GARMAN, J.-The plaintiff brought suit against the defendant before Thomas A. Buckley, Justice of the Peace. As stated in the transcript the claim was "for the sum of $30; being a balance due on an agreement entered into March 20, 1915, whereby the defendant agreed to pay the sum of $5 per month to the plaintiff for a right of way over the land of the plaintiff until such time as all the marketable timber shall be cut and hauled away." The judgment of the Justice of the Peace was appealed from by the defendant and the transcript of appeal filed to the above number and term.

The plaintiff then filed a statement and the defendant moved to strike off the pleading, setting forth to sustain his motion, among others, the following specification:

2. The plaintiff's statement is not divided into paragraphs numbered consecutively as required by law.

This exception is sustained; the others are dismissed. The statement filed is stricken from the record.

The plaintiff is permitted to file within thirty days a new statement complying with the Act of Assembly of May 14, 1915, P. L. 483.

O. C. of

Life Estate with Power to Sell-Note for
Money Borrowed.

Where a decedent left by his will all of his property to his widow for life with power to use if necessary for her maintenance, a promissory the principal, or sell or encumber the real estate note given by her for money borrowed will not be paid out of his estate after her death. Adjudication.

Coyle Keller for accountant.
D. McMullen for claimant.

June 14, 1917. SMITH, P. J.-Philip Hahn died testate January 14, 1894. The important paragraph of his will is as follows: "Item. I give, devise and bequeath to my wife, Sabena Hahn, all my estate, real, personal and mixed, for and during the term of her natural life, or so long as she remains my widow, with full power and authority, however, to use, during her widowhood, not only the income thereof but also of the principal, and to sell any or all of my real estate, either at public or private sale, or borrow money thereon by mortgages or judgments, in case she finds it Allegheny Co. necessary to so use of the principal of my estate, sell or incumber my real estate in order to maintain herself comfortably; of which necessity she alone shall be the judge."

ORPHANS' COURT

Daerr's Estate. Practice, O. C.-Failure to Advertise Notice of Letters Testamentary--Sustension of

Distribution until Publication.

Notice by publication of the grant of letters testamentary to an executor not having been given as required by law, the court ordered that distribution be suspended, notice of the letters be immediately published and the account be republished at the expiration of one year from the first publication of the letters, unless the distributees should give refunding bonds.

Suspension of distribution until publica

"Whatever may be left" after the death of testator's widow he gave to his children, Philip, Peter, George, Wilhelm, Mary and Annie. George died in 1910, before the widow, leaving a widow, Emma P. Hahn, and two children Edith and John. The fund distributing is the proceeds of sale of real estate. Whether or not the widow found it necessary to use of the principal and to do so sold real estate does not appear, nor is there any evidence that she enWilliam M. Ewing for Accountant. cumbered the real estate; therefore, the balance after deducting additional credits Scott Purdy for Exceptant. amounting to $37.65 is distributable November 2, 1916. PER CURIAM.- amongst testator's living children and It appearing to the court that notice George's children. As there was no seisin by publication of the letters issued to the in George during coverture his widow can executor was not given as required by law, not participate. it is ordered that distribution be suspended, that notice of the letters be immediately

tion.

Cyrus Hollinger asks to be awarded $635.66 for money lent Sabena Hahn, of

which $609.01 is evidenced by notes given The foregoing is a new provision and by her. The proofs clearly establish her vests the court with a discretion in minors' indebtedness, but no reason has been ad- estates of this amount. In view of the fact vonced why it should be paid out of the that the mother in this case, who is the testator's estate. If it had been necessary natural guardian, is keeping her children for her to draw on the corpus of the life together and is maintaining them and seems estate for her comfortable support, she had to be an entirely fit person, it is a proper the power to encumber the real estate which exercise of the discretion conferred to direct she did not do. An ordinary debt con- the legacies to be paid to her, the same to be tracted by her or a note given did not en- expended by her for the benefit of the cumber the testator's real estate. If it had minors as in her judgment may seem to been the intention so to do, it would have their best interests. been easily accomplished by her executing a mortgage or a judgment. No doubt the claim is a just one and there is nothing to prevent Hollinger from presenting it for payment out of the estate of Sabena Hahn, deceased.

Mary Hahn, a daughter, asks to be paid $324.00 for nursing and serving her mother but she was unable to prove that there had been a contract, and, therefore, the claim

will not be entertained.

Distribution was made accordingly.

O. C. of

Allegheny Co.

Dailey's Estate. Guardian― Minor's Estates - Legacies · Mother-Act of June 7, 1917, P.L. 447. The Fiducinries Act of June 7, 1917, P. L. 447, vests the Orphans' Court with a new discretion in minors' estates, so that where the legacy of four minor children amounted to $50 each, the court direct that these legacies be paid direct to the mother without the appointment of a guardian. Sur audit.

Langfitt McIntosh for accountant. September 28, 1917. MILLER, J.-Testator gave to each of his children a legacy of fifty dollars; four of them are under age. Their mother, who is the residuary legatee and administratrix, has placed their shares in bank to their credit. The children are living with her and so far as the record goes she is providing for them. No guardian has been appointed.

Sub-division b, section 59, of the Fiduciaries Act of June 7, 1917, P. L. 447, provides: "That where an estate of a minor shall be of the value of one hundred dollars or less, the court may in its discretion authorize payment or delivery thereof to the natural guardian of the minor or the person by whom the minor is maintained, without the appointment of a guardian by the court or the entry of security."

QUARTER SESSIONS
Com. v. Degen.

Summary Conviction--Sunday Sales--Cigars
and Tobacco.

On an appeal from a summary conviction for violation of the Act of April 22, 1794, 3 Sm. Laws. 177, where the record shows no fatal defect of

procedure, and the sale of cigars on Sunday
clearly proven, the judgment of the Alderman
must be affirmed.

Appeal from summary conviction.
R. P. Sherwood for appellant.
J. Edgar Small for appellee.

December 17, 1917. WANNER, P. J.—
This was a conviction of the defendant

under the Act of April 22nd, 1794, 3 Smith
Laws 177, which forbids all wordly em-
ployment on the Sabbath day except only
certain works of necessity therein spécified,
which may be performed within certain
hours of said day. It is conceded by de-
fendant's counsel that said Act is in full
force and effect in this commonwealth, and
that the record of this case discloses no fatal
error of procedure therein. The only re-
maining question, therefore, seems
to be
whether or not the sale of tobacco, cigars
and candy were works of necessity or char-
ity, or otherwise, within the exceptions
specified in the Act.

It has repeatedly been held that sales of tobacco and cigars on Sunday are a violation of the statute in question; Com. v, Hoover, 25 Pa. Super. Ct. 133; Com. v. Moses, 8 York Leg. Rec. 60: Baker v. Com., 5 Pa. C. C. R. 10.

It is unnecessary, therefore, to determine whether or not the sale of candy was also a violation of the statute, as the sale of the cigars is sufficient to sustain the conviction.

The judgment of the Alderman is affirmed, and the costs of the appeal directed to be paid by the defendant.

Motion for judgment for want of a suffi- R. R. Co. v. Gibbs Milling Co., 19 Luz. cient affidavit of defense. Leg. Reg. 467.

Without moving to strike off said affi- claim against the plaintiff, and the answer davit of defense under Section 21 of the thereto as an affidavit of defense. Both are

thus made subject to the same rules of pracnected with the breach of the contract comtice as to form, contents and precedure plained of; Bunting v. Hogsett, 139 Pa. thereon, as apply to original statements and 363; Township v. Watson, 116 Pa. 344. affidavits of defense. Under these general rules it has been held When the statement, affidavit of defense, that the wages of idie employees, and simior any other pleading is formally defective lar expenses, during the necessary stoppage and not in conformity with the provisions of of a mill for repairs to defective machinery, the Practice Act 1915, the court should be are recoverable as direct damages for a moved to strike it off. Motions for bills of breach of contract to furnish proper maparticulars, for more specific pleadings, &c., chinery; Revett v. Globe Nav. Co., 123 are no longer proper practice; Cowan v. Pas. 459; Kenyon v. Goodall & Co., 3 Cal. Blair, 65 Pitts. Leg. J. 702; Ehrenstrom 257; Singe: Mfg. Co. v. Christian, 211 Pa. v. Hess, 26 Dist. Rep. 992; Whelan v. Ap-543; Kester v. Miller, 26 N. E. 115; Opplesby, 26 Dist. Rep. 379; Barto v Shaff- tenberg v. Skelton, 85 N. W. 356; Wade ner, 26 Diss. Rep. 957; Sturtevant & Co. v. Haycock, 25 Pa. 392. v. Regan & Hornell, 26 Dist. Rep. 169; A proper amount of "Overhead expenses" Keiser v. Berks Co., 26 Dist. Rep. 839, has been held recoverable in such cases, in Wilkesbarre F. & C. Co. v. Brennan, 26 addition to the wages actually paid to emDist. Rep. 940 (as to defendant's counter ployees during the necessary stoppage of claim). work for repairs; Allen & Co. v. Prov. I. & S. Co., 63 Pa. Super. Ct. 459.

No motion to strike it off having been made in this case, we are of the opinion that The item of loss in reduced production the proper procedure is to simply overrule of paper is less definite than the others and and refuse the plaintiff's motion for judg- would seem to indicate loss of profits as an ment, leaving the parties to such further element of the damages claimed. But if so, pleadings as are provided for by the Prac-it is not necessarily excluded as special and tice Act of 1915. indirect under the clause of this contract relied upon by the plaintiff.

At the hearing of this motion the argument was not upon the effect of the Practice In different jurisdictions profits lost as Act of 1915, but upon the question whether the direct result of a breach of contract, if or not the defendant's counter claim is definitely fixed in amount, and not merely barred by a clause in the contract in suit speculative in character, are held recoverable which provides that plaintiff shall not be as direct damages; Wade v. Haycock, 25 held liable for losses resulting from fires, Pa. 382; Hunt v. Or. & Pac. R. R. Co., strikes, or other causes beyond its reasonable 36 Fed. Rep. 481; Clyde Coal Co., v. Ry. control, "nor in any event for any special, Co., 226 Pa. 399; Gore v. Melsby, 35 S. indirect, or consequential damages whatso- E. 315; Wilson v. Wernwag, 217 Pa. 82; ever." Coal & Coke Co., v. Pa. R. R. Co., 229 Pa. 68; Ellsworth v. O'Keefe, 26 Dist. Rep. 277

Under this stipulation of the contract, direct damages only would be recoverable by the defendant for any breach of it that might occur.

The general rule of law is that only such losses and expenses are recoverable as direct damages for the breach of a contract as are the natural and proximate, or immediate results of such breach; Jones, &c., Steel Co. v. Wood & Co., 249 Pa. 433; Rakestraw v. Woodward, 25 Pa. Super. Ct. 169; Southern Ry. Co. v. Coleman, 4 So. Rep. 837.

They are described as such as would probably be within the contemplation of the parties, as naturally following a breach of the contract, and must be capable of adjustment by some recognized legal standard. They must not be results contingent upon other intervening causes not directly con

From these and similar authorities we reach the conclusion that the items of defendant's counter claim, or set off, are not of the "special, indirect or consequential" class of damages for which the plaintiff is not to be held liable under the above quoted clause of the contract in suit.

Even if the items for loss on production of paper, should be excluded, as speculative, the other two exceed in amount the entire demand of the plaintiff.

We therefore find no sufficient ground in this view of the case on which to sustain a judgment for plaintiff for want of a sufficient affidavit of defense.

The plaintiff's motion for judgment for want of a sufficient affidavit of defense is overruled and refused.

C. P. of

Montgomery Co. gages, where such proceeds are not sufficient to pay both liens and mortgages, must be read in the light of its own facts and with

Yost v. Yeakle

Distribution-Taxes-Liens-Act June 4, especial reference to the repealed legislation,

1901, P. L. 364.

The real estate of defendant was sold upon foreclosure of a mortgage, executed prior o the Act of June 4, 1901, P. L. 364. Claims for Town

ship, School and County taxes were filed with the Sheriff. The Sheriff distributed the entire proceeds, which were less than the amount of mortgage to the plaintiff. HELD, upon exceptions to the Sheriff's distribution, that the plaintiff's mortgage had priority in distribution of the fund.

Exceptions to Sheriff's Distribution. E. F. Slough, for Plaintiff. H. N. Stahlnecker, for Exceptant. September 15, 1917. MILLER, J.-The plaintiff's mortgage of $2500 was executed and recorded in 1891. On its foreclosure the sheriff sold the real estate on June 6, 1917, for $600. The real estate was a store and dwelling combined.

which had been special to Philadelphia and Delaware Counties. That case finally settled that the act of 1901 did not change the existing law in those counties, cities or districts where taxes and municipal claims were first liens prior to its passage, as was the case in those counties.

Such, however, had not been the law in Montgomery County prior to the passage of the act. President Judge Swartz said in 1896 in Fryer v. Metz, 12 M. L. R. 108: "We are not aware of any act of Assembly which makes taxes assessed on seated lands in Montgomery County a lien thereon. In the absence of any statute declaring them to be a lien they become no more than a personal charge against the owner or occupier of the land, ****

The act of 1901, in its section 2, provided in part that: "All taxes which may On December 30, 1916, the township of be lawfully imposed or assessed on any propSpringfield, in which the mortgaged prem-erty in this Commonwealth *** shall be ises are located, filed in the office of the and they are hereby declared to be a first Prothonotary a claim for township taxes, lien on said property ***; and such liens assessed and levied against them, amounting shall have priority to and be fully paid and to $40.91 and, on the same day, the school satisfied out of proceeds of any judicial sale district of the township filed therein a simi- of said property before any other obligation, lar claim of $27.99 for school taxes. Be-judgment, claim, lien or estate with which fore the sale the treasurer of the township the said property may become charged, or also lodged with the sheriff claims for 1915 for which it may become liable ***” and 1916 county taxes amounting to the total sum of $8.62.

The sheriff distributed to the plaintiff the entire proceeds of sale, remaining after the payment of costs, and the exceptions filed to his schedule raise the single ques

tion:

The late Judge Weand, in Lukens v. Katz, 27 Pa. C. C. 596, soon thereafter, decided that a mortgage recorded before the passage of the act was not affected by it and took priority over the lien of taxes because the legislative intent was thereby to make future taxes liens and only liens as If the fund realized by the sheriff of against other future encumbrances, thus Montgomery county upon a sale of real avoiding any question as to the disturbance estate in foreclosure of a mortgage created or interference with a lien which had atprior to 1901 amounts to less than is re-tached prior to the passage of the act, and in quired to pay both the judgment on the mortgage and taxes on the mortgaged premisee, which were assessed and levied after that year, which of the two has priority in the distribution of the fund?

Caner v Bergner, 27 Pa. Sup. Ct. 220 which was another Montgomery County case, it was decided in 1905, that "a claim for taxes assessed and levied by a township subsequent to the passage of the act of June 4, 1901, P. L. 364, has no priority over a mortgage executed and recorded prior to the passage of the act, in the distribution of the proceeds of sale of real estate on levari facias."

Haspel v. O'Brien, appellant, 218 Pa. 146, which decided that claims for taxes assessed and filed as liens of record after the passage of the act of June 4, 1901, P. L. 364, have priority over mortgages made before that act, in the distribution of the See also in re: Prince & Walter, 14 P. proceeds of sheriff's sales under the mort-D. R. 172.