own sale. Any purchase he may make will be held for the benefit of the parties interested, is voidable at their election, and may be set aside by the court.' A large number of cases are there cited which fully support this statement. In Moody's Lessee v. Vandyke, 4 Bin. 31, 5 Am. Dec. 385, Chief Justice Tilghman says: 'Now, even if the administrators had power to sell, they ought not to have made the sale to one of themselves, because the power, being joint, ought to have been executed by all of them, and (which is of far greater consequence) because the policy of the law forbids a person to be the purchaser of that which he is appointed to sell. It requires but a small knowledge of the world to be sensible of the wisdom of this rule. The person intrusted with the sale has so perfect a knowledge of the subject, and so great an opportunity of taking advantage, by appointing the time and place of sale, and employing the agents who conduct it, that to permit him to become the purchaser would be placing too much confidence in the infirmity of human nature.' In Webb v. Dietrich, 7 Watts & S. 401, Mr. Justice Sergeant says: "The rule of equity which prohibits a trustee for sale from purchasing the trust property is not founded on his being necessarily guilty of fraud in so doing. It is a rule of public policy which applies in all cases, whether there be fraud or not, and, indeed, its great object is to prevent fraud by taking away the temptation to commit it. Another reason for the rule is the difficulty, if not impossibility, in many instances, of ascertaining whether there was fraud or not.' The liability of the receiver, under the facts found, does not seem to the auditor to admit of doubt. A further question arises as to whether this liability of the receiver can be enforced by a surcharge on the present audit. That question seems to be settled by the case of French v. Pittsburg Vehicle, etc., Company, 184 Pa. 161, 39 Atl. 63, where a receiver made a sale of the trust property to a firm in which he was to become interested upon the winding up of the receivership.❘ He did become interested in the firm, and upon the filing of his account was surcharged with the difference between the appraised value of the property, as shown by the inventory, and the amount realized on the sale. In Rosenberger's Appeal, 26 Pa. 67, executors were authorized to sell real estate at public sale, and one of them became interested with a third party in purchasing the property, which the purchasers subsequently sold at an advance; and, upon a settlement of the executors' account, they were surcharged with the entire amount of profit made by the purchasers. In Wallington's Estate, 1 Ashm. 307, President Judge King fully discusses this same question, and sustains a surcharge for the difference between the real value and the price obtained at the public sale. It should be noted in this con

nection that the testimony shows that after the purchase in the name of Garland, and for the benefit of the syndicate, a new corporation, called the American Vault, Safe & Lock Company, was formed, to which this property was transferred, which has been carrying on business since the purchase; and, as to this personal property, it would now be impracticable to set aside the sale and require the receiver to resell. The only practicable method of adjusting the rights of the parties is by surcharging the receiver. The only answer made on behalf of the receiver to this liability is that the sale to Garland was a public sale, and that the receiver is protected thereby. Nearly all of the cases in which the question has arisen, and in which the trustee has been held guilty of a breach of trust in purchasing, are cases of public sales, and the cases are clear that the principle applies equally whether the sale be public or private. Wallington's Estate, 1 Ashm. 307. But in the present case the sale to Garland was in no sense a public sale. There was no competitive bidding at all. The receiver applied to the court, by petition, for leave to sell the property to Garland for a fixed sum, stated that he had accepted ten per cent. of the purchase money on account, and recommended that said sale be made, whereupon he received authority to make sale direct to the purchaser. This certainly does not constitute a public sale. Your auditor is therefore of the opinion that the receiver should be surcharged with the difference between the amount realized for the personal property on the sale to Garland and the value of that property.

"(3) As to the receiver's right to commissions: Commissions are a compensation allowed for the faithful performance by a trustee of his duties. Mere neglect, of itself, might not require the disallowance of commissions, but the action of the receiver in this case goes far beyond mere negligence. It resulted in a total loss to the creditors of the value of a large part of the personal property coming into his hands at the date of his appointment as receiver; and, as we have found, he has been guilty not merely of a lack of good faith towards the court touching the property remaining in his hands, and his connection with the sales of that property made by him, but also of concealing his connection with these sales, and of selling the property at a grossly inadequate price, and being interested in the purchase. Under these circumstances, the auditor recommends that the commissions be disallowedespecially so in view of the fact that the receiver has not been surcharged with the value of the personal property lost by him prior to September 29, 1894. 27 Am. & Eng. Ency. of Law, 187, and cases cited.

"Conclusions.

"Your auditor therefore recommends that the receiver's account Le restated, so as to

charge him with the amount realized from the sale of real estate, less the expenses of making such sales, charging him with the amount received for the personal property, and surcharging him with the difference between the amount received from the personal property sold to Garland and the value of that property, and also surcharging him with the deficit arising from his operation of the works between October 11, 1893, and September 29, 1894."

Exceptions to auditor's report were dismissed by the court.

Argued before MITCHELL, DEAN, FELL, BROWN, and MESTREZAT, JJ.

E. P. Douglass, for appellant. J. H. Beal, O. P. Robertson, J. P. Patterson, H. L. Goehring, J. H. Reed, Edwin W. Smith, and Geo. E. Shaw, for appellees.

MESTREZAT, J. We have considered the questions raised on this appeal in connection with the appeal of Lewis McMullen, trustee, from the same decree, in which the opinion has this day been filed. 54 Atl. 504. After an examination of the numerous assignments of error, we are not convinced that the auditor, whose report was confirmed by the court below, has committed any reversible error in his disposition of the case. The exceptions to the report are principally to the findings of fact, and, under our well-settled rule, when the . court below has approved the finding we will not reverse unless clear error is shown. Here there was evidence to warrant the auditor in reaching his conclusions of fact, and the appellant has failed to point out wherein they are clearly erroneous.

The investigation by the auditor was most careful and thorough and the appellant was afforded the fullest opportunity to have the alleged errors corrected on exceptions to two reports. The learned judge of the court below carefully examined the report and exceptions thereto, and, in confirming the report, says he is "convinced that the auditor's report reaches a result as nearly just and equitable as it is possible to arrive at, considering the manner in which the business was conducted by the receiver, and the accounts kept by him." We agree with this conclusion.

There is no merit in the exceptions to the learned auditor's conclusions of law. The surcharges were properly made, and the receiver's commissions disallowed. The reckless and negligent manner in which the receiver conducted the affairs of the trust estate, and the consequent loss to the creditors, legally deprived the receiver of the right to commissions. The law does not compensate an officer for inefficiency and willful neglect of duty. It does, however, hold him strictly responsible for property placed in his hands, and imposes upon him the duty of fully accounting for it.

The assignments of error are overruled, and the decree is affirmed.

(205 Pa. 62)

In re WEHRLE'S ESTATE. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

EXECUTORS-RELEASE FROM DISTRIBUTEE

LACHES.

1. One of two executors paid a legatee certain money, taking a release of her interest. and gave to his coexecutor a release for his own share of the estate, and for all demands whatever against the same. Thereafter the legatee repudiated her release, and obtained an order that the coexecutor should pay her the full amount of her interest. Held, that the other executor could not, 40 years after the death of the testator, and after the death of the coexecutor, recover from the latter's estate the sum of money which he had paid to the legatee.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Francis J. Wehrle, deceased. From a decree dismissing exceptions to adjudication, Herrman Fischer appeals. Affirmed.

He

Stephen Fischer died in 1861, testate. appointed Herrman Fischer and Francis J. Wehrle executors of his estate. An executors' account was filed in Allegheny county on April 18, 1862, but there was no audit. Instead, receipts and releases were taken from the distributees. Helena Weber, a daughter and legatee of the decedent, was paid $1,000 by Fischer, and gave a receipt for her share of the estate, and released the executors. Thirty-five years after the account was filed she repudiated her release, and issued a citation calling upon the executors to pay her her distributive share of her father's estate. The orphans' court, in 1898, awarded her one-third of the balance shown by the account of 1862. The decision rested solely on her testimony that she understood little English and did not comprehend her release. The court further found that Wehrle was the acting executor, and charged him individually with the whole amount found due. Helena Weber testified that she had received in 1862 from Herrman Fischer, the coexecutor, $1,000. Herrman Fischer claimed that this payment entitled him to subrogation, and that he now stands in Helena Weber's place, and can recover this amount from the Wehrle estate. On July 22, 1874, Fischer gave Wehrle a receipt and release for his share of his father's estate, "and of and from any and all other sum or sums of money of, touching, or concerning the estate of said Stephen Fischer, and of and from all accounts, reckonings, payments, suits, actions, accounts, claims, and demands whatsoever for or concerning any matter, cause, or thing whatsoever." The trial court dismissed the claim, Hawkins, P. J., filing the following opinion:

"Herrman Fischer, acting on the suggestion thrown out by the Supreme Court in Wehrle's Appeal, 189 Pa. 179, 42 Atl. 8, has come into this court asking appropriation of the credit allowed on the decree in favor of

Mrs. Weber against Mr. Wehrle. What was said by the Supreme Court does not amount to an adjudication. If it had been thought that there was enough evidence of record that court would no doubt have made a decree accordingly, but it did not do so, and it must be assumed that the question of his right was left open for determination of this court.

"Assuming that the Columbiana county, Ohio, conveyance was on account, it does not necessarily follow that Herrman Fischer is entitled to subrogation as against his coexecutor, Wehrle. Foremost in his way stands a release of all claims against the estate. "Nearly forty years have elapsed since its date without, so far as appears, any claim having been made by him of subrogation. In his answer to Mrs. Weber's petition by admitting her claim he impliedly concedes that he has none, and his subsequent conduct in that proceeding is in entire harmony with that concession. He made direct claim for his own share under the will, but to nothing through Mrs. Weber. He made no denial of her assertion of failure of his title to the Columbiana county property, and consequent failure of consideration. If he had asserted a claim in opposition to Mrs. Weber in the first instance, the whole matter could and should have been disposed of at once. Were Mr. Wehrle living now, the disadvantage of raising another issue would be obvious. Having died, the disadvantages to his representatives are greatly increased, for they are not likely to know of the actual condition of affairs. Appeal of Bentley's Ex'rs, 99 Pa. 500. There is nothing in the case which calls for the interference of a chancellor.

""Courts of equity will sometimes refuse to grant relief, although the statute of limitations cannot be pleaded in bar, and although presumptions cannot arise from lapse of time, or may be conclusively rebutted. In such cases they proceed upon the ground that public convenience will not allow old and stale claims to be investigated, when many of the parties and witnesses are dead or their memories impaired or vouchers lost. And so, acquiescence in a transaction may bar a party of his relief in a very short period. Thus, if one has knowledge of an act, or it is done with his full approbation, he cannot afterward have relief. He is estopped by his acquiescence, and cannot undo what has been done. So, if a party stands by and sees another dealing with property in a manner inconsistent with his rights, and makes no objections, he cannot afterward have relief. His silence permits or encourages others to part with their money or property, and he cannot complain that his interests are affected. His silence is acquiescence, and estops him.' Perry on Trusts, §§ 869, 870.

"Here Herrman Fischer not only made no claim in his own behalf for nearly 40 years,

but actively aided and abetted the inconsistent claim made by Mrs. Weber. He had his day in court, and, having misled Wehrle to his injury, there can be no returning footsteps. He is estopped by his release, by the statute of limitations, by gross laches, and by acquiescence in Mrs. Weber's claim. On the other hand, it would be a hardship at this late day to call on Wehrle's personal representatives, who have not the advantage which he would have had, to answer this, which is certainly an inconsistent claim. seems clear, therefore, that Fischer has no equity to relief."

It

1. Testimony by plaintiff that his injury made him very nervous, and he could not sleep nights, and when he went to stoop over he had great pain, and that he suffered a good deal of pain from the testicle, going along the cord into his stomach, was not inadmissible as opinion evidence.

2. Testimony by a physician, in an action for assault, that he examined plaintiff, who came to him complaining of a pain in his testicle; that he found him suffering from an enlargement of the testicle, and suggested treatment, and stated that if it continued he would have to have an operation performed; that he did not thoroughly diagnose the case; that the next time he examined plaintiff he saw that an operation had been performed; that he knew nothing about the cause of the trouble-was not irrelevant and immaterial.

3. The evidence was not hearsay.

4. Reasons assigned in support of an exception to a prayer as not supported by the evidence, which fail to specify the particulars in which the evidence is defective, will not be considered.

5. Testimony by plaintiff in an action for as sault that on the day following the assault he was obliged to lie down most of the day; that from October to May he had not been able to do manual work, and that when testifying, May 16th, he suffered great pain from the testicle; that for the first time in his service there had been complaints about his work as operator; that the pain in his testicle began with the assault, and continued to the trial-together with a physician's testimony that he examined plaintiff, and found an enlargement of the testicle. and told him if it continued an operation would be necessary, tended to show that the assault was the cause of the injury, that medical and surgical attendance was made necessary thereby, and that plaintiff's capacity for manual labor and his efficiency as a telegraph operator might be diminished thereby, and warranted the granting of plaintiff's prayer, laying down the rule for assessing damages in such a case.

6. In an action for an assault and battery, the burden was on defendants to prove the truth of all the matters set up in their pleas of confession and avoidance.

7. The burden was on plaintiff to establish the assault and resulting injury.

8. If plaintiff entered a store, in which defendants kept a post office and general store, to inquire about a car he had ordered, and one of the defendants called him a liar and a thief, and told the other defendant, who was the postmaster, to throw him out, which the latter immediately proceeded to do, the defendants would be jointly liable for the assault.

9. A prayer is properly refused where everything properly embraced in it is covered by another prayer which is given.

10. An instruction to find for the plaintiff if the jury found the facts to be as stated in a certain prayer given for the plaintiff, unless they found the additional facts stated in a certain other prayer given for defendants, was not calculated to mislead the jury.

Appeal from Circuit Court, Carroll County; Thomas, Judge.

Action by Julian D. Wheeler against Robert Sellman and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Jas. A. C. Bond and F. Neal Parke, for appellants. Guy W. Steele, for appellee.

PEARCE, J. This is an action of trespass vi et armis for an alleged assault and battery by the appellants upon the appellee. The narr. contains but one count, in the usual form, charging the defendants as joint tort feasors, and alleging special damages by reason of expense incurred for medical and surgical attendance. The defendants pleaded non cul., and also filed three pleas in confession and avoidance, in all of which it was alleged that at the time of the assault charged they were possessed of a building in which the plaintiff was trespassing, and from which, though requested, he refused to depart, and that they then removed him, using no more force than was necessary. The second and third of these pleas also alleged that the defendants kept the United States post office at Watersville, and a retail store in the building, and that plaintiff, while in the building, made a noise and disturbance therein, and conducted himself in a rude and quarrelsome manner. The plaintiff joined issue on the first plea, and replied to the second, third, and fourth pleas, alleging the use of more force than was necessary in his removal. Issues were joined on these replications, and an agreement was filed waiving all errors in pleading, and providing that either party might offer any testimony admissible under any state of the pleadings.

There are four exceptions presented by the record: Two with respect to evidence admitted subject to exception, and subsequently refused to be stricken out; one to the ruling upon special exceptions to certain prayers of plaintiff for want of evidence to support them; and one to the granting of certain prayers of plaintiff, and the rejection of cer

6. See Assault and Battery, vol. 4, Cent. Dig. § 36. 54 A.-33

tain prayers of defendants. The first and second exceptions present closely analogous questions. Plaintiff, as a witness, had described the circumstances which led to and characterized the assault, testifying that he had entered the building in a quiet and orderly manner to inquire about a car he had ordered; that Robert Sellman said plaintiff had ordered no car, and he replied that he had, but that Sellman had taken it for his own use, and that Sellman said he was "a damn liar and thief"; that at that time Alonzo B. Sellman, the postmaster, son of Robert Sellman, came in, and Robert Sellman said, "Throw the damn thief out," and Alonzo Sellman seized him by the back of the neck and the bottom of his pants, or by the suspenders, and he was thrown out, from a porch eight or nine feet wide and five feet high, to the ground. He further testified, subject to exception, that while being carried across the porch he had an aching and burning sensation in his left testicle, which pain had continued ever since. He further testified that a short time after the assault he left the place, and said: "I then went up the road through a woods of mine, and when I got in the woods I looked at my testicle, and found a red stripe over it, and it was very much swollen; and two or three weeks after that I found an injury there, and I went to Baltimore and had it taken out. Question. How did this injury that you speak of affect you? Answer. It made me very nervous, and I could not sleep at night, and, when I went to stoop over to do anything, I had great pain. Question. What is your condition at present? Answer. My condition at present is that I suffer a great deal from the pain from the testicle going along the cord into my stomach."

The defendants moved to strike out the testimony above embraced in quotation marks, and the first exception was taken to the refusal to strike this out. In support of this exception, defendants rely upon the rule that the opinions of nonexpert witnesses are not evidence, and they argue that the testimony objected to is merely the opinion or inference of the plaintiff. They admit that he can testify as to his condition before and after the injury, in order that from these facts the jury may form its opinion and draw its inferences as to the cause of the injury; but they say that to ask the witness, "How did this injury which you speak of affect you?" is to ask the very question the jury had to decide, and that to permit the witness to answer, "It made me nervous," etc., is to give probative force to the mere inferences of the witness as to the cause of the injury. It certainly cannot be seriously contended that the rule invoked excludes that part of the testimony objected to, which precedes the question as to how the injury affected him, since that is a simple description of his physical condition and of facts which he knew. City Pass. Ry. Co. v. Nugent, 86 Md. 360, 38 Atl.

779. Nor do we perceive any valid objection to the two following questions and the answers thereto. Each of these questions called for the statement of facts only, descriptive of his physical condition, to which he was certainly competent to testify, and the answers contained nothing but such statements of facts. Neither the questions nor the answers dealt with the cause of the injury. That related exclusively to its effect. The Maryland cases cited by the appellants upon this point have no pertinency to the question here; nor does the language of Lord Mansfield in Carter v. Boehm, 3 Burr. 1918, quoted upon their brief, have any greater pertinency, when the case is examined. That case concerned an insurance effected through a broker, who testified "that he did not believe the insured would have meddled with the insurance if he had seen certain letters" in evidence, and it was of this "belief" that the court said: "It is an opinion which, if rightly formed, could only be drawn from the same premises from which the court and the jury were to determine the cause, and therefore it is improper and irrelevant in the mouth of a witness." We find no error in this ruling.

Dr. Joseph Hering, a practicing physician, then testified that plaintiff came to him in December (the assault having been in September), and further testified, subject to exception, as follows: "I examined Mr. Wheeller, who came to me complaining of a pain in his testicle. I found him to be suffering with an enlargement about the testicle. I suggested some treatment for him, and that if it continued he would have to go to the hospital and have an operation performed. I did not thoroughly diagnose the exact condition, but there was an enlargement of the left testicle. I next examined Mr. Wheeler yesterday morning, and saw that an operation had been performed, from a scar." Upon cross-examination, Dr. Hering testified: "I know nothing of the cause of the trouble." The second exception was taken to the refusal of the court to strike out this testimony. The ground of the objection is that this testimony was immaterial, irrelevant, and hearsay. But if Dr. Hering had not been sworn it would have been a legitimate argument to the jury that the plaintiff had failed to produce the best available evidence of the character and extent of his injury. Upon that point, therefore, his testimony cannot be either immaterial or irrelevant. Nor is it hearsay. Mr. Greenleaf says (vol. 1, § 102, 14th Ed): "The representations by a sick person of the nature, symptoms, and effects of the malady under which he is suffering at the time are original evidence. If made to a medical attendant, they are of greater weight as evidence; but, if made to any other person, they are not on that account rejected." In Fleming v. Springfield, 154 Mass. 520, 28 N. E. 910, 26 Am. St. Rep. 268, it was held that a statement by plain

tiff in an action for personal injuries, made to his physician, as to his symptoms at the time, if made for the purpose of medical treatment and advice, is admissible in his favor, though the interview was only a day or two before, or possibly during, the trial. And in N. P. R. R. v. Urlin, 158 U. S. 275, 15 Sup. Ct. 840, 39 L. Ed. 977, the text of Greenleaf and the case just cited are approved. It will be observed that the only statement made by plaintiff to Dr. Hering was of his suffering at the time, though it was held in Roosa v. Boston Loan Co., 132 Mass. 439, that a physician may testify to a statement or narrative given by his patient in relation to his condition, symptoms, sensation, and feelings, both past and present, and that these are admitted from necessity, because in this way only can the bodily condition of the party be ascertained. We are not required, however, to go to that extent here. It was also held in that case-and we think properly-that this does not extend to the patient's declaration of the cause of the injury. In the case before us there was no such declaration by plaintiff, and Dr. Hering expressly testified that he knew nothing of the cause. We think this ruling of the

court was correct.

The third exception was to the overruling of the special exceptions to the plaintiff's eighth prayer as modified by the court, for the reason that the evidence does not support the prayer. We think there is ample evidence to support this prayer, which lays down the rule for assessing damages so familiar in cases of this character. Five reasons are assigned in support of the special exception. Of these, the first and second fail to specify the particulars in which the proof is supposed to be defective, and need not, therefore, be considered. The third alleges there is no evidence that the plaintiff was disabled or unfitted for pursuing his ordinary occupations; the fourth, that there is no evidence to show that the injury complained of resulted from the alleged assault; and the fifth, that there is no evidence that the medical attention and the operation was necessitated by the alleged assault. Wheeler testified that he had been telegraph operator at Watersville for 17 years; that he was at the time of the assault engaged in handling and shipping baled hay; that on the day following he was obliged to suspend this work and lie down most of the day; that from October following the assault in September, until May, he had not been able to do any manual work; and that when testifying, May 16th, he suffered a great deal of pain from the testicle; also that for the first time in his service there had been complaints about his work as operator. His own testimony shows that the pain in the testicle began with the assault, and continued up to the time of the trial. Dr. Hering's testimony was that, if the enlargement continued, an operation would be necessary, and that on