Bank but the money. A check or draft on another bank is not payment. If the money had been lost for this reason, without more, the defendant bank would have been liable, and would have had no right to charge off the check against the plaintiff. It appears probable, however, that the check might still have been collected if due diligence had been used. The Penn National Bank suspended about noon on May 21, 1884; it re-opened on Saturday, May 24, about 2 P.M., and remained open until noon on Monday, May 26. During this re-opening all checks that were presented were paid. The check of the Penn Bank reached Philadelphia on May 22, and was presented to the National Bank of the Republic. Payment was refused then as well as on several subsequent days. On May 22 the defendant bank wired the plaintiff: Penn Bank, in return for your check, their draft on Bank of Republic, which is not good, which we hold subject to your orders." The plaintiff had then a right to repudiate what the defendant bank had done, and hold it for the money. He did not do so. On the contrary, he wired the bank as follows: "Your telegram was duly received and contents noted. The Penn Bank is all right, and their draft, as mentioned, will be

The rules which should govern in applications to open judgments as laid down in Jenkintown National Bank's Appeal (124 Pa. 337), followed.

If it appear that the order opening the judgment was erroneous, it follows, necessarily, that the feigned issue framed thereon, and all subsequent proceedings must be set aside.

Appeal of William W. Weigley from the decree of the Common Pleas No. 4, of Philadel

phia County, opening a judgment entered by William W. Weigley, assignee of Edward B. Williams, against David Conrade, by virtue of a "We have received from warrant of attorney accompanying a certain bond given by David Conrade to the said Edward B.

paid in a day or two. Please hold for a few days, and if not honored return to me." It must be borne in mind that when the plaintiff sent this telegram he was in possession of all the facts, and knew far more about the Penn Bank than did the

collecting bank in Philadelphia. With this information he directed the draft on Philadelphia to be held for a few days. He cannot now complain of the delay. It was his own act, and condoned the original negligence. Moreover, it is a conclusive answer to the allegation that the defendant bank was no longer his agent. The telegram was an order from a principal to his agent, or it was a piece of impertinence.

We find no error in the rulings of the Court

below.

Williams.

An issue was framed under the direction of

ment.

the Court to determine the validity of the judg The defendant having died, the executors of his will, Thomas A. Redding and Mary A. Conrade, were substituted of record as defendants. The trial Judge, WILLSON, J., instructed the jury to render a verdict for defendants. Verdict for defendants and judgment thereon.

Plaintiff then took an appeal from the order opening the judgment, alleging error in the Court in making the rule absolute; and also took a writ of error to the judgment in the feigned issue, assigning for error, inter alia, the foregoing instructions to the jury.

John H. Colton and Samuel C. Perkins, for appellant and plaintiff in error.

Charles Henry Hart, for appellees and defen

January 15, 1890. dants in error.

Weigley's Appeal.
Weigley v. Redding.

Bond given for accommodation of payee-Opening of judgments- Want of consideration.

Where a bond with warrant of attorney is given to the payee named therein for the purpose of enabling him to raise money upon it, and he uses the bond for this very purpose, it resembles accommodation paper given by one person to another to enable him to raise

money thereon.

WEIGLEY'S APPEAL.

February 3, 1890. THE COURT. This was an appeal from the order or decree of the Court below opening a judgment entered by virtue of a warrant of attorney. The bond accompanying said warrant was for the sum of twenty-five hundred dollars, and was given by David Conrade to Edward B. Williams. The judgment was entered in favor of Wm. W. Weigley, assignee of Edward B. Williams, against Conrade,

January 20, 1890.

Smith et al. v. Saunders.

Insolvent debtors Escape Liability for-
Board of Inspectors of Philadelphia County
Prison.

The Board of Inspectors of the Philadelphia County Prison are not the keepers or jailers of the county prison, and are not liable for an escape of an insolvent debtor. It is only the keeper of the jail, quâ jailer, who is liable for such an escape.

delphia County.
Error to the Common Pleas No. 3, of Phila-

to December Term, 1883. The depositions of | Jan. '89, 294.
the defendant and one Alfred J. Vollrath were
taken in support of the rule to open the judgment
and from their testimony it appears that Wil-
liams, who was a broker, had had numerous
business matters with Conrade, and at the time
of the giving of the bond was indebted to the lat-
ter in a considerable sum of money. Williams
was embarrassed and to enable him to start again
in business, Conrade gave him this bond for the
purpose of enabling him (Williams) to raise
money upon it. The idea was that by such
assistance from Conrade, and a like help from
others of his friends, Williams would be able to
make money enough to satisfy his creditors, of
which, as before stated, Conrade was one. The
deposition of the plaintiff, Weigley, was also
taken on his own behalf, and he testified that he
advanced Williams a large amount of money on
this bond and other securities. Weigley's testi-
mony upon this point was uncontradicted. It
thus appears that the bond was used for the very
purpose for which it was given, to wit, to raise
money to assist Williams. In this respect the
bond resembles accommodation paper given by
one person to another to enable him to raise
money thereon. It has been repeatedly held that
want of consideration cannot be set up against
such paper even though the holder knew that
it was made for the accommodation of the payee,
for the reason that the object of issuing it was to
raise money thereon. In the recent case of Jen-
kintown National Bank's Appeal (124 Pa. 337),

we had occasion to examine with some care the

rules which should govern in applications to open judgments. What we said was but a repetition of what has been frequently said before and need not be now repeated. Tested by the rules there laid down, we are of opinion that this judgment was improvidently opened.

The order of March 20, 1884, making absolute the rule to open the judgment is reversed and set aside, at the costs of the appellee.

Action entered by agreement with the same force and effect as if a summons had been issued, in which Oscar P. Saunders, and Oscar P. Saunders executor of Sarah J. Saunders, was plaintiff, and Edmund Smith et al., Board of Inspectors of the Philadelphia County Prison, were defend

ants.

Upon the trial, before GORDON, J., it appeared that on March 27, 1883, William Quigg, being in the custody of the sheriff of Philadelphia, by virtue of a capias ad satisfaciendum at the suit of Saunders, wherein judgment had been entered against the said Quigg for $2300.24, made application for the benefit of the insolvent laws, and having given bond in accordance therewith, was discharged from the custody of the sheriff. On February 29, 1884, Quigg applied for his discharge as an insolvent, which was refused. Upon the same day he went to the Philadelphia thereof a paper, as follows: County jail and presented to the superintendent

COMMON PLEAS, 3.

In re Insolvency of William
Quigg.

March Term, 1880.
No. 213.

Application for discharge as an insolvent. Discharge refused this day by Judge Finletter (February 29, 1884.)

The above-named William Quigg voluntarily surrenders himself in the above matter to the jail of the city and county of Philadelphia, this same day, February 29th, 1884. WILLIAM QUIGG.

The superintendent refused to detain Quigg upon the authority of this paper, believing that he had no power to do so, and having no knowledge of such procedure.

Saunders thereupon brought suit against Smith et al., inspectors of the county prison, for an escape as under the statutes of Westminster 2d (13 Ed. I., chap. 11, and 1 Rich. II., chap 13), for the amount due him upon said judgment, to wit, $1847.30, with interest from June 21, 1883; and had recovery as in debt; the Judge, at the close of the plaintiff's case, the defendants offering no evidence, directed the jury to find for the plaintiff in the full amount of the debt, with in

The Court subsequently discharged the rule for a new trial, and entered judgment upon the verdict, GORDON, J., saying:

terest as demanded, and allowed counsel for de- |(112 Pa. 546) we held that this surrender was fendants to move for new trial, and for judgment good and that his sureties were discharged. In non obstante veredicto. Keim v. Saunders (120 Id. 121) we decided that there was an escape, but that the sheriff was not liable therefor, for the reason that under the statutes relating to the Philadelphia County Prison the sheriff was no longer the keeper or jailer thereof. This suit, as before stated, was against the inspectors of the prison, and the learned Judge below held they were liable. A verdict was accordingly rendered against them for $2446.43, upon which judgment was entered.

"This is an action against the inspectors of the county prison for an escape. In at least two other actions by the same plaintiff, the facts in this case have been before the Supreme Court, and upon them that Court has announced certain conclusive judicial determinations. The propositions of law thus definitely settled are as follows:

In Keim v. Saunders we said: "Where such officer (sheriff) has been held liable for an escape he has been held quâ jailer not quâ sheriff. It is to the common jail that the insolvent surrenders; it is the keeper of that jail who is liable for an escape."

"The prisoner was properly surrendered at the jail, and by reason of the failure to detain him in custody there was an escape. There is no doubt that an escape according to the common law . . . has uniformly fixed the jailer;' there have been cases in this State where the sheriff has It would probably surprise the worthy gentlebeen held liable for an escape, and there is no men who constitute the board of prison inspectors doubt of such liability where the sheriff is the were we to decide that they were the keepers or actual keeper of the jail or controls it.' In this jailers of the Philadelphia County Prison. They are case the sheriff is not responsible, because succes now, or were quite recently, appointed by the sive Acts of Assembly have swept away the last Courts, and are clothed by law with certain vestige of the control of the high sheriff of Phila- duties respecting its order and governme delphia over the county prison;' these Acts of They have the management of its internal affairs, Assembly place the prison in the care of a board such as the purchase of provisions, etc., and are of inspectors; these inspectors (the present de-authorized to appoint a superintendent, a matron fendants) are in the control of the whole' of the prison.

"Such is the law applicable to the facts in this case as expressly decided by the Supreme Court in the two cases of Saunders v. Quigg (112 Pa. St. 546; S. C. 18 WEEKLY NOTES, 81); and Keim v. Saunders (120 Pa. St. 121; S. C. 21 WEEKLY NOTES, 372). The Court in the latter case also said: 'It is possible that some one was responsible for this escape.'

for the female department, a physician, the keepers, and other persons employed there, and to fix their salaries. They are engaged without compensation in administering a public charity, they have a large control over the internal economy of the prison, but that the performance of such duties converts them into jailers or keepers of that institution has never before been asserted.

The learned Judge below, in the absence of "We see no help for it, therefore, in view of any disputed facts, directed a verdict for the the two decisions referred to, but to hold the in-plaintiff, and reserved the question of the liaspectors responsible, and sustain the verdict found against them." . .

Defendants thereupon took this writ, assigning for error the instruction of the Court to the jury to find for the plaintiff, and the entry of judgment for the plaintiff.

Wayne Mac Veagh (John Hampton Barnes with him), for plaintiffs in error.

Bradbury Bedell, for defendant in error.

February 3, 1890. THE COURT. This was an action in the Court below to test the liability of the inspectors of the county prison for the escape of one William Quigg, whose discharge as an insolvent had been refused by the Court of Common Pleas No. 3, and who upon the same day surrendered himself to the jail of the city and county of Philadelphia, in compliance with the condition of his bond. In Saunders v. Quigg

bility of the defendants. Subsequently he entered judgment on the verdict for plaintiff. This we think was error.

It is possible that some one was responsible for this escape; we do not say who is responsible; we only say that the board of inspectors are not.

The judgment is reversed, and judgment is now entered in favor of the defendants below non obstante veredicto.

Opinion by PAXSON, C. J.

H. C. O.

Jan. '89, 268.

Murdock v. Martin et al.

January 8, 1890. | Massachusetts; in the cities of New York and Brooklyn, in the State of New York; in the cities of Jersey City and Newark, in the State of New Jersey; in the city of Philadelphia, in the State of Pennsylvania; in the city of Baltimore, in the State of Maryland; and in the city of Chicago, in the State of Illinois, and in cities have factories in which said lampblack is used, of the places where the purchasers doing business in said

Pleading-Statement of claim—Amount of—Certainty as to-Act of March 21, 1806-Act of May 25, 1887-Nonsuit-Errors and appeals

-Practice.

Neither the Act of March 21, 1806 (4 Sm. L. 328), nor the Act of May 25, 1887 (P. L. 271), obliges the plaintiff to disclose his case in a statement with the same nicety and precision of averment as was required in a declaration, the object being merely to inform the defendant with reasonable accuracy of the nature and extent of the plaintiff's claim.

When, therefore, a plaintiff sues for commissions under a contract, by which he was entitled to receive commissions not only upon the goods sold by him, but also upon all goods sold by the defendant in certain places, by whomsoever the sale might be made, it is sufficient for the plaintiff, under the special facts of his case, having given a copy of the contract, the nature and extent of his claim under it, a statement of the commissions claimed on goods sold by him, and the period of time covered by the contract, to refer the defendant to the entries upon their own books, for ascertainment of the exact amount due, that being certain which is capable of being made certain.

A writ of error lies to a judgment of nonsuit entered for want of a sufficiently specific statement of the plaintiff's claim; and a motion to take off the nonsuit, which is required in case of a peremptory nonsuit entered at the trial upon the insufficiency of plaintiff's proofs, is not necessary upon the entry of a judgment

of nonsuit for such lack of a specific statement.

Error to the Common Pleas No. 1, of Philadelphia County.

Case, by Elvin O. Murdock against Luther Martin, Jr., and Robert W. Martin, surviving partners of the firm of L. Martin & Co., to recover commissions due under a contract.

The plaintiff filed a declaration and bill of particulars, and subsequently after the passage of the Procedure Act of May 25, 1887 (P. L. 271), a statement which alleged a contract between plaintiff and the firm of L. Martin & Co., to sell lampblack manufactured by said firm upon a five per cent. commission; the performance of his contract by plaintiff, and the failure to pay the commission. The statement concluded as follows: "The said commission amounts to a large sum, whose precise amount cannot be stated, as only to be ascertained from the books of the said firm, to which access cannot be had by the said plaintiff; the plaintiff believes and claims that the amount due him and to be recovered in this action, will not exceed the sum of $100,000."

To this statement was appended a copy of the contract between plaintiff and said firm, wherein the said firm were the parties of the first part, which provided, inter alia, as follows:

(1) The party of the second part shall have the exclusive sale in the city of Boston, in the State of

the lampblack manufactured, supplied, or delivered to purchasers by the parties of the first part, for the period of ten years from the date of these presents.

(3) The party of the second part shall receive from the parties of the first part, and the parties of the first part hereby agree to pay to the party of the second part, upon all deliveries upon sales of said lampblack made by him or them in the places aforesaid, or made by the party of the second part elsewhere, a commission of five per cent. upon the net price of said lampblack and its packages, at the place or places to which it is shipped.

(4) When sales are once made by the party of the second part in other places than those specified in the first article of this agreement, to persons to whom the parties of the first part have not theretofore sold within one year preceding the date of the sale made by the party of the second part, then upon all future sales made to said persons, within the ten years aforesaid, whether through the party of the second part or otherwise, the party of the second part shall receive the commission specified in the third article of this agreement.

ond part to persous in other places than those speci(5) When sales are made by the party of the secfied in the first article of this agreement, to whom the parties of the first part have sold within one year preceding the date of the sale made by the party of the second part, then the said party of the second part shall receive the commission mentioned herein, only

upon each sale so made by him.

(6) The parties of the first part shall on or before the fifteenth day of each and every month during the ten years herein specified, render to the party of the second part a full and detailed statement, showing the deliveries made to purchasers during the preceding month, upon the sale to whom the party of the second part is entitled to a commission pursuant to this agreement, and shall at the same time pay to the party of the second part the commission due to him on such deliveries.

Upon a rule being granted on plaintiff to file a more specific statement of claim he filed such a statement as follows:

66

:

"1. That the five per centum commission is to be calculated upon the net price of all the black and its packages at the place or places to which it was shipped and delivered upon sales of the said black made by plaintiff or defendants in the places mentioned in the first clause of the agreement sued on, or by the plaintiff elsewhere. And also upon all sales, whether through the plaintiff or otherwise, under the fourth clause of the agreement sued on. And also upon each sale made by the plaintiff under the fifth clause of the agreement sued on.

"II. That the time within which the said commissions were earned is from the date of the contract sued on until the death of Luther Martin; and thereafter, until the bringing of this

suit, upon all deliveries upon sales within the terms of the agreement sued on, made in closing up the business of the said firm.

them from the defendant." The requirement of the Act of 1887, therefore, is that the statement shall be such as is provided by the Act of 1806,

"III. That the amount for which suit is here that if shall be signed by the plaintiff, or his atbrought is $50,000."

In obedience to a further order of the Court, the plaintiff filed still another additional statement as follows:

The plaintiff claims the commission of five per centum upon all the orders mentioned in the schedule hereto annexed, and also upon all orders sent direct to the said defendants and not passing through the hands or coming into the knowledge of the said plaintiff, but upon which the said plaintiff is entitled to a commission under the agreement sued upon. The plaintiff had no connection whatever with the shipments and cannot now give a detailed list of them. They are well known to the defendants, and could be easily furnished from their books if access thereto would be permitted. The plaintiff is advised that he cannot be required to furnish his adversaries, in advance of the trial, the evidence by which he will establish his claim."

torney, and shall be accompanied by a copy of the obligation in suit.

The Act of 1806 does not oblige the plaintiff to disclose his case in a statement with the same nicety and precision of averment as was required in a declaration, for that would defeat the very purpose of the statute. (Boyd v. Gordon, 6 S. & R. 51.) The object is merely to inform the defendant with reasonable accuracy of the nature and extent of the plaintiff's claim. (Purviance . Dryden, 3 S. & R. 405.)

The statement filed in this case sets forth that the action was brought "upon a written contract dated January 24, 1884, made between the plaintiffs and the defendants together, etc.," whereof a true copy is annexed, "for the recovery of the five per centum commission therein agreed to be paid to the plaintiff by the said firm;" "that the plaintiff has fully performed his part of the contract, and now claims in this ac

The schedule annexed contained an itemized tion the said commission, from the date of the list of certain orders for lampblack.

Thereupon the Court entered a judgment of nonsuit without filing an opinion. Whereupon the plaintiff took this writ, assigning for error the entry of the judgment of nonsuit.

John B. Uhle, for plaintiff in error.
Richard C. Dale, for defendants in error.

said contract, upon all deliveries and sales made by the said firm, as provided in the said contract." The statement then proceeds as follows: "The said commission amounts to a large sum, whose precise amount cannot be stated, as only to be ascertained from the books of the said firm, to which access cannot be had by the said plaintiff; the plaintiff believes and claims that the amount due him, and to be recovered in this action, will not exceed the sum of $100,000." This is verified by the plaintiff's affidavit as to truth of the matters therein set forth.

February 3, 1890. THE COURT. The new Procedure Act of May 25, 1887 (P. L. 271), so far as it has any relevancy to this case, provides that "the plaintiff's declaration in the action of assumpsit shall consist of a concise statement of In the first more specific statement, subsethe plaintiff's demand, as provided by the fifth quently filed, the plaintiff defines with more parsection of the Act of the Twenty-first day of ticularity the nature of his claim under the first, March, Anno Domini, one thousand eight hun-fourth, and fifth paragraphs of the contract, and dred and six," which "shall be accompanied by states that the amount for which suit is brought copies of all notes, contracts, book entries," etc., is $50,000. In the second supplementary state66 upon which the plaintiff's claim is founded," etc., ment the plaintiff undertook to set forth, in a the statement "shall be signed by the plaintiff, schedule, some of the particular items of his or his attorney," and, "in the action of assump-claim, but claims in addition thereto commissit, shall be replied to by affidavit," and "judg- sions "upon all orders sent direct to the said ment may be moved for want of an affidavit of defence for the whole or a part of the plaintiff's claim, as the case may be, in accordance with the present practice in actions of debt and assumpsit."

The fifth section of the Act of March 21, 1806, provides that the plaintiff in certain cases shall file "a statement of his, her, or their demand, particularly specifying the date of the promise, book account, note, bond, penal, or single bill, or all or any of them, on which the demand is founded, and the whole amount that he, she, or they believe is justly due to him or

defendants, and not passing through the hands or coming to the knowledge of the said plaintiff, but upon which the plaintiff is entitled to a commission under the agreement sued upon." The plaintiff, in his statement, then proceeds to say that he "had no connection whatever with the shipments and cannot now give a detailed list of them; that they are all well known to the defendants and could be easily furnished from their books, if access thereto would be permitted," etc. To this also the plaintiff appends his affidavit.

Under the special circumstances of this case