Agency may be made out as an implication ance for her; that she never received any money from circumstances as well as by direct proof. Jordan v. Stewart, 23 Pa. 247. McMahon v. Bardinger, 18 WEEKLY NOTES, 112. in payment of the judgment; that she did not know of the satisfaction of the judgment until about December 1, 1893; that Kennedy never informed her that he had entered satisfaction of the judgment, but for the purpose and with intent to deceive and defraud her, paid to her the interest on April 1, 1892, and April 1, 1893, telling her that Where the testimony proves that the money rule to show cause why the said entry of satisfacHerr had paid him her interest; and prayed for a was paid to an attorney on the faith of his sup- tion of said judgment should not be stricken off, posed integrity and financial responsibility, withand that it should remain a lien against Aaron out any inquiry as to whether he was authorized Herr. to receive it or not, a satisfaction must be stricken off. C. Reese Eaby, for appellee. Sergeant v. Martin, 133 Pa. 122. An agent authorized to receive the interest on a mortgage has no right to give a discharge for the principal. Taylor v. Vingert, 33 Leg. Int. 238. A rule was granted, to which Aaron Herr filed an answer stating: That Kennedy was a regular member of the bar on April 1, 1892, when he paid to him the principal and interest of the judgment; that Kennedy was the attorney and agent generally for Sarah Himes and invested money for her; that the money for which he gave the judgment to Sarah Himes he received from G. C. Kennedy by his individual check; that he never saw Sarah Himes; that he always paid the interest on the judgment to Kennedy as her agent; and that he is informed and believes Kennedy was authorized to invest and receive money belonging to Sarah Himes. December 7, 1896. ORLADY, J. To No. 964, of January term, 1886, a judgment was entered in the Common Pleas of Lancaster county, in faDepositions were taken and after hearing the vor of Sarah Himes against Aaron Herr for $500, rule was made absolute. The defendant appeals which was revived by an amicable scire facias to to this Court. No. 154 of January term, 1891, for the same From the evidence of plaintiff in the case, it amount, and judgment entered thereon February appears she was 83 years oid in 1894; Kennedy 2, 1891. was her relative--a grandnephew, and for her had On April 1, 1892, G. C. Kennedy, a member of made a number of important investments, she the bar, at that time in good professional stand- placing the money in his hands, and he issuing ing, received from the defendant the amount of his individual checks to the borrowers, receiving the debt and interest, and placed on record of the interest on the loans and transmitting them to judgment the following satisfaction memoran- her. Her advanced age is sufficient excuse for dum: not remembering several large loans made "This judgment is paid, satisfied and released. through his direction and under his care, as Witness my hand and seal. G. C. KENNEDY, shown by the records. In this case, the defen[SEAL.] dant was not a client of Kennedy's, but hearing that he had control of money to be invested, "Attorney for Sarah Himes." January 27, 1894, Sarah Himes presented her sought him as the representative of the money, and after negotiations, gave, on April 1, 1886, to petition verified by her affidavit to the Court, setting forth: That on February 2, 1891, she ad- Kennedy his judgment bond (in which Sarah vanced and loaned to Aaron Herr the sum of five Himes is the obligee) and received from him his individual check for five hundred dollars. Judghundred dollars; that said Herr gave to her a judgment bond for the sum of five hundred dol- ment was entered in Common Pleas of Lancaster County, and on February 2, 1891, the judglars, which was duly entered; that on April 1, 1891, G. C. Kennedy, a member of the Lancaster ment was revived and its lien continued by an bar, without any authority from her, and without amicable scire facias without knowledge of the her knowledge or consent entered satisfaction of plaintiff. said judgment; that Kennedy was not employed From the inception of the loan until April 1, by her for the purpose of entering satisfaction; 1892, the interest was annually paid by Herr to that he was not authorized to enter an appear- Kennedy. The Court below, in the opinion filed, imposed the whole burden of inquiry upon the structions. It applies to cases where the agent borrower. "Kennedy did not tell him whose has been held out to the world as such by the money it was and he did not know until he saw principal, allowed to exercise enlarged powers the bond. After he saw the bond he knew the from time to time, and his acts therein have been money came from Mrs. Himes. He does not say ratified by his principal: American Life Ins. Co. he ever made inquiry where Mrs. Himes resided v. Shultz, 82 Pa. 46; Schrack v. McKnight, 84 or whether he should pay the money to her. He Pa. 29; Hubbard v. Tenbrook, 23 WEEKLY never asked Kennedy or inquired whether he had NOTES, 351. authority to receive the money and enter satis- Under the special facts in this case, the Court faction on the record or not. He paid the money erred in making the rule absolute, and the decree and took his chance. His negligence was his is reversed, costs to be paid by the appellee. undoing." The records of the county show that from 1879 This was too severe a test of his duty and lia- to 1892, G. C. Kennedy, acting for Sarah Himes, bility. Conversely it could be said Mrs. Himes entered, satisfied, released, transferred, revived knew when the loan was made in 1886 that Herr and otherwise cared for, eight judgments and was to be her debtor and sent the money to Ken- mortgages aggregating sixteen thousand, six nedy for delivery to Herr; knew the judgment hundred dollars, some by virtue of a special powwas entered because she had a certificate; ap-er of attorney, and others as attorney at law. proved of the payment of interest annually to None of these were repudiated, and her ratifiKennedy and accepted it from him; knew or cation of his act is to be presumed from the abshould have known of the revival of the judg- sence of dissent, which is equivalent to precedent ment by Kennedy; and when informed of the sat-authority. W. C. S. isfaction of the judgment by Kennedy in De- The decree of the Court below is reversed. cember, 1893, and his receipt of this money, recognized the indebtedness as being that of her grandnephew, who for seven years had looked after this and other loans for her, and not Aaron Herr, whom she had never seen, by making a claim for this, with other money, and accepting in satisfaction of this very claim, a deed dated January 2, 1894, with a consideration mentioned Judgments-Opening of-Discretion of Court—Ap Nov. '96, 168. Superior Court. December 18, 1896. peals-Practice. at $2603.25 ("made up of a mortgage of $2000 against Hofmaster and the judgment of Aaron Under the Act of May 20, 1891, appeals may be taken Herr for $500 and other items") to her, with a from an order of the Court opening a judgment, and are full understanding of her act, when represented to be heard "in like manner as appeals from final decrees to the Supreme Court," but it does not take away the disby competent counsel, to satisfy these claims, she cretion vested in the Common Pleas. accepted his interest in a farm in Salisbury township, and a transfer of his interest in the fee in the Loehler estate. Upon an appeal from an order opening a judgment the appellate Court is not called upon to review the whole case in extenso; but to examine and determine whether the discretion of the Common Pleas has been properly exercised. There is great necessity of a more orderly practice in the disposal of rules to open judgments. The authorities cited by appellee do not apply to this case. It is different in its facts from any presented. During the whole course of the business, Sarah Himes authorized a course of busiPER CURIAM. As the decree of the Court is wholly ness to be established and continued as to war-equitable, the reason for it becomes important; and while rant a man of ordinary caution in believing that the entries "rule absolute," or "rule discharged," are, Kennedy was her trusted representative, in the doubtless, in the mind of the Court, the dictates of a sound care of this investment; and when his default was discovered, at once ratified his act of receiving the money for her by accepting from him a Ideed in satisfaction of the claim. discretion; still in reviewing that discretion, the appellate Court cannot always take for granted what does not appear, or is not a reasonable inference from what does appear. The findings of fact and the inferences therefrom are just as essential to a fair review in these cases as those of a master in chancery, in regular equity proceedings. Fisher v. King, 153 Pa. 3. The extent of an agent's powers depends upon the authority under which he acts. This may be shown by his written instructions or his course of dealing. It is true the public are not always Appeal of John Pfaff, plaintiff, from the judgbound by the private instructions of the agent; ment of the Common Pleas No. 4, of Philadeland may hold the principal responsible, though phia County, in making absolute a rule to open the particular acts are in excess of his private in- a judgment entered against Charles Leh Thomas, upon a single bill under seal, and to let him into viewable that which was formerly a matter of aba defence. solute discretion in the Court below. Upon apThe testimony, as disclosed by the depositions peal under either Act the appellate Court is not filed in the case, was conflicting. The Court called upon to review the whole case in extenso; opened the judgment without filing any opinion, its function is to examine and determine whether the entry "Rule absolute," being the entire rec- the discretion of the Common Pleas has been ord as to this matter. The plaintiff took this properly exercised. These applications are adappeal. Clinton O. Mayer and Joseph L. Greenwald, for appellant. Walter Willard, (Edward Willard with him), for appellee. SO dressed to the equity powers of the Court, and the Judge who hears them sits as a chancellor and disposes of them in accordance with the principles of equity: Kelber v. Plow Co., 146 Pa. 485; Jenkintown Nat. Bank v. Fulmor, 124 Pa. 337. The rule has become settled that any contract The decision of the chancellor must, of course, produced by actual intimidation is voidable, not rest upon competent evidence, and if not only where the circumstances were sufficient to founded it will be set aside by the appellate intimidate a man of ordinary firmness, but were Court: Woods v. Irwin, 28 WEEKLY NOTES, 187. sufficient to and did intimidate the particular per- With this qualification, however, where the Court son, though insufficient to intimidate one of or- below passes upon the credibility of the witnesses dinary firmness. and the weight of the evidence, and bases its decision upon the whole case presented, the conclusion thus arrived at will not be disturbed unless it is clearly shown that a mistake in law or in Bank v. Dersham, 15 WEEKY NOTES, 541. The use of a criminal proceeding as an ordinary process for the collection of debts is a practice that needs restraint rather than encourage ment. Prough v. Entriken, 11 Pa. 85. fact has been committed. The growing frequency of this class of appeals, and the duty of the appellate Courts to review the proceedings in the same manner as if they were regular proceedings in equity, suggest that we again call attention to the defective and unJanuary 18, 1897. SMITH, J. This is an appeal satisfactory manner in which these cases are preby the plaintiff from an order making absolute a sented for review. In the case of Fisher v. King, rule to open a judgment entered on a single bill 153 Pa. 3, a rule to open the judgment was grantwith warrant of attorney, upon the allegation of ed on the defendant's affidavit, and, without anpartial want of consideration, and of duress in its swer, the parties proceeded to take testimony, execution. In view of the testimony of the defen- after which the cause was submitted and disposed dant and that of his father-in-law, together with of by the Court without further pleadings. The the plaintiff's admission that at the time the in- decree of the Court in that case was "Rule disstrument was executed he told the defendant that charged." The only difference between the proif the money demanded was not paid he would ceedings in that case and the proceedings in the have him arrested, we are not prepared to say one before us is that here the decree is "Rule abthat the Court below erred in the exercise of its solute." Speaking of the necessity of a more ordiscretion: Stockwell v. Webster, 160 Pa. 473. derly practice, the Supreme Court, in Fisher v. Prior to the Act of May 20, 1891, no appeal King, through Mr. Justice DEAN, said: "The rewould lie to an order of the Court opening a cords of the Court import verity; any attempt to judgment, because such an order was interlocu- impeach or set aside a judgment for matters outtory: Building & Loan Assn. v. Hoagland, 87 side the record should be permitted only after a Pa. 326. Under the provisions of this Act, how-plain issue has been made up by petition verified ever, appeals may be taken from such orders, and by affidavit, with answer responsive thereto; then, are to be heard "in like manner as appeals from the testimony taken 'should be limited to the isfinal decrees to the Supreme Court." But neith-sue. In such proceedings, the Judge of the Comer the Act of May 20, 1891, nor that of April 4,|mon Pleas is called upon to exercise equity pow1877, takes away the discretion vested in the Com-ers; he passes on the evidence and the law, and mon Pleas, in regard to the opening of judg- although a jury may intervene, the end is the ments. Those Acts give the right of appeal to same, the final decree of a Court of equity. Being any party aggrieved by the decision of the Court, decrees wholly equitable, the reasons for them on proceedings to open, vacate or strike off judg- become important. The entries 'Rule absolute,' ments entered "by amicable confession, upon war- or 'Rule discharged,' are, doubtless, in the mind rant of attorney or otherwise;" thus making re-lof the Court, the dictates of a sound discretion; still, in reviewing that discretion, we cannot al- erty for the payment of them; they were hers, ways take for granted what does not appear, or is and she used them in her own business, which not a reasonable inference from what does appear. she has now sold out." (Third assignment of . . . Therefore the findings of fact and the infer-error.) ences therefrom are just as essential to a fair review," in these cases, "as those of a master in chancery," in regular equity proceedings. Appeal of George Kircher, plaintiff, from the judgment of the Common Pleas of Lancaster County, in an action of assumpsit, against Mrs. E. E. Sprenger. And gave binding instruction for the defendant. (Second assignment of error.) Verdict and judgment for defendant. The plaintiff took this appeal and assigned error, inter alia, as above indicated. B. F. Davis, for appellant, cited- J. Hay Brown, (W. U. Hensel with him), for appellee), cited Williams v. Nichols, 10 Gray, 83. The law of February 16, 1897. REEDER, J. this case is established by the decision in Paxon v. Neilds, 137 Pa. 385, and if the fact was unquestioned and undisputed as to the insolvency of the This suit was upon a promissory note, given husband this judgment would have to stand. The by Mrs. E. E. Sprenger, a widow, to George Kir- only assignment of error which has any merit cher. Upon the trial of the case, the plaintif of- is the third. Here it is claimed that the Court fered the note in evidence and rested. The de- below erred in not submitting to the jury the fence was that the note was given to lift a note question of the insolvency of the defendant's husof George F. Sprenger, deceased, the late hus- band, of whose estate she was the administratrix. band of the defendant, and she was not respon- It is true as the learned Court says, that no insible, as he died without leaving any estate. ventory was filed, no account presented and no Plaintiff offered to show, that Mrs. E. E. Spren- witnesses produced to show that there was any ger, defendant, as administratrix of the estate of estate; it is also true that the defendant herself said George F. Sprenger, deceased, had given a testifies that he had a horse and some bottles in bond with sureties. Objected to. his possession at the time of his death and that The defendant testified that Sprenger had left she does not know where he got the money to no estate. This was the only testimony as to the pay for the horse and the bottles, and that that solvency or insolvency of Sprenger. was all the estate that her husband left at the The Court, LIVINGSTON, P. J., charged, inter time of his death; she testifies at another time alia, as follows. that he had three horses at the time of his death; "There is no evidence here at all, that any es- and in another place that he had some mules and tate was left by Geo. F. Sprenger. The fact of bottles, and that she mortgaged her property to taking out letters of administration don't show pay for them, and that they were her property there was any estate; no inventory was filed, noth- and not that of her husband. ing done. They produce no account; they do not Under this testimony the weight of the eviproduce any witness, who shows there was any dence might very strongly indicate the insolvenestate. She tells you that the horses this man cy of the defendant's husband at the time of his Kircher speaks of, she mortgaged her own prop-death, and yet, as it depends entirely upon her 573 testimony, and her credibility is a question whol- ted to the jury. Authorities are hardly needed ly within the province of the jury, it should have for so obvious a proposition." been submitted to the jury for them to pass upon. The third assignment of error is therefore susIn the case of Reilly v. Dean, 36 Leg. Int. 304, tained and the judgment is reversed, and a veit was held by the learned Court below that the nire facias de novo awarded. plaintiff, Mrs. Reilly, had been induced to apply her personal means to the payment of her husband's debt and the relief of his estate, and the note to the plaintiff in that case had been Nov. '96, 63. Superior Court. was W. C. S. December 8, 1896. No. 2. v. Heebner. Thompson's Appeal. liens-Alterations and additions—Acı of May 18, 1887—Notice of intention to file lien. Where materials are furnished for the alteration of, and additions to, an existing building, and no notice is given, as required by the Act of May 18, 1887, of an intention to file a lien, the material-man is not entitled to a lien. It is not enough to make the structure a new building in the eye of the law, that the union of the new and old buildings has resulted in "one harmonious whole" stamped "with a new and distinctive character." given in pursuance of that resolution and so ac- German Fairhill Building Association, cepted, that the Court could not therefore say that there was no consideration for the note in suit. This was affirmed by the Supreme Court in a Per Curiam decision. Applying the law as Mechanics' laid down in that case to the present case, it clearly indicates that there was a valid legal consideration for this note given by Mrs, Sprenger for her deceased husband's debt, if he was insolvent at the time of his death. The sole question of fact, therefore, for the jury to determine whether or not he was insolvent There were certain facts indicating his insolvency which appeared in the testimony of Mrs. Sprenger, the defendant; she explained these facts, and said that the prop- Appeal of Gilbert L. Thompson, from the deerty he died possessed of was partly her property, cree of the Common Pleas of Montgomery and that he died actually insolvent; no inventory County, dismissing his exceptions and confirmor account of his estate was filed by her as admin- ing the report of the auditor appointed to distribistratrix. Whether a jury would credit her state- ute the fund in Court, arising from a sheriff's ment or not-whether her explanation is true or sale had under a judgment on a scire facias sur not was a question for a jury to determine, and mortgage, obtained by the German Fairhill not for the Court, and thereiore should have been Building Association No. 2, against Isaac Heebsubmitted to them. ner, with notice to Abraham G. Freed, terre tenant. The Supreme Court say, in Kelly v. McGehee, 137 Pa. 447, "While the evidence tended to sustain the plaintiff's claim, it was clearly the province of the jury and not of the Court to consider the testimony and determine the facts." The facts are fully stated in the opinion of the Superior Court, infra. Thompson then took this appeal, assigning for error the dismissal of his claim. The proceeds of the sale were referred to an auditor, M. D. Evans, Esq., before whom G. L. In Grambs v. Lynch, 4 Penny. 243, the Court Thompson claimed to share by virtue of a mebelow charged: "Where a witness goes upon the chanic's fien filed by him against the premises stand and swears positively to a fact and that fact sold. The auditor reported adversely to the is not contradicted, it is established and there is claimant, who filed exceptions which were disnothing to submit to a jury. We say to you that missed by the Court, SWARtz, F. J. there is nothing in this case for you to pass upon, save only to agree upon a verdict in favor of these defendants," and this was assigned for error, and Judge PAXSON, in commenting upon this portion of the charge so assigned says: "This is an erroneous statement of the law. There is the question of the credibility of the witness, and this cannot be taken from the jury; it is their duty February 16, 1897. WICKHAM, J. A careful to credit a witness if there is no good reason to examination of the facts furnished us by the authe contrary. But the mere manner of a witness ditor's report in this case, the evidence not being may discredit him with the jury, and his story printed, satisfies us that the Court below commay be so against all the probabilities of the case mitted no error. Irving P. Wanger, (Irvin P. Knipe with him), for appellant. Francis L. Roepke and Charles H. Stinson, for appellee. that a jury is justified in not believing him. It While the original building described in the is well settled law that where a case depends upon report of the learned auditor, and represented, oral testimony such testimony must be submit- we suppose, with reasonable fidelity, in the pic |