fied. You have had the opportunity to Baldwin v. Phila. 99 Pa., 170. There is no constitutional provision apobserve his appearance and his manner plicable. The restriction contained in of testifying and you know his interest Sec. 13 of Art. III of the Constitution in the result of this suit. He has testi- does not apply where a salary is fixed. fied that he was actually and necessarily by an ordinance and not a law. engaged in the performance of his duties. for 201 days. If that be so he is entitled to recover $3.00 for each of those 201 days with interest from the date when he made his demand upon the City for payment which he says-and it is not contradicted-was two or three days after they had completed their labors. A limitation is claimed to be found in the Act of May 23, 1889, in clause XIII of Section 3 of Article V. P. L. 289, which reads as follows: (Section 3, Every city of the third class in its corporate capacity is authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by this act: The plaintiff is a competent witness, he is not necessarily a credible witness. The credibility of the plaintiff and of every XIII. To create any office which they other witness in this and every other case may deem necessary for the good govis a question to be determined by the ernment and interests of the City, and jury, and by the jury alone. So much it to regulate and prescribe the powers, is my duty to say to you, but it is my fur- duties and compensation of all such offither duty to say that a witness is presum-cers, in accordance with this Act; but no ed to be credible and that it is your duty ordinance shall be passed increasing or to believe a witness unless there is some diminishing the salary or compensation reason to disbelieve him. of any officer after his election or appointment.) Lehigh v. Meger, 102 Pa. 479. Endlich on the interpretation of Statutes, (Ed. of 1888) § 186. Ihmsen v. Navigation Co., 32 Pa. 156. Stewart, Niles & Neff for appellee. The testimony has all been upon one side. No testimony has been introduced A qualification or proviso in one of by the defendant to contradict the state- these clauses should be read only in the ments made by the plaintiff and the wit- connection in which it stands. This is nesses whom he has called. You have the general rule of interpretation: heard three addresses from counsel in regard to the facts of this case and you have heard what has been said by counsel in regard to the alleged discrepancies in the testimony. You will determine from the testimony how many days the plaintiff was actually and necessarily employed in the performance of his duties and for that number of days you will award him compensation at the rate of $3.00 for each day actually and necessarily employed by him with interest from the date when he made his demand. The jury found for the plaintiff $665.91 with costs of suit. From the judgment entered on this verdict the appeal was taken. V. K. Keesey and R. F. Gibson for appellant. The main question in this appeal is whether or not a City of the third class can change the salary of the office of City Assessor after the election or during the incumbency of the holder of the of fice. It is not a matter of common law. There is no implied assumpsit with respect to such salaries: Whelen's Appeal, 108 Pa. 197. I Dillon Munic, Corp. (4 Ed.) § 230. In the opening words of the Appellant's brief, "the main question in this appeal is whether or not a city of the third class can change the salary of the office of City Assessor after the election, or during the incumbency of the holder of the office." An elaborate argument follows to show that the Act of May 23d, 1889, Article V, section 3, P. L. 289, does not prohibit a city of the third class from changing the compensation of a City Assessor during during his term. Act of May 23, 1889, article V, section 13, P. L. 289." Public, and where witnesses were cross-examined by counsel who afterward filed exceptions to the depositions. Where the claimant is a resident of a city distant from the place where the audit was held, and its counsel neglected to offer any evidence in support of its claim, the report will be recommitted to the Auditor for the purpose of hearing further evidence, the money of the estate being still undistributed. Petition for re-committal of Auditor's report, and exceptions to depositions taken in support of said petition. July 19, 1893. MITCHELL, J.-This case was ruled by the learned Judge below in exact accordance with our decision when it was here before; Devers v. York, 150 Pa. 208. One of the plaintiff's points on that trial was, that "the ordinance of 30th March, 1888, was valid, and being unrepealed at the time of plainGeorgiana Croxall in her will bequeathtiff's election as one of the city's asses-ed $1,000 to a charitable society that "will sors, the compensation therein fixed at give shelter to homeless people at night, three dollars a day could not be lawfully irrespective of creed, color or condition," increased or diminished during the term without in any way naming or designatfor which he was elected," and in re- ing such society. Before the Auditor apversing the judgment we said of the or- pointed to distribute the balance on the dinance that "it fixed the appellant's com- account, the Attorney for the "Phila delpensation, and this could not be changed phia Society for Organizing Charity” apduring his term. Act of 23 May, 1889, peared as a elaimant of said bequest, but Art. V, Sec. 3, cl. 13, P. L. 289." The presented no evidence in support thereof, main contention in that case was upon and the claim was disallowed by the Authe validity of the ordinance, and the ditor. present point therefore was not elaborat ed, but it was necessarily considered and determined. We are asked now to reconsider and decide it differently, mainly upon argument drawn from the form of the clause, and its position in a long act. We see no sufficient reason why we should do so. The proviso refers in terms to officers elected as well as apJune 19, 1893. BITTENGER, J.-The pointed under ordinances, and presum- question of the admissibility of the depoably is of general application. That view sitions, in support of the rule, is raised of it is in accordance with the policy in- by the exceptions filed to said deposidicated by the constitution as to the comtions. pensation of public officers, and with the terms of much of the legislation upon kindred subjects. We are not required to be astute in making a departure in Exceptions were filed to his report, and the Court was requested to recommit the dence in support of said claim. same, for the purpose of receiving evi E. Z. Strine and N. M. Wanner for claimant. H. L. & G. G. Fisher for residuary legatees. Though not formally certified by the usual certificate, we think the necessary notary public who took them, with the facts appear to entitle them to be admit ted. this one class of officers from the line of general policy. While the position of a proviso in a statute, has a great an 1 some-notice is given counsel of respondents that A copy of the rule is attached, in which times controlling influence upon the ex-depositions would be taken on behalf of tent of its applicability, yet the inference the petitioner before Thomas J. Hunt, a from its position cannot override its plain notary public, in his office, No. 623 Walgeneral intent. Judgment affirmed. ORPHANS' COURT. nut street, Philadelphia, at the time therein stated. The exception shows that these depositions were taken by the person, and at the time and place named in the rule. On each page of the testimony is stamped the name of Thomas J. Hunt, attorneyAuditor's Report-Re-committal.-Depo-at-law and notary public. It is stated in sitions-Taking of. Croxall's Estate. the notes that George G. Fisher appeared Depositions taken before a Notary Public, in pursu- before the commissioner, for the residu ance of a rule and notice, will be received in evidence, though unaccompanied by the formal certificate, where the caption shows that they were taken by the person at the time and place named in the rule, where each page is stamped with the seal, where the testimony of each witness is followed by the certificate of oath or affirmation and the signature and seal of the Notary ary claimants and cross-examined the witness. No protest was filed by him, against the authority of the examiner to act, or that he was not the person named in the rule. Indeed no objection to the before the auditor. We do not think the proceedings was made, except that a pre- bequest should fail for that reason, withvious time was fixed, at which the coun- out further hearing. The charity is sel for respondents attended and neither the petitioners or their counsel appeared, and no testimony was then taken. At the end of the testimony of each witness the jurat, or certificate of oath or affirmation is attached, followed by the signature, Thomas J. Hunt, Notary Public, with his proper seal of office attached, as provided by the act of assembly, in regard to notarial seals. They are signed by the witnesses. The depositions, we think, are sufficiently certified, especially as counsel for respondents was present at the time they were taken and participated in the examination of the witnesses. Besides the report and notes of the auditor show that the counsel of claimant neglected to produce evidence requir ed before the auditor. It is contended by counsel for the residuary claimants that the court should not recommit the report to the auditor after the negligence and delay shown, unless we should be satisfied that the bequest is sufficiently definite to be executed and to pass the fund to the claimant, "The Philadelphia Society for Organizing Charity." highly meritorious; and inasmuch as the report is still open and the moneys of the estate undisturbed, a hearing may, with propriety, be granted. Of course no unnecessary delay in presenting the case of the petitioner before the auditor will be tolerated. The utmost expedition, consistent with the abilities of the claimant Society, must be practiced. The report is recommitted to the auditor with instruction to hear the proofs in regard to the bequest and claim of the Society, and to adjudicate said claim. A wife executed a testamentary paper in which she declared that certain deposits in banks in her name belonged to her husband; after her death the paper was found with her signature torn off. HELD, the paper being in her handwriting, that it was competent evidence to prove her declarations. D. Q. Ewing for administration. Geo. P. Hamilton for next of kin. F. C. Osburn for claimant. Audit of administrator's account. July 20, 1893. OVER, A. J.-The fund The claim does not appear to us to be for distribution arises from deposits made so entirely groundless as it is considered by the decedent in her name in the Dolby the counsel for the respondents, but lar Savings Bank, Real Estate Savings we are not called upon now, upon the Bank and the Bank of Pittsburgh. There incomplete evidence before us, to deter- is also in the possession of the adminismine the right of the claimant to the trator for distribution an Allegheny fund for the purpose of the charity nam- county riot bond appraised at $1,040. ed in the will of the testatrix. The ques- Alex. R. Gracie, the husband of the detion at issue is whether the Society shall cedent, alleges that the money deposited be granted an opportunity to show its by her was his, that the bond was purright to the legacy, by proof, before the chased with his money, and claims it and au litor, of its character, acts and pur- the whole fund. The deposits in the poses in regard to giving "shelter to Dollar and Real Estate Savings Banks homeless people at night, irrespective of were all made more than six years prior creed, color or condition," from which to the decedent's death, and it is conthe right of said Society to the fund be-tended that as to them the claim is barred queathed may be determined. by the statute of limitations. Whilst the The bequest, being a charitable one, claimant stands in the position of a credishould be sustained, if the evidence shall tor of his wife's estate; McDermott v. warrant it. The Society, as its name Miners Savings Bank, 100 Pa. 288, yet indicates, was organized and acts in Phil- the same disability, to wit, the unity of adelphia, distant from York, where the persons, which prevents a wife from audit was held, and was represented here maintaining an action against her husby local counsel, who for some cause, band, Marstetter v. Marstetter, 93 Pa. which it does not appear the Society is 350, would also prevent a husband from accountable for, produced no evidence maintaining an action against his wife. York Legal Record. Vol. VII. THURSDAY, AUG. 17, 1893. No. 10. belonged to the claimant. If then he did not intend to make a gift of it to his wife, his claim as to these deposits must be sustained. He was for a number of His remedy was therefore postponed until years steadily employed as manager of her death, the statute would not begin to oil refineries in the suburbs of the city, run until then, and his claim is conse- where he resided, and it was inconveniquently not barred by it. For the pur- ent for him to visit the banks. He gave pose of showing that the monies deposited his wages to his wife who deposited them. in bank belonged to the claimant, he and seems to have attended to all outside proved declarations made by his wife to business for him. She gave as reasons different persons to the effect that it for depositing it in her name to one belonged to her husband, and also offered witness, "Because Mr. Gracie was not a testamentary paper in her handwriting, much of a business man." "That he dated February 11, 1875, in which she never had time to go with it." To provided as follows: "the money i have another, "That Mr. Gracie had no busiin my name in the Dollar Saving Bank ness qualities and she had to attend to is money belonging to my beloved hus- this money and look after it, and if she band for it is his hard earning therefore didn't attend to this business that they it is all his and i wish him to have it all would have nothing in no time." There And the money i have in my name in the is no evidence that she ever claimed Real Estate Saving Bank is all his he these deposits were her own, but both in allways gave me the money and i saved her oral and written declarations she it for him and it is all his hard earnings acknowledged it was his money and in Also the mortgage which i hold in my her writing expressly states that she name against George Bauman also is the saved it for him. The evidence is money which my beloved husband sufficient to rebut any presumption of gift worked hard for and gave it to me to buy and is much stronger that that adduced the mortgage and let me have it in my in McDermott's Appeal, 106 Pa. 358, name and i wish him to have it all." where a husband's claims against his This paper was signed by the decedent wife's estate for money deposited in her and witnessed by a domestic living with name was sustained. His claim must her at the time; but when it was found therefore be allowed. after her death her signature was torn The only evidence as to the Allegheny off. For this reason it was objected to it county riot bond is that of George Gracie, incompetent evidence. Whilst could not take effect as a will, there is son of the claimant. He testified that the no apparent reason, it being in the hand-decedent, who was his stepmother, told writing of the decedent, why it is not husband's money, and that he understood him she purchased this bond with her competent proof of her declarations. It husband's money, and that he understood is conceded that oral proof can be made from her that it belonge 1 to him. Whilst of them, and in it we have much better the evidence as to the claimant's right to it is not as satisfactory as to the deposits, proof, to wit, written evidence. This paper, in connection with the other evi- vet, taking it in connection with all the circumstances of the case, it seems dence in the case, shows very satisfactorily that all the monies deposited in the sufficient to establish his claim. On the Dollar and Real Estate Savings Bank death of the decedent's father in 1872 prior to February 11, 1875, belonged to the claimant. The only deposit made. after that date in either was one of as she inherited one-fifth interest in a house and lot on Fourth avenue, and in 1875 she purchased, with her husband's $1,267 on September 18, 1879, in the money, the other four-fifths interest, and also a ground rent, the title being taken Dollar Savings Bank. The evidence in her name. The net rental of this however shows that this was a transfer property was probably four hundred dolfrom the account of George Gracie, son lars per year. The claimant was not of the claimant, of monies which he had employed for some years prior to his deposited for his father. It is clear there- wife's death, and no doubt a portion of fore that the money here for distribution the rents were applied to the support of arising from the deposits in these banks the family. The deposits in the Bank of Pittsburgh were all made subsequently | last proviso; 1st Purdon's Digest, page to 1875, and probably some of the rents 861, place 92, &c., requiring the judgwere included in them. The balance in ments to be forthwith transmitted to the this bank however was only $349, not Prothonotary of the Court of Common sufficient to pay the expenses charged in Pleas to be entered on his docket, which the account for the administration of her was not done, though it appears from the And as the fund for distribution | justice's transcripts produced before the is not sufficient to pay the amount found auditor that the defendants, being executo be due the claimant, irrespective of his tors, had complied with the said proviso claim, for these deposits, it is not neces- on their part. And H. L. Fisher, Esq., sary to pass upon the question raised as of counsel for Mrs. Kennedy, further to them. claims that as no claims or creditors had been preferred, the net balance on the account after deducting costs of audit is to be awarded to her. Kennedy's Estate. vance. HELD, that all of this did not prejudice th ticipate in the distribution by the Auditor. It is admitted under objection. not evidence by reason of irrelevancy that Daniel Wonders offered on behalf of Claimants brought suit before a Justice of the Peace against decedent's executor and obtained judgment. Defendants appeared before the Justice, after judgP. S. Bowman, Esq., the said justice, to ment, and declared that they had not sufficient assets hand over to H. L. Fisher, Esq., of to satisfy the same. Transcripts of these judgments were taken to the Prothonotary's office, who refused Counsel for accountant, the transcripts in to enter the same because his fees were not paid in ad- question, which were refused on the fights of the plaintiff's in these judgments to par- ground, as then stated to Mr. Wonders, that said counsel was not the proper party to offer the papers and that he had nothing to do with them nor authority to receive them, that the Prothonotary was the proper person to receive them; he said that had been done and the Prothonotary refused to receive them. Exceptions to Auditor's report. The said Daniel Kennedy, the testator, died on the 17th Jay of October, A. D. 1891, having first made his last will and testament dated the third day of September, A. D. 1891, and duly probated in the Register's office of York county on the 27th day of October, A. D. 1891, and recorded in Will Book G. G., No. 7, on page 488, whereby he bequeathed unto his wife, Clarissa Kennedy, all his property, real, personal and mixed absolutely, etc. H. L. Fisher, Esq., objects to the claims presented being allowed. W. A. Miller, Esq., presented a number of judgments obtained against the accountants or any of them being allowed, for the following reasons: First. To the allowance of any part of the costs made by the claimants in the several suits brought for the recovery of the claims, inasmuch as each of them knew before suits brought that there were not sufficient assets to pay said several claims in full and that that said suits were unnecessary, vexatious and oppressive. Second. Because there were no compliance on part of the claimants or any of them by the Justice or Prothonotary with the fourth section of the act of 1810, The plea entered was not in accordance with the facts that there were assets at the time the plea was made and entered, that there is no evidence before your auditor that the suits were vexatious and oppressive, that the costs made accrued before said plea was filed, that inasmuch as your auditor has been appointed to make distribution of such assets, the necessity of filing such transcripts in the Prothonotary's office for the purpose of having the assets ascertained and audited becomes unnecessary. The Auditor allowed the claimants to share in the distribution. To his report the following exceptions were filed: I. The auditor erred in finding that the "pleas of" want of assets in the several suits before Justices Bowman and Sell, were not in accordance with the facts; the pleas or "declarations" by the executor's defendants, after judgment in each case being that there were not sufficient assets to satisfy such judgment, which was true, as their account filed and confirmed showed a balance of |