HELD, that the claim could not be sustain- Suit for wages before alderman-Cered, as if the shed was an addition to a tiorari Rules governing employees completed building the lien should have Not binding on Minor.-The evidence been filed for such addition.-Steyert's upon which a judgment is entered by an Est., (Montgomery O. C.) 10 Montgom- alderman need not be set out on the record, as there can be no reversal for an erery Co. Law Reporter 75. Railroads-Dangers by-Streets. In ror in his judgment upon the facts or the estimating damages caused by the con- law. In a suit before an alderman for struction of a railroad the jury can take wages the judgment for plaintiff will not into consideration the purpose for which be reversed on certiorari, because the althe land was used, its adaptability for fu- derman's record does not set forth by ture uses, and the probable necessity for whom or when the work was done or the future use of the land in connection with kind of evidence by which the claim was the business for which it was intended; sustained. Rules for governing employees and if the power or ability to expand the signed by a minor are not binding on him. business gives the land an additional Shultz v. Slaymaker, Barry & Co., (Lanvalue, this will be the subject of compen-casterC.P.) 11 Lancaster Law Review 148. sation. The opinion of experts upon this Widow's appraisement-Desertion of question is competent; and although a wife by husband, who marries again.witness may not know market values, yet Where a married woman was deserted by if he has knowledge of the property and her husband, who subsequently married how it is affected by the construction of again and died while living with the secthe railroad, he can testify as to depreci-ond wife, and the first wife was not diation. Where a borough has ordained a vorced from him, but continued to supstreet, but before it is opened a railroad port herself and their children, he makcompany appropriates the land, the rail- ing no provisions for her, and was willing road company will be held liable for ali to live with him, but was prevented from the damages sustained, irrespective of the action of the borough.-Spring City Gas Light Co. v. Penn'a Schuylkill Valley R. R. Co., (Montgomery C. P.) 10 Montgomery Co. Law Reporter 69. doing so by his illegal acts, the family relation still existed between them in contemplation of law and followed him to his new home, and the first wife, therefore, and not the second, is entitled to the $300 Statute of limitations-Lunacy com- exemption.-Grieve's Estate, (Lancaster mittee accounts-Audit of.-The confir- C. P.) 11 Lancaster Law Review 149. mation of an auditor's report distributing a balance in the hands of a committee of a lunatic, as shown by one of his triennial statements in which the distribtution is made without objection to a claim then barred by the statute of limitations, is not such a conclusive adjudication of the liability of the lunatic upon the claim, as will preclude him from pleading the bar of the statute in an action at law against him, after being restored to reason, or in audit, distributing the balance shown to be in the committee's hands by the final account.-In Re Raeder, (Luzerne C. P.) 7 Kulp 275. Will-Construction of-Life estate.Testator directed as follows: "I direct that my son shall have for his own use and occupancy during the period of his life my home farm, on which I now reside, situate on the Springhouse and Hilltown turnpike, near Montgomery Square, together with all the stock and appurtenance, the farm to be maintained in its present state of fertility and repair by my said son, and at his death the use and occupancy to be continued to his issue, if he shall so have; and if none, then to the next of kin, and so on as long as the laws of this commonwealth will permit." Salaries of county officers and their HELD, that the will gave a life estate to clerks.-Under the act of March 31, the son, and after his death an estate in 1876, the county is not liable to the depu- fee to the son's issue, and in default of ties and clerks of county officers, whose such issue, to the next of kin; and that salaries have been fixed by the board con- by the operation of the rule in Shelley's stiuted for that purpose, on a demand for Case, and the act of April 27, 1855. P. additional compensation for extra services L. 368, the son took an estate in fee.rendered out of office hours.-Russell v. Armstrong v. Michener, 10 Montgomery Luzerne Co. (Luzerne C. P.) 7 Kulp 279. | County Law Reporter 65. York Legal Resord. Vol. VII. THURSDAY, MAY 3, 1894. COMMON PLEAS. Eppleman v. Bott. No. 47 Judgment Married woman-Surety for husband's debts. whilst she was then a married woman, she bought from Emanuel Eppelman, of said Jackson township, certain real estate, and which said real estate was duly conveyed to her on or about said day by the said Emanuel Eppelman; that at the time of said conveyance she executed her judgment note to said grantor in the sum of fifteen hundred dollars ($1500.00) in B., a married woman, purchased real estate part payment of the purchase money of from E., giving as consideration her judgment the said real estate, to wit, the sum of note. At the same time she signed another two thousand dollars ($2000.00); and judgment note for $500 in favor of E., which paid to him the sum of five hundred dollatter note was, she claims for a debt due by lars, in cash; that on the same day she her husband to E. This note was executed by B. without any knowledge of its character, al- signed another judgment note in favor of though there is no evidence to show that she is said Emanuel Eppelman in the sum of an illiterate woman, or asked to have the note five hundred dollars, a copy of which said read, to her. After the death of E., and B.'s note is hereto attached and made part of husband, E.'s administratrix entered said judg- this petition, under a misapprehension of ment for $500 whereupon B. presented her petition to have the same stricken off. HELD, fact, the object, tenor and effect of which that the petition must be granted. note was not made known nor explained to her at the time of signing the same; that since the signing of said latter note of five hundred dollars, both her husband and Emanuel Eppelman have died; that letters of administration on the estate of said Emanuel Eppelman have been duly granted to Caroline L. Eppelman, and that since the granting of said letters of administration the said administratrix has caused the said judgment so as aforesaid given to Emanuel Eppelman to be entered of record in your Honorable Court to No. 319, August Term, 1893, and further had caused to be issued thereon, an attachment execution to No. 41, October Term, 1893, directing the Sheriff of York County to attach and levy the amount of said judgment in the hands of Michael Bott, who is a creditor of your petitioner. In the absence of any evidence of misrepresentation or fraud in procuring her signature, the judgment can not be opened on the ground that she was ignorant of the nature and character of the note. With the exception of being unable to convey or mortgage her real estate without the consent of her husband, and his joinder therein, and inability to become accommodation endorser, guarantor or surety for the debt of another, a married woman stands upon an equality with other persons capable of contracting, as regards her rights, powers, obligations and liabilities, in relation to contracts. To say that a married woman is liable on a note given for the debt of her husband under circumstances such as are shown in this case, would be to abrogate the proviso of the Act of 1887, and destroy the only protection remain ing for the property and estates of married women from the overshadowing influence of their husbands and their rapacious creditors. To establish a ratification of such a note, after the death of her husband, the promise must be clear and distinct, and the recovery must be on the new promise. Petition to open judgment, and let defendant into defence. The petition of defendant in this case The petition of defendant in this case is as follows: To the Honorable, the Judges of the Your petitioner further represents that, at the time of the signing of the said note, she was not made acquainted with the fact that she was signing a note or husband; that since the signing of the obligation to secure the debt of her said said note of five hundred dollars she has learned that the same was given for money borrowed by her husband, Harry G. Bott, from the said Emanuel EppelThe petition of Ella A. Bott, respect- man; that although her name appears fully represents :-That she is the widow first on said note, she never received any of Harry G. Bott, late of Jackson Town- consideration therefor, and that no part ship, York County, Pennsylvania, deceased; that on or about the 6th day of April, 1892, whilst her deceased husband, Harry G. Bott, was still living, and of the sum named therein ever came into her possession or was used or applied by her to her separate use, but was for the sole use of her said husband. Your petitioner further represents that only since the death of said Emanuel Eppelman was she made aware of the existence of the said note of five hundred dollars, as an obligation against her for the debt of her husband, she supposing that all papers signed by her on the date which said note bears, related exclusively to the sale and conveyance of the reai estate hereinbefore referred to. and obligations of married women under ******** Your petitioner further represents that she has been informed and verily believes that she is not liable to pay said note or any portion thereof, by reason of being a married woman at the time of signing the same, and by reason of exemption by law from becoming surety or guarantor for debts contracted by her said husband while she was a married woman, and she therefore prays your Honorable Court to of no use to cite decisions made before order a stay of all further proceedings on the passage of the law to show that this said judgment note and to grant a rule on law is not to be obeyed. They were a said plaintiffs to show cause why said consequence of the state of the law as it judgment should not be opened and set then existed, but that condition of the aside as to her, and to grant to her such law is now abrogated and a new condition other and further relief as to your Hon-prevails, with new rights, new duties, ors may seem meet and proper, and as to justice appertains. And she will ever pray, &c. ELLA A. BOTT. new liabilities, new obligations much more in accord with the teachings of common sense and practical justice, than before. It is the plain duty of the courts Geize, Ziegler & Strawbridge for mo- in this commonwealth, to enforce the tion. E. W. Spangler, contra. new law just as we find it and according to its plain meaning and obvious intent." February 26, 1894. BITTENGER, J.- The only restrictions upon the powers The defendant, above named, Ella A. conferred by the act of 1887 are, that Bott, in this case asks the court to strike a married woman shall have no power to off the said judgment, or open the same mortgage or convey her real estate unless and let her into a defence, for two rea- her husband joins in such mortgage or sons specified, namely: 1. Because she conveyance; and the additional provision was induced to sign the note and warrant in the second section "that nothing in upon which the above stated judgment this act shall enable a married woman to was entered, by a misrepresentation of become accommodation endorser, guarfact and the concealment, from her, of antor, or surety for another." With the the tenor and effect of the said note and warrant; 2. Because the same was given by her as surety for, or guarantor of the debt of her husband, Harry G. Bott, now deceased, which fact she only discovered after the death of her said husband. exceptions here named, a married woman stands upon an equality with other persons capable of contracting, as regards her rights, powers, obligations and liabilities, in relation to contracts. The application of the well settled law The law applicable to married women, upon this question to the case in hand, involving their ability to execute, and ob- under the evidence, makes it plain that ligation upon a contract, and especially the eqitable relief here invoked cannot notes and judgments, is very clearly stat- be granted for the first reason specified, ed by Green, Justice, in the opinion of the to wit: misrepresentation and ignorance court in Camp v. Horne, 158 Pa. 508. of the nature and character of the note In that case is shown the advance steps and warrant. taken by the Supreme Court in constru- There is no evidence whatever of ing the law relative to the rights, powers misrepresentation or fraud in procuring a note for some money he had given said Bott, church money, "and if everything goes right when they settle that note he would favor her even more, either drop part of it, or drop all of it." the signature of the petitioner to the that there was no money paid there that judgment note in question. Neither is day. These facts were proven by the there any evidence that she read or re- testimony of P. M. Strausbaugh, Esq., quested the note to be read before affix- and not contradicted. ing her name to it. P. M. Strausbaugh, Jacob C. Rutter, a brother-in-law of Esq., who wrote the note, says he thinks petitioner, testifies that Emanuel Eppelhe read the note to her, before its execu- man, on the day of the funeral of Harry tion, but he is not certain. It is not shown G. Bott, on July 4, 1892, said to him, that she is illiterate. Indeed her signa- the witness, in a conversation between ture to the note shows her to be a lady of them, that he had given Harry G. Bott education and intelligence. Even an some church money; that he referred to illiterate person must require a written obligation to be read or explained to him before he signs it, or he cannot avoid the obligation because it is other than he thought it to be; Johnston v. Patterson, 114 Pa. 39; Weller's Appeal, 103 Pa. 594. | Horace Brillinger, petitioner's brother, Is the petitioner entitled to the equit- testifies, substantially, to the same conable relief sought, because the note and versation, with Emanuel Eppelman, on warrant were given, by her, as surety to the said day of the funeral, and when, for secure the payment of her husband's his sister, he sold her real estate, the one debt to Emanuel Eppelman, the payee tract to Emanuel Eppelman for $1,487.named in the obligation? 50, after the death of Harry G. Bott, he, The evidence shows that on the 6th Eppelman, surrendered to the petitioner day of April, 1892, the date of the note the $1,500 note, refusing to take any in question, the parties, viz., Emanuel change; and that in reference to the $500 Eppelman and the petitioner and her note, said he would leave that until he husband, Harry G. Bott, had a business got his affairs straightened up at bank, transaction in the presence of P. M. and if he could get along without that Strausbaugh, Esq., which consisted of the conveyance of two tracts of land, situated in Jackson township, York county, Pa., by Emanuel Eppelman to the petitioner, Ella A. Bott, for the consideration named in the deeds, of $2,000; that Mr. Strausbaugh, the scrivener, after the execution and delivery of said deeds of conveyance, at the request of Emanuel Eppelman, the grantor, drew up a note for $1,500, for the purchase money of said real estate, which was signed by Ella A. Bott, the grantee; that a few minutes afterwards, at the same request, he prepared a note for $500, the note in question, and that upon the scrivener asking why the whole amount was not included in the first note Eppelman said the $500 was church money that Harry Bott had "and if he lives and everything goes right, we will fix this some day;" that the petitioner, Ella A. Bott, was in the kitchen at the time of the conversation between Strausbaugh, the witness, and Emanuel Eppelman, and that she was not informed that the note was for church money; that nothing was said in her presence as to what either of the notes that day executed by her were for, and money, he would drop it, or at least part of it; that in subsequent conversations, Eppelman said all that he owed him yet was $500, church money. Frank Geise, Esq., testifies that he was, generally, attorney for Emanuel Eppelman, did all his business, but was not consulted about this note or this matter; that on one occasion when Emanuel Eppelman was in the witness' office said Eppelman said he had a judgment note against Ella A. Bott for $1,500, purchase money due on a sale of property conveyed, by him, to her, and also another note given by Mr. and Mrs. Bott for $500, given by them, for church money, in addition to the $1,500. The only evidence to rebut that of the petitioner is the testimony of Caroline Eppelman, administratrix of said Emanuel Eppelman, deceased, her three daughters, Emma Eppelman, Mary Crouse and Jane Eppelman, and E. W. Spangler, Esq. The testimony given by Caroline Eppelman and her three daughters above named, is to the effect that on the 7th day of July, 1893, the petitioner, Ella A. Bott, was at the house of Caroline Eppelman; near the property and house of the Jacob Rutter was recalled on behalf of the petitioner and swore that he was present at the conversation testified to by E. W. Spangler, Esq., at his, witness' house, and the petitioner said she had signed the note, and that it had to be paid. petitioner, and in their presence, said: $500 note was given by the petitioner, 'She was only glad the Uncles never lost for the church money owing to Emanuel anything by Harry; that she owed $500 Eppelman, by Harry G. Bott, is the peyet, and that's up in the house there, and titioner liable on said note, under the I'm going to pay it, or I intend to pay it." decisions heretofore quoted and considE. W. Spangler, Esq., testifies that a ered? She is only liable in the event of time not specified, after the death of her it being established as a payment of her husband, in an interview with the peti- husband's debt by her, and not an oblitioner, she said she owed the $500 note, gation of suretyship for his debt. She is and that it would be paid, she thought, not, and cannot be bound, as we have the following week; if not, at least before seen, as a guarantor or surety. CerApril. tainly a married woman may pay her husband's debt, and it has been decided by Judge Arnold, in Harrar v. Honey, 2 Dist. Repts. 375, that the giving of a note by a married woman for the debt of her husband under circumstances such as are shown in this case, is a payment of the debt, extinguishes it, and that therefore the maker of the note is liable thereon, although a married woman. This position of this learned and progressive Judge, who is not only fully abreast with the most progressive jurisprudence of the times, but is a valiant pioneer in the field of progress, if not improvement, in Pennsylvania law, in the past noted and admired for its conservatism, consistency, symmetry and stability, is deemed by us as untenable. If adopted and established, the proviso of the act of 1887, that said act "shall not enable a married woman to become accommodation endorser, guarantor or surety for another," will be abrogated, and legislated away by the courts, and the only protection remaining for the property and estates of married women from the overshadowing influence of their husbands and their rapacious creditors, destroyed. We cannot take this step, until the Supreme Court sets the pace. Ella A. Bott, being examined, says, in reference to the same conversation, that she did not say to Mr. Spangler that she owed the note and was going to pay it, but that she then said in said conversation "I suppose I will have to pay it because I signed it." The testimony shows that the actual consideration for the real estate conveyed by Emanuel Eppelman, instead of being $2,000, as written in the deeds, was $1,500; that the $500 note in question, bearing even date with the $1,500 note, given for the purchase money, was for church money gotten by the husband of the petitioner from Emanuel Eppelman, and for which her said husband was indebted to Emanuel Eppelman, at the time of the execution of said note. The testimony of Caroline Eppelman and her daughters, that the petitioner said in the conversation mentioned by the witnesses, "that she owed the $500, and that it was in the house and she intended It must be remembered that Eila A. to pay it," is not inconsistent with the Bott is joined by her husband in the note testimony on behalf of the petitioner. It in question. Although she appears on does not show or tend to show that said the note as principal, she is, in fact, but $500 note was for the balance of the pur- surety for her husband's debt, and in our chase money named in the deeds. The opinion, is not bound without ratification petitioner doubtless meant, when she said since her husband's death. In this event the $500 "was in the house there," that the property was the intended means of payment, that the money for its payment would be realized on its sale. This is most probable, for the reason that it does not appear that at that time she had any other estate or property, with which to pay the note. Having reached the conclusion that the the promise must be clear and distinct, to pay the debt, and the recovery must be on the new promise: Real Estate Co. v. Roop. 132 Pa. 496; Nesbitt v. Furner, 155 Pa. 429. The evidence of ratification and promise to pay, after the discoverture of the petitioner, Ella A. Bott, is conflicting. It is not clear and satisfactory. This, as |