Third. Said trustees have not paid to the exceptant the full amount of income to which he is entitled under the will of Joseph Horne, deceased, creating the trust.

business. The main tracks for through busi- Second. Said trustees have not accounted for ness would be a mile and a half through the the rent on the Horne store on Penn avenue beborough. Besides these main tracks, would between May 1, 1897, and August 1, 1898. the scores of tracks and switches for the shops, for shifting cars, for making up trains, etc., requiring the use of many engines and perhaps hundreds of cars daily. The railroad is primarily and mainly for public benefit. Borough councils, by ordinances and otherwise, might not only greatly annoy and injure the com. pany, but might also seriously affect the public, in the transportation of passengers and freight, on this, one of the greatest railroads in the United States. The public should be protected, as well as the railroad company, from injuries such as might result in this case.

For these reasons I refuse to grant the incorporation prayed for. The application is dismissed at the costs of the petitioners, except as to the expense of the testimony not taken by the petitioners.

For petitioners, Ulysses G. Vogen.
For exceptant, Dalzell, Scott & Gordon.

Orphans' Court,

ALLEGHENY COUNTY.

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FACTS FOUND.

Joseph Horne left a will in which, among
other things, he directed the conversion of his
real and personal estate into money and gave a
share to the accountants as trustees to invest,
"in interest-bearing or dividend-paying stocks,
| bonds, mortgages or other securities, real and
personal," and pay the income to Joseph O.
Horne during life with remainder over to his
issue. The trustees invested part of the funds
that came into their hands in a large store
building and lot situate on Penn avenue in the
city of Pittsburgh, Pa. The amount of this in-
vestment which belonged to the trust created
for the use and benefit of the exceptant and his
issue was $266,666.66. The whole amount in-
vested in the lot and building was $800,000, but
the other two-thirds interest belonged to two
other children of the testator, Joseph Horne de-
ceased, one-third to Mrs. Sue E. Holmes, a

Account of JOHN G. HOLMES and DURBIN | married daughter, in her own right, and the
HORNE, Trustees under the Will of JOSEPH
HORNE, Deceased.

Rent Surcharge of trustees

contract.

-

Where a building is burned and the lessor under an
agreement with the lessee enters upon the premises
and erects a new building, the lessor cannot collect
rent for the time during which he was rebuilding.
A. and B., trustees, leased a building to C. for a term of
years at the annual rental of $40,000. During the
term the building burned, and the trustees under
agreement with C. erected a new building, C. con-
tributing $40,000 toward the expense and paying

other third to the accountants in trust for Bernard S. Horne, a son,

On February 1, 1894, Sue E. Holmes and the - Improvident accountants, as trustees of Joseph O. Horne and Bernard S. Horne, leased this store building to the firm of Joseph Horne & Company for a period of ten years at an annual rental of forty thousand dollars ($40,000), payable monthly, the lessees to pay all gas, electric or other light used upon the premises, and to pay all water rents and assessments thereon, as well as all city and county taxes, and at the expiration of the term aforesaid to yield up the said premises in good and sufficient repair as when received, reasonable wear and tear and accident by fire excepted. It was also agreed between the parties, "that should the aforesaid rent or any part thereof remain unpaid after the same shall be could consider the said lessees as tenants at will due and payable, the lessors at their option and re-enter and repossess themselves of the said premises."

$2,000 a year additional rent. C. was thereby relieved from paying rent while the new building was under construction, which was a little over a year.

Held, that this was not an improvident contract, and

the trustees should not be surcharged with the amount of rent released while the building was being completed.

No. 125 June T., 1899. In re exceptions to trustees' account taken by Joseph O. Horne, one of the cestuis que trustent.

MCILVAINE, P. J., of the 27th Judicial District, specially presiding. Filed March 26, 1900. The exceptions filed to the trustees' account are as follows:

First. Said trustees have not accounted for the income received by them prior to May 15, 1894.

The lessees occupied the leased premises until May 2, 1897, and paid the rent as provided for in their lease when the building was almost totally destroyed by fire. The building was well insured, and the lessors, Sue Holmes and ❘ the accountants promply took possession of the leased premises and reconstructed the build

ing, with some improvements and enlargements costing in the aggregate $110,000, having entered into a supplementary agreement of lease with Joseph Hone & Company by which, when said building was reconstructed and said enlargements and improvements made, the latter were to pay to Sue E. Holmes and the accountants $40,000 of the costs of the same in six equal, annual payments, and in addition thereto to pay rent for said property to the amount of $42,000 instead of $40,000 annually. This court, to No. 152 May Term, 1898, after notice to Joseph O. Horne and Bernard S. Horne, gave its approval to the reconstruction of their building with the improvements aud enlargements, and authorized the accountants to place a mortgage on the same to raise money to pay in part for the same.

Prior to February 1, 1894, there was no income of any kind came into the hands of the trustees, and the payment of date May 1, 1894, includes income from February 1, 1894, up to that date. No rent under the lease of date February

Company between May, 1897, when the old building was destroyed, and July 1, 1898, when the new building was first occupied. It was the understanding between the trustees and Joseph Horne & Company that the payment of the $40,000 toward the erection of the new building and $2,000 additional rent was to relieve the lessees from the payment of rent while the new building was being erected.

In giving this approval the court held that the trustees had mistaken their powers and had without authority made the original investment, as it was not within "either the letter or spirit of the trust" which provided for an investment "in interest-bearing or dividend-1, 1894, was collected from Joseph Horne & paying stocks, bonds, mortgages or other securities, real and personal." But it also held that as it was made in good faith, without apparent loss to the cestuis que trustent and with their consent, that the contract with Joseph Horne & Company should be carried out and the trustees allowed to make the loan. In doing this the court "treated the transaction rather as a temporary investment of the money or perhaps a measure adopted to prevent sacrifice of the property by a sale at an undervalue in analogy to the practice on a purchase of land by a trustee in foreclosure proceedings. The assets would then in contemplation of law be still maintained in the character of personalty; and an opportunity afforded, not only to satisfy the claims of bona fide creditors but to dispose of this asset in such manner as may seem beneficial to the trust estate."

The decree of the court made to the last named number and term was in these words (except the explanatory phrases in brackets): "And now, to wit, May 14, 1898, this matter came on to be heard on petition filed (by John G. Holmes and Durbin Horne, trustees,) and after hearing it is ordered, adjudged and decreed as follows:

"1. That the property described in the petition (the lot and building on Penn avenue in the city of Pittsburgh, Pa., purchased by Sue E. Holmes and John G. Holmes and Durbin Horne, trustees, for $800,000) shall be treated and held as it now stands until further order of this court.

CONCLUSIONS OF LAW.

We are of opinion that on the facts found from the record papers offered in evidence and from the testimony of the witness, John G. Holmes, examined at the hearing as herein before given, that neither of the exceptions should be sustained.

In support of our conclusions, wesubmit these considerations:

Court of Common Pleas,

WESTMORELAND COUNTY.

CLAWSEN v. SEANOR, Sheriff.

Replevin-Duty of sheriff to take bond.

In all actions of replevin, except replevin following a distress for rent, the sheriff is under no obligation to

take a bond from the plaintiff for the protection of the defendant. The sheriff is not liable if he takes a bond

with insufficient sureties.

No. 244 Aug. T., 1899. Case-stated. Opinion by McCONNELL, J. Filed February 3, 1900.

The cause of action which the plaintiff claims to have exhibited in the case-stated is against the sheriff for taking an insufficient replevin bond in an action in which the present plaintiff was a defendant.

If we have a case in which a sheriff was bound to obtain sufficient sureties to. such a bond for the benefit of the defendant in the replevin, we have no doubt about the sheriff's liability on the case-stated. "The sheriff is answerable for the sufficiency of sureties in a replevin bond at the termination of the suit; it is not enough that they were sufficient when they were taken: Pearce v. Humphreys, 14 S. & R. 23; Oxley v. Cowperthwaite, 1 Dall. 349; Watterson v. Fuellhart, 169 Pa. 612.

By the case-stated it appears that the sureties to the replevin bond were insufficient at the termination of the suit. The sheriff must answer to the present plaintiff for having taken | sureties that turn out to be insufficient if we have a case to which the doctrine of the foregoing cases applies.

owing by the sheriff to the defendant in replevin, with respect to the sufficiency of the sureties, for the defendant is entitled to the use of the bond. But that act only applies in cases of distress for rent.

The Act of 1705, Smith's Laws, 44, 12, enacts as follows: "It shall be lawful for the judges of each county in this province to grant writs of replevin in all cases whatsoever, where replevins may be granted by the laws of Eng. land, taking security as the said law directs, and make them returnable to the respective Courts of Common Pleas in the proper county, there to be determined according to law." The security referred to is probably only the formal pledges to prosecute, and which afforded no protection to a defendant in replevin: Morris on Replevin, 299: Balsey v. Hoffman, 13 Pa. 602 But if it was designed to comprehend the security provided for by the parliamentary law of England, it only directed the taking of security in the case of distress for rent, and to that alone does replevin in that country apply, according to some authorities: Weaver v. Lawrence, 1 Dall. 157; Watterson v. Fuellhart, 169 Pa. 612.

The parliamentary law also contains the same provision as our Act of 1772, for assignment to the avowant, in fact our act is but a copy of the English statute 11, Geo. II, c. 19, 23. See Morris on Replevin, 266.

It seems plain, therefore, that there is no statutory requirement that the sheriff take a bond from the plaintiff in replevin except in cases of a replevin of a distress for rent. "There is in Pennsylvania, as we have seen, no legislative provisions by which the sheriff is required to take a bond from the plaintiff in replevin, before executing the writ, except in cases of replevin of a distress for rent:" Morris on Replevin, 298.

v. Morse, 142 Pa. 311, says: "This bond was not taken under the statute to secure the return of a distress for rent, but in a case relating to property in chattels and it depends on usage for its validity."

Have we such a case? By 11, of the Act of March 21, 1772, Smith's Laws, 370, the sheriffs are required in such cases to " 'take, in their Of a bond not taken in the replevin of a disown names, from the plaintiff and one respon-tress for rent, Mr. Juctice MCCOLLUM, In Clark sible person as surety, a bond in double the value of the goods distrained . . . and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained in case a return shall be awarded before any deliverance be made of the distress; and that such sheriff or other officer as aforesaid, taking any such bond, shall at the request and cost of the avowant or person making conusance, assign such a bond to the avowant or persons aforesaid, etc. And if the bond | so taken and assigned be forfeited the avowant or person making conusance may bring an action and recover thereon in his own name." It is plain that, in such a case there is a duty

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Where the replevin is other than of goods restrained for rent it is doubtful whether the sheriff is required to take a replevin bond. It is, however, customary for him to do so: Jackson & Gross, Landlord and Tenant, 484-816; Balsey v. Hoffman, 13 Pa. 602.

As a matter of fact the sheriff takes a replevin bond in every case, and if taken in a case other than in a case of distress for rent there is no doubt about the liability of the sureties

thereon. "Though like the English our statute is in terms confined to cases of replevin of distress for rent, its requirement of a replevin bond has, in practice, been extended to every instance where goods are for any cause made the subject of replevin, and the condition being the same, whether taken under the statute or irrespective of it, the bond is of course open to the same construction: Balsey v. Hoffman, 13 Pa. 602. The case of Clark v. Morse, 142 Pa. 311, was a case wherein the dispute related to the ownership of property, and therefore was not governed by the provisions of the Act of 1772, which only applied to bonds in replevin of a distress for rent. Mr. Justice MCCOLLUM says, in the opinion of the court (page 321): "This bond was not taken under the statute to secure the return of a distress for rent, but in a case relating to property in chattels, and it depends on usage for its validity. The question is not whether the sheriff may lawfully exact such a bond, but whether it may when voluntarily given be enforced. . . The real purpose of the bond is indemnity to the sheriff and whatever form a security is intelligently and freely agreed upon by the parties is binding upon them. We hold, therefore, that the bond in this case and the judgment entered upon it were valid." It seems clear, therefore, in so far as the sureties to a replevin bond are concerned, that it is quite immaterial whether it is a bond taken under the statute or not.

ent plaintiff the use of that bond. If he is not under obligation to do so then the defendant in replevin (the present plaintiff) can recover no judgment against him for taking an insufficient bond.

Outside of the provisions of the statute law, there exists no obligation on the sheriff to take, for the benefit of the defendant, a replevin bond. Therefore the present plaintiff cannot recover on that ground in this case-stated.

But the question still remains, if the sheriff is not liable in an action on the case for taking insufficient security on a replevin bond, is he not liable directly to the defendant for what is set out in the case-stated?

In a case not under the statute it is doubtless true that the sheriff would be liable to a defendant in a writ of replevin, if he took out of the possession of the latter, goods which were finally adjudged to be the goods of the defendant. But in this case the sheriff did not do that, for the defendant gave a claim-property bond and retained the possession. Therefore the damages incident to the privations of his own property cannot be charged by the defendant against the sheriff in this case. (We may remark in passing that a landlord who distrains for rent could not give a claim-property bond and retain possession in the case of replevin of a distress for rent. In that respect he differs from other defendants in replevin, for they may. This may be the reason for the statute law only providing for a replevin bond in his case, others could protect themselves by means of a claim-property bond and a retention of possession. He must depend on the replevin bond alone. The landlord has neither a special or general property in goods distrained for rent nor right to their possession after service of the replevin.)

It is the landlord's duty to deliver the goods under the replevin and look to the replevin bond: Baird v. Porter, 67 Pa. 105.

But that is not the question we have to deal with here. We are concerned simply with the obligation of the sheriff to take the bond for the benefit of the defendant in replevin. He is bound by the terms of the statute to do so, in the case of distress for rent, but what is there to bind | him to do so in a case not under the statute? He might take it and always does for his own benefit and protection, for if in executing a replevin he should take the property out of the possession of a defendant to whom it was afterwards adjudged to belong, that defendant would have a good cause of action against him. Self-interest would, therefore, prompt him to compel the plaintiff to indemnify him in advance, but by what legal right can the defend-replevin? The damages claimed here consist ant demand the use of that indemnity or conplain of its insufficiency? The complaint here is against the sheriff for taking insufficient surety in a replevin bond. If the defendant has no legal right to use that bond, he has no right to make such complaint.

The case before us is a case that does not come under the statute. It is not a case of a replevin of a distress for rent. Therefore the sheriff is under no statutory obligation to give the pres

The sheriff, in the case in hand, has done no direct injury to the defendant by taking his property out of his possession. How else could he injure him? By the execution of a writ of

of the costs that the defendant was subjected to in the replevin suit. It is claimed that the liability of the sheriff exists for costs, where there is a failure of the plaintiff to prosecute his suit with effect even if the plaintiff has given a claim-property bond and retained the goods. The case of Tibball v. Cahoon, 10 Watts, 232, is cited to sustain this contention. The case certainly does hold that the surety in the replevin bond would be liable in such a case for the plain