annoyance to the plaintiff and his family, is apparent from the title, and is conceded by the demurrer. Has the defendant a right to maintain these openings?

It must be conceded that if the defendant, or those under whom he claims, had constructed this portion of the wall entirely upon his own property, he would have had the right to leave openings therein. But having used his neighbor's ground, in part for his foundation, can he, by receding at any point above to his own line, deprive the adjoining owner of the substantial benefits of a party-wall? One of those benefits is the right to build thereto upon making compensation; another is the right to have a solid wall (without openings) of brick or stone, or other incombustible materials. "If the first builder does not comply with the law, and make the wall a solid one, he becomes a trespasser and wrongdoer." In Vollmer's Appeal, and other cases cited, in which the parties had been enjoined from using openings, the walls were admitted party-walls their entire length and height. It would seem, however, as if the present case comes within the reason of the rulings referred to. The character of the wall must be determined in part from its foundation. If the builder starts the latter upon the line, and thus takes the land of the adjoining owner, he must carry it up strictly as a party-wall, or at least, in such manner, as to give the adjoining owner all the benefits of such a wall. Otherwise, the land of the latter would be taken without any corresponding benefit.

The demurrer is overruled.

Wm. McCandless, Esq., for plaintiff.

E. Coppee Mitchell, Esq., for respondent.

[Leg. Int., Vol. 30, p. 84.]

ASSIGNED ESTATE OF TRUITT, BROTHER & Co.

1. An assignee may be charged in his second account with items received prior to the filing of his first account.

2. An assignee will be charged with interest on balances in his hands, where he has neglected to perform his duties faithfully.

3. Brown's Est ite, 8 Phila. Rep. 197, followed and approved.

4. The inventory is prima facie evidence of the amount of the assignee's liability. 5. An interested witness and party cannot prove a writing which was made prior to the death of the other party.

Opinion delivered March 8, 1873, by

PAXSON, J.-This case "bristles with exceptions." Thirteen have been filed on behalf of Jos. B. Dunn, the present assignee, and fifteen on behalf of the administrator of Charles Boggs, deceased, the former assignee. A considerable number of said exceptions relate to alleged errors of the auditor upon the facts. As the evidence has not been brought up, we have no means of correcting his rulings thereon, if erroneous. This disposes of the 1st, 3d, 4th, 5th, 6th, 7th, 8th, 9th, and 10th exceptions filed by Mr. Dunn, and of the 10th, 11th, 12th, 13th, 14th, and 15th exceptions filed by the administrator of Charles Boggs. In disposing of the remaining exceptions, we will take up first, those filed on behalf of Joseph B. Dunn, the present assignee.

The second of said exceptions alleges error in ruling out certain items, because they were received by Mr. Boggs, prior to the filing of his first account, although not included therein."

The assignment is dated September 20, 1861, and the first account. was filed December 13th, 1862. Charles Boggs, the assignee, died on November 21st, 1868. The auditor reports, that in his opinion, the investigation is limited to transactions between the filing of the first account, and the death of the assignee. The reason for this conclusion is, that the terms of the reference do not extend beyond the time referred to. The present assignee presented his petition to the Court of Common Pleas, praying for a citation against the administrator of the former assignee, to show cause why an account should not be filed. The petition sets forth, that the petitioner "has reason to believe and avers, that assets of the said estate to a large amount came to the hands of the said Charles Boggs, after the filing of his said account, of which no account whatsoever has been rendered." To this petition, and the citation issued thereon, the administrator filed an answer, setting forth his inability to file such account, for lack of materials so to do, and his want of knowledge as to the condition of the assigned estate. Whereupon, an auditor was appointed by the court to state a second account.

I do not think the averment in the petition, that assets came into the hands of the first assignee, after the filing of said first account, of itself limits the auditor to such items. The order to him is to state an account; the statement referred to in the petition is merely the reason why such account should be stated. In so stating it, everything not previously accounted for should be included.

It was alleged, however, by the learned counsel for the administrator of the first assignee, that as to all matters which were, or might have been passed upon by the auditor on the first account, the confirmation of his report is conclusive as to all the world: Moore's Appeal, 10 Barr, 435; Groff's Appeal, 9 Wr. 379; Taylor vs. Cornelius, 10 P. F. S. 187; Weber vs. Samuels, 7 Barr, 526; and Rhoad's Appeal, 3 Wr. 186, were cited in support of this view. All of these cases refer to matters which were either embraced in the prior account, or were known to parties, and might have been the subject of surcharge in said prior account. None of them reach the case of an accountant who has received divers sums of money, which he has altogether omitted from his account, and of which the creditors had no knowledge. This amounts to fraud. I am not aware that it has ever been held, that an accountant, who by either fraud or mistake, omits to charge himself in his account with money actually received by him, may not be sur-charged therewith ina subsequent account. To do so, would open a wide door to fraud. This exception is sustained.

I think the eleventh exception is well taken. The auditor does not give us any reason for declining to charge the former assignee with interest on balances in his hands. This assignee utterly neglected his duties for years, kept no accounts of the estate, wasted the assets in debauchery, leaving his successor in the trust, the creditors and his unfortunate securities in the dark as to the condition of the estate. This question was fully discussed in Brown's Estate, 8 Phila. Rep. 197. The auditor would do well to adopt the rule pursued in that case, in allowing a proper balance for contingencies, and a reasonable time for investment. The twelfth and thirteenth exceptions are also sustained to the extent of charging the said Charles Boggs with the amount of the inventory

filed, less the amount accounted for in the prior account. The inventory is prima facie evidence of liability. It is for the accountant to discharge himself therefrom. This he may do by showing items already accounted for, or which could not be collected. The auditor has not formally charged the assignee with the inventory. In fact, he has not stated an account at all in the proper sense of the term. These errors of form can be corrected in a supplemental report.

It remains to dispose of the exceptions filed by the administrator of Charles Boggs.

I see no error in admitting in evidence the letter-book, containing press copies of letters from Charles Boggs to the creditors. It was the assignee's own book, and was evidence against him. Foot vs. Bentley, 44 N. Y. R. 166, does not apply. This disposes of the first exception. The second is dismissed for the reason that this case is not within the bar of the statute, or of any analogy thereto. The third and fourth exceptions are virtually disposed of by what has already been said in another part of this opinion. The fifth exception is novel. It is alleged that the auditor should not have sur-charged Charles Boggs with any items for the three years next preceding his death, because of his continued intoxication during that period. This exception is dismissed. Nor do I see the force of the sixth exception. The question as to the indorsement of Charles Boggs, is not one of reasonable doubt, but of the weight of the evidence. I cannot say the auditor was wrong. The seventh, eighth, and ninth exceptions all refer to one question, viz.: The admission of the evidence of Charles B. Truitt, Samuel L. Kreutzborg, Joseph H. Dann, and Thomas D. Watson. It was objected, that these witnesses were all incompetent by reason of interest; and that they are not admissible under the statute, because their testimony relates to mat'ters prior to the death of Charles Boggs. Of these witnesses, the first and second were the assignors; the third is the present assignee. Each of these is a party to the record, and for that reason incompetent to testify as to any facts occurring prior to the death of Charles Boggs. It is alleged, however, that Dunn was only called to prove the handwriting of Mr. Boggs. But the very writing which Dunn was called to prove, was made or executed prior to the death of Mr. Boggs. The latter is not here to speak in regard to it.

We think this case comes within the prohibition of the act of assembly. But no such objection applies to Thomas D. Watson. He is not a party, nor had he any interest. His testimony, therefore, was properly received. The three exceptions last named are sustained to the extent of excluding the evidence of Truitt, Kreutzborg, and Dunn, and all of the items referred to, so far as they depend exclusively upon their testi

mony.

The 7th, 8th, and 9th exceptions filed by the administrator of Charles Boggs, are sustained. The balance of his exceptions are dismissed.

The 2d, 11th, 12th, and 13th exceptions filed by Joseph B. Dunn, are sustained. The balance of his exceptions are dismissed. The account is referred back to the auditor with directions to amend the same in accordance with this opinion.

E. Spencer Miller, Esq., for J. B. Dunn, assignee.

H. J. McCarthy and J. P. Montgomery, Esqs., for Charles Boggs' administrator.

[Leg. Int., Vol. 30, p. 85.]

IN RE CHARTER OF "THE REV. DAVID MULHOLLANd Benevolent SOCIETY OF MANAYUNK."

Charter will not be approved where membership is not restricted to citizens of this commonwealth, or where there is a provision that membership is to be forfeited upon enlistment in the army or navy.

Opinion delivered March 8, 1873, by

PAXSON, J.-We commend the object of this association, but we cannot give the charter our approval for two reasons, viz. :

1. The membership is not restricted to citizens of this commonwealth, and

2. It is provided by Article 11th, that any member "enlisting in the regular army or navy shall thereby forfeit his membership and all claims on the society."

We will not approve a charter with such a clause as this. It is against public policy. A corporation which is a creature of the law. ought not to proscribe its members for aiding the government which creates and protects it.

[Leg. Int., Vol. 30, p. 92.]

MARTIN vs. McDEVITT.

Will construed to pass a fee and not a life-estate.

Case stated. Opinion delivered March 15, 1873, by

PAXSON, J.-The question which this case stated raises for our determination is, whether under the second paragraph of the will of Mary Martin, deceased, an estate in fee passed to the devisees. The language of the will is as follows:

"2d. I order to my son Michael, and my daughter Ellen, the house in which I now reside, No. 4353 Main street, Manayunk, to be divided equally between each of them."

The commencement and conclusion of this will are evidently copied from a form book. The devising part of it is inartificially drawn, as the paragraph above cited indicates. The will is short, and the testatrix signs by her mark. There is no limitation over.

Did the testatrix intend to give her son and daughter a fee in the house? If she did, her intention must govern, as there are no words in the will to control it.

She appears to have disposed of all her property. To her daughter Anne she gives $300; to her granddaughter $100; while her furniture is ordered to be sold, and the proceeds given to her daughter Ellen. Are we to presume that she intended to give Michael and Ellen a life-estate only in the house, and to die intestate as to the remainder? On the contrary, we think the intention, gathered from the four corners of the will, manifest that she designed to give a fee, and not a mere estate for life. Judgment for the plaintiff in the case stated for the sum of one hundred dollars.

Edward R. Worrell, Esq., for plaintiff.
D. B. Meany, Esq., for defendants.

[Leg. Int., Vol. 30, p. 100.]

WEST PHILADELPHIA PASSENGER RAILWAY Co. vs. SAML. C. PERKINS et al., Commissioners for the Erection of Public Buildings, and the City of Philadelphia.

1. The building commissioners have no right to obstruct the Market street railroad in their route along Market street.

2. The railroad company has no right to alter its course, nor can the commissioners confer such right upon them.

Opinion delivered March 22, 1873, by

ALLISON, P. J.-The motion made and argued by the defendants, asks the court to dissolve the preliminary injunction granted on the 14th October, 1872. The order restrained the defendants, until hearing, from removing, cutting, or in any manner interfering with or disturbing the track of the West Philadelphia Passenger Railway Co. upon Market street, between Merrick and Juniper streets, as the same now exists, or from abridging or preventing their use or enjoyment.

The averments of the bill are not denied; on the contrary, they are fully confessed by the defendants, and the motion before us rests solely upon the act of assembly, approved the 5th of August, 1870, (P. L. of 1871, page 1548,) to provide for the erection of public buildings to accommodate the courts, etc., of the city of Philadelphia.

The defendants claim that this act confers not only the authority, but imposes upon them the duty, of erecting the proposed buildings upon the ground now covered by the tracks of the railway of the plaintiffs, and assert their intention to proceed to take up said tracks on Market street, between Merrick and Juniper streets.

Have they the authority, as the case now stands, to carry into effect this purpose?

The act of August 5, 1870, gives forth no uncertain or doubtful utterance. The commissioners have full power to procure plans for the buildings, employ all necessary agents to construct them, to "do all other acts necessary in their judgment to carry out the intent of said act in relation to said public buildings." They may make all needful contracts which are made valid and binding in law upon the city, and "they shall have authority and are empowered to vacate so much of Market and of Broad streets as they may deem needful." It does not appear from the bill filed by the plaintiffs that there has been any formal execution of this power to vacate the portions of these streets which lie between Merrick and Juniper streets; but in the most practical manner they are about to take them from the public as highways, and to take them from the plaintiffs also for the use of the railway, thus cutting their road in two and depriving them of all lawful connection between the portions of the track which extend eastward and westward from the site of the buildings to be erected.

There are, however, important considerations set up in the bill against this admitted purpose of the defendants. The plaintiffs claim a grant from the Legislature, approved May 14th, 1857, to use the portion of Market street in question for the construction of their railway: (P. L. 1858, page 585. This grant gives to them the authority to construct a double or single track of railway from the intersection of Till, now