age, when they executed a power of attorney to their uncle to settle with their guardian, and receipt for the money

due them.

By virtue of this power of attorney, Thaddeus Stevens received $2,461 belonging to Alanson. The power of attorney bore date on the 30th June, 1858. On the 12th of July following the decedent settled with Alanson, and gave him his note for $2,400 of the money he had received from Kittridge, the guardian. This terminated the relation of principal and agent or attorney and client, and established that of debtor been made the agent of his uncle, and was and creditor. In the meantime, Alanson had employed at a salary as superintendent of lin county. In 1859 he married, but continthe Caledonia Iron Works, located in Frankued to reside at and take charge of the iron works. In 1861 or 1862 he enlisted in the the service, with a battery he had been inarmy of the Union, in the artillery branch of the discharge of his duty, he was killed at the strumental in organizing. In 1863, while in battle of Chickamauga. battle of Chickamauga. After his death his brother found the note of Thaddeus Stevens

for $2,400 among other papers in his army

trunk. This brother became the administrator of Alanson Stevens' estate, which he settled; but he never made any use of or claim upon the note, and did not treat it as part of his brother's assets. He held it for about 11 years, and died in 1874. His estate was administered by R. W. Shenk, who found the note among his papers, took possession of it, and placed it in the hands of William Leaman, Esq., who retained it after Shenk's death, in 1880. In 1886 Wiestling, the appellant, who had been appointed administrator de bonis non of Alanson Stevens for this pur

pose, obtained possession of it, and demanded payment from the executors of Thaddeus Stevens, the maker. The note was given in

July, 1858, payable on demand. The maker died in 1868. No demand or claim of any sort was made upon him in his lifetime, and no payment upon or acknowledgment of it was ever made by him. The payee held the note for over 5 years before his death. His administrator held it for more than 11 years. Shenk and Leaman held it for 12 years more. Twenty-eight years after its date the first demand is made for payment, and that comes after the death of all the parties who were in a position to know about the transaction, or to explain its nonpresentment. Under such circumstances the statute of limitations is a conclusive answer to the appellant's demand. But it is urged that the statute ought not to apply because the maker of the note was a trustee for the payee. We are unable to find any evidence of the existence of a trust relation. Kittridge, the guardian, was a trustee, but his ward had grown out of his minority, and called upon him by his attorney in fact for settlement. After the settlement with his guardian he next settled with his attorney in fact, received $61 in cash, and a note, payable on demand, for $2,400, in full for the money received by him. The relation of guardian and ward was terminated by the act of the agent of Alanson Stevens. The relation of principal and agent was then closed, by his own act in making settlement in full with his agent. The note created a new relation,-that of debtor and creditor,-and, so far as the evidence enables us to judge, that was the only relation thereafter existing between them. One witness testifies that the decedent once spoke of the note as representing money held by him in a fiduciary

character. If this was so, it is clear that the word "fiduciary" must have been used in a popular and not in a legal sense, for there is no single fact in the case that points to the existence of any trust relation between the maker and the payee of the note. Rupp's Appeal, 100 Pa. St. 537, and kindred authorities, are not applicable on the facts of this case. The decree appealed from was properly entered, and is now affirmed.

PARTY-DAMAGES-EVIDENCE.

1. The surviving party in trespass, as well as in an action on contract, is incompetent to testify; Act May, 1887, § 5, cl. E., excluding him, making no distinction between civil actions.

2. In an action of trespass against one who claimed to be a trustee of plaintiff's lessor, and was a de facto trustee, he is a party to the thing in action, so that on his death plaintiff is incompetent as a witness, being a person whose interest is adverse to the right of the deceased. party, as well as being the surviving party, within Act May, 1887, § 5, cl. E.

3. The fact that plaintiff in trespass, a lessee, intended to plant with tobacco an acre of the land from which he was evicted, but which

he had in no wise prepared for planting, will not authorize a recovery for the probable profit, but his damages are the amount his leasehold is lessened in value by being deprived of the use of the land.

4. One cannot show that there was a settlement of a suit by testifying to the understanding of parties, but he can merely testify as to what was said and done by them.

Appeal from court of common pleas, Lancaster county.

Trespass by Martin D. Irwin against Lorenz Nolde and Moses Miller. Samuel R. Hess, administrator of Lorenz Nolde, deceased, substituted. Judgment for plaintiff against the administrator, and he appeals. Reversed.

William R. Wilson and Wm. D. Weaver, for appellant. H. M. North, E. K. Martin, and T. B. Holahan, for appellee.

FELL, J. This was an action of trespass to recover damages occasioned to the plaintiff by the defendants' taking forcible possession of two fields of a farm which he had rented of a society of which one of the defendants, Nolde, was, or claimed to be, a trustee, and the other, Miller, a tenant under him of the land in dispute. The action was commenced in 1880, and both of the defendants died before the trial, in 1893.

The first and second assignments of error relate to the admission of the testimony of the plaintiff, who was objected to as a witness to matters occurring during the life of the defendants, and to conversations had with them. He was allowed to testify, the reason stated by the learned judge in support of his ruling being that in actions of trespass and tort either party may be a witness, notwithstanding the death of the other, and that "it is only in cases of contract, where one party to the contract is dead, by the policy of the law, the other party is not allowed to testify." We see no valid ground for the distinction made. The plaintiff would not have been a competent witness before the act of 1869, and he came within the letter of the proviso of section 1 of that act, as to "actions by or against executors, administrators, or guardians," and he was excluded by section 5, cl. E. of the act of 1887. The act makes no distinction between different classes of civil actions. Nolde, as a de facto trustee, was a party to the thing or contract in action,-a right connected with the property; and the plaintiff was a surviving party, as well as a person whose interest was adverse to the right of the deceased party. He was within the letter and spirit of the excluding clause of the act, and was clearly incompetent to testify.

The twelfth assignment of error must also be sustained. It appears to have been the plaintiff's intention to plant with tobaccoone of the twelve acres from which he was evicted, and his claim for damages included

what he might have made out of this crop. The general instruction upon this subject was not objected to, and it was substantially accurate; but the answer to defendants' fifth point left it open to the jury to guess at the value of a crop to be raised, and, after deducting the supposed cost of the labor necessary to plant, cultivate, and harvest it, to charge the difference to the defendant, and this course they seem to have pursued. This crop had not been planted, the ground had not been prepared for it, and nothing had been done in relation to it. It had no existence. It was a mere possibility. The plaintiff might have raised the crop elsewhere, and might have been better off if he had not attempted to raise it at all. As to this item of claim. no crop was destroyed or taken away from him. He was deprived of the use of one acre of ground, and to the extent to which his leasehold was lessened in value by that fact he was entitled to recover, if entitled at all.

As the case will go back for trial, the sixth assignment of error should be noticed, to say that it was competent for the defendant to show that there had been a settlement of this suit in 1880, but the manner in which this was attempted to be shown was open to objection. It does not apear upon what ground the objection to the question was made, but if there was any valid ground it will sustain the ruling. It was not competent for the witness to testify as to the understanding of other parties. He should have been permitted to testify as to what was said and done by them. It was open for the defendant to show that there had been a settlement, but the question asked was improper. The first, second, and twelfth assignments of erare sustained, and the judgment reversed, with a new venire.

PATTERSON et al. v. GRAHAM et al. (Supreme Court of Pennsylvania. Oct. 1, 1894.) LICENSE-SALE OF GROWING TREES-ABANDON

MENT.

Where the purchaser of growing trees for the purpose of manufacture enters on the lands within a reasonable time, and cuts all the timber apparently worth taking, and thereupon removes his mill, and abandons the premises for 11 years, his right to enter and cut timber is gone.

Appeal from court of common pleas, Juniata county.

Action of trespass by R. H. Patterson and others against G. M. Graham and Joseph Graham. There was a judgment for defendants, from which plaintiffs appeal. Reversed.

Atkinson & Pennell, for appellants. J. Howard Neely and B. F. Junkin, for appellees.

DEAN, J. The plaintiffs sued defendants in trespass for cutting timber on their land.

The land, in quantity about 750 acres, some years before was owned by Ellen V. Patterson, who devised it to her husband, John Patterson, for his own and their children's use during his life, with power to him of testamentary disposition. At the death of testatrix, in 1865, he took possession under the will. On 3d of August, 1872, for himself and as trustee for his children, he made an agreement with G. M. Graham, one of defendants, to sell to him all the white oak and pine timber on the land. Graham agreed to pay therefor the sum of $3,000 in three equal annual payments, commencing on 1st of April, 1873. It was further agreed, that if there was built, within eight miles of the land, a railroad station, before Graham commenced sawing, or during the time he was sawing, then he was to pay 50 per cent. additional to the contract price, either for the whole, or that portion delivered to the station; Graham to have all needful privileges on the land for successful operations in the lumber business. It was further stipulated that the contract was not to prevent Patterson from selling the land, subject to Graham's rights. No time was fixed for the removal of the timber. Graham paid the full amount of the purchase money on and before March 1, 1876. About the fall of 1878 he put up a sawmill on the land, and commenced cutting the timber, and continued until the spring of 1881, when, having manufactured about all the saw timber, he moved his mill away, and ceased operations. In 1886, John Patterson died, and by his will, and sundry conveyances by and among his children, the title to the land became vested in these plaintiffs. In the summer of 1892,-about 20 years after the agreement was made, and 11 years after he had stopped cutting, and had taken away his mill,-G. M. Graham, with his son Joseph, again put their mill on the land, and cut and manufactured about 350,000 feet of oak and pine. For this the plaintiffs brought suit. They claimed that, under the agreement and evidence, there was a sale of the timber with a reasonable time for removal; that after abandoning the land, in 1881, defendants' right to cut and remove timber ceased with a reasonable time; that 11 years was not an assertion of right within a reasonable time, and this was a question for the court to decide. The defendants contended that the rule that where there is a grant of the land, reserving timber, the grantor must remove the timber within a reasonable time, upon notice, does not apply where there is an absolute sale of the timber without limit as to time; that, in case of such absolute sale, the right to remove is indefinite as to time. The court submitted the evidence to the jury, instructing them that if they found that Graham had not abandoned the land when he removed his mill, but nevertheless, on his return, had cut and removed oak and pine timber not of sufficient size for sawing in 1872, when the agree