Opinion by SHARSWOOD, C. J. Filed Octo-These are the ordinary risks of the employment ber 4, 1880. which the servant takes upon himself, Ryan v. The Cumberland Valley Railroad Co., 11 Norris, 384.

The deceased, to recover damages for whose death this action was instituted in the court below, was a laborer, employed by the defendant in raising stone upon the cars of a gravel train. For this purpose a derrick was used—an upright | wooden mast held in place by guy ropes; and while in the act of raising a heavy stone, one of the ropes broke and the mast of the derrick fell with great force on deceased, inflicting the inJury, from the effects of which he died within an hour. Whether the defendants were prima facie liable was the question; in other words, did the evidence adduced by plaintiffs make out such a case as ought to be submitted to the jury? The learned judge below thought not, and accordingly non-suited the defendants.

The facts in regard to the rope may be briefly stated: It was about two inches thick, and there was every reason to believe that it was originally sufficiently strong for the purpose for which it was used; but there was evidence that the derrick was an old structure, and that the ropes, at the time of the accident, had been in use two or three years-perhaps longer. During this time they had been exposed to the weather. Several witnesses who examined the rope immediately after the accident, testified that at the place where it had broken it was rotten and unsafe, and there was evidence that such was commonly the result of the exposure of such a rope to the weather for that or a much shorter period of time.

There is no dispute as to the law applicable to such a case. It has been long and well settled that a servant assumes all the ordinary risks of his employment. He cannot hold the master responsible for an injury which cannot be traced directly to his negligence. If it has resulted from the negligence of a fellow servant in the | same employment he must look to nim, and not | to the master for redress. The master does not warrant him against such negligence. The duty which the master owes to his servants is to provide them with safe tools and machinery, where that is necessary. When he does this he does not, however, engage that they will always continue in the same condition. Any defect which may become apparent in their use it is the duty of the servant to observe and report to his employer. The servant has the means of discovering any such defect which the master does not possess. It is not negligence in the master, if the tool or machine breaks, whether from an Internal original fault not apparent when the tool or machine was at first provided, or from an external apparent one, produced by time and use, not brought to the master's knowledge.

But do these rules apply to such an instrument as a rope used in a derrick which is employed in raising heavy weights? No doubt a perfectly new rope, and one to all appearance sound, may break, and the master would not be responsible for the consequences, having furnished a rope of proper size for the purpose, to all appearance sound; but there was evidence in this case sufficient certainly to make a question for the jury, that such a rope, after having been used for a year or more, and exposed during that time, as the one in question seems to have been, was no longer a safe rope, even though it did not outwardly exhibit any signs of decay. The master is bound to know that a rope used under such circumstances will only last a limited time. It will not do for him to furnish a sound rope and fold his arms until by actual breaking, it is demonstrated to be insecure. It will not do to say that the servant is bound to know this as well as his master, and to warn him that after such a time he ought to procure a new rope. Is the servant bound to notify the master of that which he knows or ought to know himself without such information? He knows how long the rope has been in use; the servant may not know. In this case the deceased did not know, it appears to have been the first day he worked on the derrick. There was nothing to attract his notice in the outward appearance to show how long it had been in use. It is the duty of employers to renew instruments of this character at proper intervals. The expense would certainly not be great, and a due regard to the lives of their servants imparatively demands it.

The order given Nolan just before the accident was rightly excluded. It did not show that he knew of the defect in question, but was a caution to the men to keep out of the way of an accident that might happen to the best rope. He was a competent witness and might have been examined on the part of the plaintiffs. As to the declarations of McGregor, it did not sufficiently appear that his relations to the work were such as to make his declarations evidence. As the case goes back to another trial it can be shown what his office and duties were; beside it would appear that the declarations perhaps were made after the accident, and were not of such a character as to show that he had previous knowledge of any defect in the rope. After seeing the broken rope, his opinion that it was an unsafe rope would not be binding on the company more than the declaration of the opinion of any other witness. Unless the declara

tion was to the effect that he knew before the accident that the rope was unsafe, it could not fall within the case of Hanover Railroad Co. v. Cowell, 5 P. F. S., 396, and Mullen v. The Philadelphia and Southern Mail Steam Ship Co., 28 Ib., 25.

February 12, 1875, judgment was had by Braham's executors against Brackenridge and Armstrong for $2,500. On January 4, 1878, the real estate of Armstrong was sold at sheriff's sale for $2,000, and the money paid into court for distribution among those entitled to the

Judgment reversed, and procedendo awarded. fund.

APPEAL OF J. P. KERR.

On February 11, 1875, J. P. Kerr entered judgment on a bond executed by Brackenridge & Armstrong to protect him against indorsements. February 12, 1875, Bra

ham's executors obtained a judgment against the same parties. On a distribution of the fund arising from the sale of Armstrong's property, held (affirming the judgment of the court below),

1. That the judgment of Braham's executors was entitled to the fund.

2. Evidence of the intention of the parties to consider

new notes as renewals of former ones, preceding them,

is not admissible.

Appeal of Bank of Commerce, 8 Wright, 423, followed.

There was no dispute as to the judgment of John T. Bard, for use, and by consent of all parties it was allowed in full. The balance of the fund was claimed by Kerr, and also by Braham's executors. The auditor, John M. Miller, Esq., found as follows in his report: "Testimony was adduced by J. P. Kerr to show on what his judgment for $12,000 was based, and Kerr testified that the judgment was entered on a bond he took from Brackenridge, signed by W. O. Brackenridge, David Armstrong and George Maxwell to indemnify him for indorsements for Brackenridge in the First National Bank of Mercer, Pa. Kerr offered in evidence

Appeal from the decree of the Court of Com- the exemplification of the record from Mercer mon Pleas of Crawford county.

county, showing judgment at Common Pleas No. 289 August Term, 1877, in favor of First National Bank of Mercer against W. O. Brackenridge and J. P. Kerr, bail, for $362.95, judg

torney, dated February 24, 1876. Also two notes dated October 3, 1876, one for $1,118.33, and the other for $1,875.87, and it was admitted that these three items made up the full sum for which Kerr claimed to hold the judgment for $12,000 entered February 11, 1875. It was proven by Mr. Munger, cashier of the bank, a witness called by Mr. Kerr, that the note for which the Mercer county judgment was entered was the original and only one in the transaction. The same witness testified that the $1,118.33 note originated prior to August, 1874, with

On the 4th of July, 1874, the First National Bank of Mercer held paper of W. O. Brackenridge to the amount of about $10,000, with J. P. Kerr as endorser thereon. The same dayment by confession on note with warrant of atBrackenridge (with David Armstrong and George Maxwell as bail) executed a bond to Kerr in the sum of $12,000, conditioned as follows: "The condition of this obligation is such that if the above bounden W. O. Brackenridge, his heirs, etc., * * * shall and do well and duly pay or cause to be paid unto the above named J. P. Kerr, his executors, etc., *** the just and full sum of all notes, checks, drafts and obligations of every kind or nature which said J. J. P. Kerr has incurred or assumed, or may hereafter incur or assume, to the First National Bank of Mercer, Pa., for the said W. O. Brack-George Maxwell as principal and W. O. Brackenridge, including all the liabilities and obligations of said Brackenridge to said bank which said J. P. Kerr is to assume, in consideration of this bond, and shall forever keep said J. P. Kerr free and clear of all costs, trouble and expenses in regard to said liabilities - without fraud or further delay-then this obligation to be void, otherwise to remain in full force and virtue."

enridge as bail, and was renewed from time to time, and on March 24, 1875, J. P. Kerr became indorser to the bank.

"From the cashier we also learn that the note for $231.90 which is included in the $1,875.87 note was indorsed by Brackenridge and Kerr, and discounted by the bank on March 9, 1876. That the other two items comprised in this $1,875.87 note were drafts, $1,000 and $500, drawn on Reems Brothers, New York, indorsed by Kerr and discounted by the bank in 1874one in August and the other in September. These drafts were renewed from time to time in the same shape, and were sometimes protested

The bond authorized an entry of judgment. On August 6, 1874, Brackenridge drew a draft on Reems Brothers, of New York, for $1,000; December 22, 1874, he drew another draft on the same firm for $500. Both drafts were endorsed by Kerr, and discounted by the First National | for non-payment, but were carried in the bank Bank of Mercer. On February 11, 1875, judgment was entered on the Kerr bond for $12,000, and on the same day judgment was had by John T. Bard, for use against Armstrong for $1,000.

until June 7, 1875, when they were continued by two drafts of $750 each, with the same parties, drawers, indorsers and acceptors, and payable to the bank in Mercer. This paper, in

this shape, was carried by the bank until December 6, 1875, when one $750 draft was 'continued' by a note direct to the bank and signed by Brackenridge and Kerr, and Reems Brothers were dropped out of it, the bank taking one note for $1,500 to cover both note and draft. On May 16, 1876, this $1,500 signed by Brackenridge and Kerr and the $231.90 note before referred to were continued by one note, the one in evidence, for $1,875.87. *** We feel compelled to say that when Brackenridge and Kerr gave to the bank their notes of December 6, 1875, and February 4, 1876, these were in payment of the debt they owed as indorsers. They made a new contract entire, which was subsequent to the entry of Braham's judgment and and must take subsequent.".

notes of Brackenridge discounted by the bank upon which the appellant is liable, were made subsequent to the entry Braham judgment, and were, therefore, not presented by the appellant's cautionary judgment.

It is clear by the condition of the bond upon which said judgment was entered that the indorsements of the appellant were voluntary. He was under no duty or agreement to make future indorsements, and there was no stipulation in the bond that it should cover renewals.

The only note for which it was contended the appellant was entitled to claim under his judgment, was a note of W. O. Brackenridge, with the appellant as bail, dated October 3, 1876, for the sum of $1,875.87, and discounted by the First National Bank of Mercer. As this note The balance of the fund was distributed to was dated long after the Braham judgment, it judgment of Braham's executors. Exceptions is manifest under all our authorities it was not to the auditor's report having been overruled | prima facie entitled to any part of the fund. by the court below and the report confirmed | It was claimed that the said note was but a reabsolutely, this appeal was taken by J. P. Kerr.newal of former notes upon which the appelFor appellant, Messrs. Charles McCandees and Samuel Griffith & Sons.

For appellees, T. C. Campbell, Esq.
Opinion by PAXSON, J. Filed January 5,

1880.

"

This was a question of distribution. The appellant held a judgment of $12,000 against David Armstrong, whose real estate had been sold by the sheriff, and the proceeds thereof paid into court. The judgment was entered February 11, 1875, and was given to indemnify the appellant for all indorsements, liabilities and obligations which W. O. Brackenridge, one of the obligors, had then assumed, or might thereafter assume, to the First National Bank of Mercer, Pa.

On the same day a judgment was entered against said Armstrong in favor of John T. Bard for $1,000. On the next day, February 22d, a judgment was entered against the same defendant in favor of the executors of Samuel Braham, deceased, for the sum of $2,500.

lant was responsible; in other words, that said note was given for a debt existing at and prior to the entry of the Braham judgment. Upon this point the auditor has forud, upon what we regard as sufficient evidence, that the note in controversy was intended to cover a note of $231.90, which originated March 7, 1876, and two drafts of Reems Brothers, aggregating $1,500. The claim for the $231.90 is out of the case under the authority of the Bank of Montgomery's Appeal, 12 Casey, 170, in which it was held "A mortgage given to secure the payment of notes, bills, etc., discounted, or thereafter to be discounted, for the mortgagors, and all their liabilities to the mortgagees of whatever kind, that existed or might thereafter exist at any time, is a lien for future advances as against intervening incumbrances, only from the date of such future advances, and not from the date of the mortgage." In regard to the drafts of Reems Brothers, the auditor finds that they were fully paid. He says: "We feel compelled to say that when Brackenridge & Kerr gave to the bank their notes of December 6, 1875, and February 4, 1876, these were in payment of the debt they owed as indorsees. They made a new contract entire, which was subsequent to the entry of Braham's judgment, and must take subsequent." No exception was made in the court below, nor was error assigned here to this find

The judgments of appellant and John T. Bard having been entered upon the same day would, so far as their position on the record is concerned, be entitled to come in upon the fund pro rata. The auditor finds as a fact, however, that the parties when before him agreed that the Bard judgment should have priority. No agreement in writing to that effect was made and attached to the report, as it should haveing of the master. It was held in the Appeal been, and the agreement is denied by the counsel for the appellant. The view which we take of the case dispenses with a discussion of this question.

The right of the appellant to come in upon the fund is resisted upon the ground that the

of the Bank of Commerce, 8 Wright, 423, that "Evidence of the intention of the parties at the time of the discounts, to consider the new notes as renewals of former notes preceding them in the series, is not admissible; for the question was one of fact, whether or not they were re

The decree is affirmed, and the appeal dis- the plea of payment in a pending adversary promissed at the cost of the appellant.

J. P. FELT et al. v. L. G. COOK and S. 9. would be a very wide departure from that strict

Error to the Court of Common Pleas of Cam-cision there is no complaint. One of the defenderon county.

Appeal from the decree of the Court of Com- time he withdrew the claim, than when he mon Pleas of Union county.

Opinion by MERCUR, J. Filed October 4, 1880. This contention is for a fund produced by a sheriff's sale of the real estate of one Gabriel Huntingdon. It arises between his lien creditors and the overseers of the poor. It presents a question of the power of Huntingdon after he had become a charge on the poor district, to make and to withdraw a claim for $300.00 worth of property under the Act of April 9th,

1849.

made it. He did not make it in behalf of the overseers, but in his own right. He could not have been compelled to claim it to the prejudice of his lien creditors, either for the benefit of himself or his other creditors. Before any order or decree giving him the money was made, and before his claim was considered and determined he withdrew it. He was as competent to withdraw the claim as he was to make it. The withdrawal was no fraud on any of his creditors. It was not in conflict with any principle of equity nor with the policy of the law. No fact is shown tending to put the appellant on higher ground than that occupied by the judgment lien creditors. The learned judge was right in decreeing the money to the latter.

Decree affirmed and appeal dismissed at the costs of the appellants.

ABSTRACTS OF RECENT DECISIONS.
Supreme Court of Pennsylvania.

After the judgment on which the money is claimed had attached as liens to the land, and after a fi. fa. had issued on one of them, but before the return day thereof, Huntingdon applied for relief. An order therefor was duly granted. Under this order the overseers took charge of Huntingdon, and have continued to provide for him. Several days thereafter the fi. fa. was levied on the land. About a month after the order of relief was procured, Huntingdon made a claim to the $300.00 exemption. The appraisers found that the land could not be divided without spoiling the whole, and Huntingdon then claimed the $300.00 out of the proceeds of Opinion by PAXSON, J., May 3, 1880.-37 Leg. Int., 314. A the sale. The land was sold on a writ of vend. Afterwards, by writing duly executed by Huntingdon, he withdrew his claim for the exemption, and agreed “that the sheriff pay out the said money as if no such claim had been made." This writing was returned with the writ on the return day thereof. The sheriff thereupon asked leave to pay the money into court, and it was so paid.

ex.

The Act of 1849, allowing the exemption, does not force it on a debtor. He may or may not claim it, at his option. It is a personal privilege | which he may release. It is a contingent right which is lost by an omission to claim it at the proper time. In case he does duly claim it, he may withdraw the claim at any time before the property is set off or money decreed to him, Kyle & Dunlap's Appeal, 9 Wright, 333. Conceding this power to exist, in one who is sui juris, it is contended that Huntington could not withdraw the claim. The Act of 13th June, 1836, authorizes the overseers of the district in which a person has become chargeable, to sue for and recover any real or personal estate belonging to him, and to collect and receive the profits of his real estate, and to sell and dispose of his personal property. It does not however divest nor impair any liens on his property existing before he became chargeable on the district. When Huntingdon became chargeable he had no right of property. He had not taken the first step towards acquiring it. He never did acquire He was under no more disability at the

it.

Banks-Responsibility of for safe keeping of depositor's money-Steckel v. The First National Bank of Allentown.

bank is responsible for the safe keeping of the money of a depositor, and cannot set up the fraud of its own officers as an ansper to a demand for repayment.

Indictment-Principal-Accessory-Evidence.-Brandt and Hummel v. The Commonwealth,-Opinion by STERRETT, J., February 9, 1880.-37 Leg. Int., 341. Where four men separate trial, it is competent for the Commonwealth to are indicted for murder and they waive a demand for a introduce any testimony that tends to prove the guilt of any one of the defendants, although it may incidentally prejudice the others. Under the 44th Sec. of the Criminal Procedure Act one who is accessory before the fact may be charged as a principal in an indictment for murder.

Sheriff's Sale - Distribution- When judgment revived ceases to be a lien.-Rudy's Appeal.-Opinion by PAXSON,

J., June 19, 1880.-37 Leg. Int., 355. The Act of 1836 requires that whenever the real estate of a debtor is sold by the sheriff, the proceeds must be distributed among the lien creditors, and the surplus, if any, must be paid to the debtor. The lien must be expressly charged npon the land, and no mere contract debtor has even the right to be heard on question of distribution. When a judgment is revived against the original defendant after a sale, without joining the terre tenant, it ceases to be a lien as against the terre tenant.

account.-Chester Tube and Iron Co. v. Withington.-Opinion Defenses-Payments-Application of when made on open by STERRETT, J., May 3, 1880.-37 Leg. Int., 316. It is well settled that when a payment is made on an open account composed of various items of different dates, and no spe

cific application is made at the time by either debtor or creditor, the law will appropriate it to the oldest items of the account. But the debtor is not precluded in a suit

against him for work and materials, by reason of such payments, from showing bad workmanship and defective

materials as to any of the items of the account and claiming reasonable deductions therefor.