Estate of Ellen Hardinger, deceased.

had supplied his necessities; and the Commonwealth's claim for support and maintenance in a state institution may properly be ascertained in proceedings before the auditor appointed to distribute the lunatic's estate, and the same rule applies to the claim of a poor district or county who have paid for the support of the lunatic.

Arnold Estate, 253 Pa. 517.

Mansley's Estate, 253 Pa. 522.
Com. vs. Evans, 253 Pa. 524.

In re Frank Hoffman, 258 Pa. 243.

Following those decisions, and others that might be cited, the learned auditor very properly allowed the claims of the Commonwealth and the Directors of the Poor of Erie County for the amounts paid for the maintenance of the decedent in the State Hospital for the Insane at Warren, Penna., and in our opinion, the claims for taxes and the amount of the charge of the surety company for the premium on the bond of the committee were legal charges against the estate of the decedent, and were properly allowed by the auditor; and the exception to the auditor's report must be dismissed.

ORDER

And now, June 3, 1919, the exceptions to the report of the auditor are dismissed and the report is confirmed absolutely, and distribution is directed accordingly.

ERIE PUMP & EQUIPMENT CO. V. LEECH, ET AL.

Contracts-Partnership-Liability of one holding himself out

as a partner.

Defendants together purchased equipment as partners but at the trial denied the partnership. Held, that in either event they would be jointly and severally liable to the plaintiff for the purchase price, and it is a question of fact for the jury, whether both defendants participated in the transaction.

Motion for a new trial and judgment n. o. v. No. 302 September Term, 1915. C. P. Erie County.

William E. Hirt for plaintiff.

Gunnison, Fish, Gifford & Chapin for J. W. Leech.

WHITTELSEY, J., June 12, 1919-We are not convinced that the Court erred in the charge to the jury, and particularly in instructing the jury that the plaintiffs would recover whether or not a partnership existed, if the jury believed from the evidence that the defendants together purchased the property for the price for which the suit was brought. If the defendants were co-partners, and purchased the property of the plaintiff as claimed, they would be jointly and severally liable to the plaintiff for the price thereof. If they were not co-partners, but jointly purchased the property at the agreed price, they would be jointly and severally liable to plaintiff for the price. In either case the defendant, Leech, would be liable for the price thereof.

Kirk vs. Hartman, 63 Pa., page 97.

Shafer vs. Randolph, 99 Pa., page 250.
Daniel vs. Lance, 21 Sup., page 474.

The evidence on the part of the plaintiff tended to show that both of the defendants were present and participated in the purchase of the property in question, and declared that they were partners and intended thereafter to organize a corporation, in the operation of which a pump and engine was to be used. The defendant, Leech, admitted that he was present at the time the purchase was made, but denied the allegation that he was a copartner in the transaction, or that he held himself out as a partner or participated in the purchase of the property in any manner. The

jury evidently believed the evidence on the part of the plaintiff, and did not believe that on the part of the defendant. Whether or not the defendant, Leech, was liable to the plaintiff as claimed by the plaintiff is a question of fact for the jury.

In our opinion the evidence on the part of the plaintiff was sufficient to sustain the verdict, and the rules for a new trial and for judgment non obstante veredicto to be discharged.

ORDER

And now, to-wit, June 12, 1919, the rule to show cause why a new trial should not be granted and why judgment non obstante veredicto should not be entered are discharged, and the Prothonotary is directed to enter judgment on the verdict on payment of the jury fee.

YOUNG ET AL. V. HOPKINS.

Act of May 20, 1905, P. L. 239-Service of citation upon persons in possession.

By the Second Section of the Act of May 20, 1905, P. L. 239, it is made the duty of the sheriff to serve a citation upon all persons found in possession of the real estate, the latter being added as respondents by the prothonotary or clerk upon the return of the citation. This not being done plaintiffs must issue an alias citation to be served in compliance with the Act of Assembly.

Proceedings to obtain possession by Sheriff's vendee, No. 418 May Term, 1919. C. P. Erie County.

W. J. Young and Charles A. Mertens for Plaintiffs.
L. F. Perry for Defendant.

WHITTELSEY, J., June 16, 1919-It is alleged in respondent's answer to the plaintiff's petition among other things, that he is not now in possession of the real estate described in the petition, nor was he the owner and in possession thereof at the time of the sheriff's sale. That Jessie B. Hopkins is the owner and in possession of the real estate in question, and he further avers that he was not the owner of said real estate at the time of the entry of the judgment, No. 145 September Term, 1915; that that judgment was

Young et al. v. Hopkins.

never a lien upon the premises, and the plaintiff derived no title thereto, for the reason that the sale was void and without effect, and the respondent demands a jury trial.

That Jessie B. Hopkins is in possession of the premises is not denied, in fact, the plaintiffs have brought an action of ejectment against her, founded on the sheriff's sale to them, set forth in the petition in this case.

By the Second Section of the Act of May 20, 1905, P. L. 239, on which this proceeding is brought, it is made the duty of the sheriff to serve a citation "upon all persons found in possession of said real estate," the latter being added as respondents by the prothonotary or clerk upon the return of the citation. This was not done in this case, therefore the Act of Assembly has not been complied with.

If the plaintiffs desire to proceed in this case, an alias citation may be issued and served on Jessie B. Hopkins, as provided by the Act. However, it would seem that the right of the plaintiffs to the possession of the premises may be settled in the ejectment suit without further proceedings in this case.

ORDER

And now, to-wit, June 16, 1919, this case is continued to permit the plaintiffs to have an alias citation issued and served if they so desire.

MODZELEWSKI ET AL. V. ROSSI.

Affidavit of defense-Contracts-Implied contracts of indemnity-Encumbrance deducted from purchase price.

Where a grantee takes land subject to an encumbrance, the amount of which has been deducted from the agreed price, the covenant to be inferred therefrom is of indemnity for the protection of the grantor, although the grantee might not be personally liable for the mortgaged debt and in such case the grantee cannot recover on the covenant from the grantor, unless he proves actual less.

There is nothing in the Act of April 28, 1903, P. L. 327, that would bar a right of action to recover for the loss sustained by reason of the breach of the implied contract of indemnity.

Affidavit of defense in the nature of a demurrer, No. 221 May Term, 1919. C. P. Erie County.

William E. Hirt and Henry Baur for plaintiffs.

C. Arthur Blass and Charles Mertens for defendant.

WHITTELSEY, J., June 16, 1919-The defendant has filed an affidavit of defense in the nature of a demurrer to the plaintiff's claim. By so doing he admits all of the facts set forth in the plaintiff's statement that are well pleaded.

We cannot agree with the contention of the defendant that the plaintiff's statement is insufficient in law to maintain the action thereon, and that said statement is particularly defective in not averring that the said plaintiff, by reason of the facts set forth therein, has sustained any loss or damage whatsoever. While it may be true that the statement does not contain a specific averment that the plaintiffs have sustained loss and damage by reason of the facts alleged in the statement, yet the facts averred show that they have suffered a loss of $723.55 with interest from December 28, 1918, which they have been compelled to pay by reason of the default of the defendant in not paying the bond and mortgage to Bartolomiej Nowel and Amelia Nowel, his wife, which was a part of the consideration for the conveyance of the farm mentioned in plaintiff's statement, by the plaintiffs to the defendant.

There does not seem to be any covenant in the said conveyance which would render the defendant personally liable for the mort