curred the driver was turning his wagon around the southeast corner of Spruce and Seventeenth streets, and the plaintiffs claim that it was with the intention of going south on the east side of the street. When no one was approaching with a desire to pass him with a vehicle, the driver had the right to use any part of the street not occupied by another, yet when he turned abruptly on Seventeenth street in the manner shown by the testimony he was taking the chance of a collision with other travelers going north on that street, whose rights at that place were superior to his.

Whether the boy could have seen the wagon on the street in time to prevent the collision, as claimed by the defendant, was not for the court to determine under the circumstances shown by the testimony. Nor was it for the court to say that his effort to free himself from his danger was a negligent act contributing to his injury. Even if he saw the wagon on Spruce street as he approached the corner, unless he could also see that it was too close to the curb to permit him to pass, he had a right to assume that the driver, if he did turn on Seventeenth street, would keep to the right so that he could pass between the wagon 195 and the curb. This was the rule of the road, and he had a right to act on the expectation that the driver would observe it: Baker v. Fehr, 97 Pa. St. 70. If, acting on this assumption, without any fault on his part, the boy was placed in a dangerous position by the negligence or carelessness of the driver, he will not be held to the same strict measure of care as under ordinary circumstances in attempting to relieve himself from a perilous situation.

We are of opinion that the case should have been submitted to the jury with proper instructions as to the rights and duties of the parties at the time of the accident. The facts developed by the plaintiffs' evidence did not warrant the court in saying as a matter of law that there was no negligence on the part of the defendant or that the boy's negligence contributed to his injuries. The facts of the case and the inferences to be drawn therefrom were clearly for the jury.

The objection by the defendant to the city ordinance offered in evidence by the plaintiffs was not well taken. While the ordinance in itself was not evidence of negligence, it may be considered with other evidence in ascertaining whether the defendant was guilty of negligence: Lederman v. Pennsylvania R. R. Co., 165 Pa. St. 118, 44 Am. St. Rep. 644.

The judgment is reversed and a venire facias de novo is awarded.

THE LAW OF THE ROAD requires persons meeting on a highway to bear to the right: See the monographic note to Riepe v. Elting, 48 Am. St. Rep. 368-370.

LAW OF THE ROAD.—A PERSON RIDING A BICYCLE on a public highway has the same rights in so doing as persons on horseback or using other vehicles thereon: Thompson v. Dodge, 58 Minn. 555, 49 Am. St. Rep. 533. He is placed upon an equality with persons riding or driving other vehicles, and is governed by the same rules. They have no rights superior to his: See the monographic note to Riepe v. Elting, 48 Am. St. Rep. 377, 378.

LAW OF THE ROAD.—A PERSON MAY ASSUME, while lawfully using a highway, that a fellow traveler will exercise ordinary care and prudence, and may govern his own conduct in determining his use of the road accordingly: See the monographic note to Riepe v. Elting, 48 Am. St. Rep. 372.

WENGER V. PHILLIPS.

[195 Pennsylvania State, 214.]

MALICIOUS PROSECUTION - LEGAL

ADVICE STAT

UTE OF LIMITATIONS.-An action for malicious prosecution cannot be maintained if it appears that such prosecution was commenced upon the advice of the district attorney, sought in good faith, and based on a full disclosure of all of the facts known to the prosecutor. The fact that the binding over was after the prose cution was barred by limitation does not make the prosecutor liable unless he persisted in such prosecution after he knew that it was barred.

MALICIOUS PROSECUTION-USE OF CRIMINAL PROCESS-PROBABLE CAUSE EVIDENCE.-Proof that criminal process has been made use of as a means to collect a debt is not conclusive in establishing want of probable cause and the existence of malice in an action of malicious prosecution. It is prima facie only, and while sufficient to shift the burden of proof to the defendant, it may be rebutted by other proof.

H. F. Eshleman, W. M. Hayes, A. E. Burkholder, and J. C. Hayes, for the appellant.

J. F. E. Hause and J. H. Baldwin, for the appellee.

219 FELL, J. There is no ground for the complaint that the charge is inadequate and misleading. It contains a full and accurate statement of the law applicable to an action for malicious prosecution, and the questions of fact raised by the conflicting testimony were clearly and fairly presented to the jury. The prosecution was commenced by advice of the district attorney. That this advice was sought in good faith and was based upon a full disclosure to him of all the facts known to

the prosecutor was not controverted. That the binding over was after the prosecution was barred by the statute of limitations did not make the defendant liable unless it appeared that he had persisted in the prosecution after he knew it was barred. This did not appear, and there was nothing from which his knowledge could be inferred. The district attorney, when consulted, asked whether two years from the date of the commission of the offense had elapsed, but he made no explanation of the requirements of the statute, and did not inform the defendant that it was necessary that an indictment should be found within two years.

The plaintiff's first and second points for charge were properly refused for the reason that there was no evidence to sustain them. They might well have been refused for the reason that if the facts stated therein had been sustained by proof an 220 instruction for the plaintiff would not have been warranted. Proof that a criminal process had been made use of as a means for the collection of a debt is not conclusive in establishing the want of probable cause and the existence of malice. It is prima facie only, and while sufficient to shift the burden of proof to the defendant it may be rebutted by other proofs: Prough v. Entriken, 11 Pa. St. 81; Schmidt v. Weidman, 63 Pa. St. 173.

The judgment is affirmed.

MALICIOUS PROSECUTION-ADVICE OF COUNSEL.-If, in an action for malicious prosecution, it is shown that the defendant, before the commencement of the prosecution, made a full and fair statement of the facts to counsel, and was advised that they constituted a criminal offense, and, believing and relying upon such advice, commenced the criminal proceeding, he is not guilty of malicious prosecution: Tryon v. Pingree, 112 Mich. 338, 67 Am. St. Rep. 398. See, further, the monographic note to Ross v. Hixon, 26 Am. St. Rep. 143-147.

IN AN ACTION FOR MALICIOUS PROSECUTION, EVIDENCE that the prosecution was to forward some private purpose of the prosecutor, as to obtain the payment of a debt, is admissible to show the absence of probable cause and to create an inference of malice: See the monographic note to Ross v. Hixon, 26 Am. St. Rep. 155, 156.

FERGUSON v. GRETH.

[195 Pennsylvania State, 272.]

BANKRUPTCY-PREFERENCES.-A judgment on a warrant of attorney to confess it, entered within four months of the filing of a petition in bankruptcy, is, regardless of the date of the warrant of attorney, within the meaning of a bankruptcy statute declaring that the holder cannot avail himself of a lien obtained by a judgment by confession "begun” against a person within four months before the filing of his petition in bankruptcy, if the lien was obtained while such person was insolvent. In such case it is not the date of the warrant of attorney authorizing the entry of judgment, but the date on which the judgment was actually entered that fixes the time from which the four months' period begins to run.

D. N. Schaeffer, for the appellant.

I. Hiester, for the appellee.

274 PER CURIAM. In this case a petition in bankruptcy against the defendant Greth was presented on April 3, 1899, upon which a contest arose as to the fact of his insolvency which was followed by an adjudication of bankruptcy on October 17, 1899. The appellant's judgments were entered against him on January 10, 1899, and as that date was within four months of the time when the petition was filed, the case was brought directly within the express words of the sixty-seventh section of the present bankrupt law. It is very clearly and forcibly shown in the opinion of the learned court below that it is not the date of the warrants of attorney authorizing the entry of judgment, but the date on which the judgments are actually entered, that fixes the time from which the four months' period begins to run. We do not see any escape from the conclusion thus reached, and we therefore find that there was no error in the order making absolute the rule to show cause why the fund in court should not be paid to the trustee in bankruptcy.

Order affirmed at the cost of the appellant.

LIMITATION AGAINST A JUDGMENT does not begin to run until its entry: Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491.

KAUFMAN v. BURGERT.

[195 Pennsylvania State, 274.]

WILLS-CONSTRUCTION-REPUGNANT CONDITIONS.

If an estate in fee is devised, and the testator attempts by a condition in the will to prevent its alienation except by will, the estate passes in fee to the devisee free of such condition, as well as free of a condition in the will against liability for the devisee's debts. Such conditions are repugnant to the estate granted and void.

I. P. Rothermel, for the appellant.

W. K. Stevens, for the appellee.

275 GREEN, C. J. There cannot be the least doubt that the estate given by the 276 will of Daniel B. Kaufman to his son, Cyrus William Kaufman, in the land in question is an absolute estate in fee simple. The devise is in the following words: "I give and devise unto my son Cyrus William, his heirs and assigns forever, from and after the expiration of eighteen years from the date hereof, the farm on which I now live situate in Maidencreek Township, aforesaid, bounded as follows," etc. The payment of some legacies was imposed, and a subjection to some reservations, but none of these affect the character or extent of the devise, or of the estate thereby created. In the later clause of the will, which is supposed to have diminished the estate below a fee simple, the testator directed as follows: "It is my will and I direct that the farm devised to my son Cyrus William shall not be liable for any debts of his contraction, nor shall the same be encumbered or sold for any of his liabilities, nor shall my son sell or dispose of any part thereof, but the same shall go and vest in his heirs unless he shall devise the same by his last will and testament, which he is authorized and empowered hereby to do." It is very clear that the estate devised was an estate in fee simple with power to dispose of the same by will but not by deed. In other words, an attempt was made to confer a fee simple estate shorn of a power to alienate except by will. The authorities are quite clear that in such case the estate in fee simple passes to the devisee and the condition against alienation is void.

The case of Jauretche v. Proctor, 48 Pa. St. 466, was almost precisely like this. Woodward, C. J., delivering the opinion, said: "Such, then, is this will, the devise of an absolute estate to the wife, with all the rights of a tenant in fee, except the power of alienation, and with direction that what may