off in the custom of McCann, amounting to over | rule to pay a fund arising from a sheriff's sale $5000, in the last fifteen months of his lease. upon certain confessed judgments, into Court, and While it is true that this testimony does not fur- for feigned issues to be framed to determine cernish the data for an exact calculation of the dam-tain material facts in dispute relating to the disages sustained by McCann, it is also true that the tribution of said fund. Court would not have been justified in withdraw- The facts of the case are as follows: On May ing it from the jury by an instruction that the 18, 1887, Schwartz & Graff issued an attachment plaintiff was entitled only to nominal damages. under the Act of March 17, 1869, against WilHe had suffered a very considerable loss, as his liam Nichols (C. P. No. 3, June Term, 1887, books clearly showed. The continuous sale of No. 127) to recover a debt due by him amountdrink in the room between his own and the en-ing to $434.85. Under this writ all of Nichols's trance to the theatre afforded one reason, and an goods and effects were attached. The same propadequate reason, for the falling off in his own erty had been levied upon prior to the attachbusiness. The sale was in direct violation of the ment under two writs of fieri facias, issued on agreement of the Brewing Company. May 9th and 11th, 1887, respectively, upon We do not see how the Court below could judgments entered by confession against William have done otherwise than to submit this evidence Nichols, on single bills under seal in favor of to the jury, with careful instructions as to their | Michael Mullin, trustee for Emeline Nichols, for duty in the premises. This was done, the Court $2441.25 (C. P. No. 3, March Term, 1887, No. instructing the jury, substantially, that it was 530) and Arthur T. Devereux for $1946 (C. their duty to ascertain, as correctly as they could under the evidence relating to that subject, what damage had been done to plaintiff by reason of the defendant's breach of the agreement not to permit the sale of liquors in the store occupied by Mrs. Reineman. The errors assigned are not sustained, and the judgment of the Court below is affirmed. Opinion by WILLIAMS, J. TRUNKEY and CLARK, JJ., absent. P. No. 3, March Term, 1887, No. 580). Nichols's property was sold at sheriff's sale on May 25, 1887, for $962. Schwartz & Graff, as lien creditors, then made application to Court of Common Pleas No. 3 (under the provision of the Act of June 16, 1836, as amended by the Act of April 20, 1846), for a rule to pay the fund into Court, and for feigned issues to be framed to determine certain material facts in dispute relating to the distribution of said fund. The petition of Schwartz & Graff, duly verified by affidavit, averred, inter alia, that there were material facts in dispute relating to said distribution, the nature and character of the same being set forth, in that March 20, 1888. the judgments confessed to Michael Mullin, trustee for Emeline Nichols, and to Arthur T. Devereux, were fraudulent and without bona fide Acts of June 16, 1836, and April 20, 1846—Dis- consideration, and that they were confessed and tribution of proceeds of sheriff's sale-Petition were being used for the purpose of hindering, deto pay fund into Court and for feigned issue-laying, and defrauding the other creditors of the Requisites of affidavits for. July '87, 165. C. K. Z. Schwartz & Graff's Appeal. In a petition by a subsequent lien creditor to pay the money realized from a sale under an execution, into Court and for a feigned issue, if the affidavit states affirmatively that there was no consideration for the judgments upon which the property was sold, and follows with an averment that the petitioner expects to be able to prove the same, the issue should be granted. It is not necessary to state the means by which the want of consideration is to be proved. If the affidavit alleges that the prior judgments are without bona fide consideration, and for the purpose of hindering, delaying, and defrauding other creditors, the Court has, under Acts of June 16, 1836, and April 20, 1846, no discretion but to award the issue. Appeal of Charles W. Schwartz and Albert Graff, trading as Schwartz & Graff, from a decree of the Common Pleas No. 3, of Philadelphia County. This was, in the Court below, a petition for a Isaid William Nichols. The Court discharged the rule to pay the fund into Court, and refused to frame issues. Whereupon petitioners took this appeal assigning for error: (1) The learned Court erred in discharging the rule for the payment of the fund arising from the sheriff's sale into Court, and in refusing to frame issues to determine the material facts in dispute relating to the distribution of said fund. (2) The learned Court erred in refusing the prayer of the petition, and not directing an issue to try the material facts in dispute. (3) The learned Court erred in not making absolute the rule for the payment of the fund arising from the sheriff's sale into Court, and directing an issue to try the material facts in dispute relating to the distribution. of the fund. John Sparhawk, Jr., for appellants. If material facts in dispute are set out in the affidavit, an issue is of right. It is sufficient if the affidavit alleges that the prior judgments are without bona fide consideration, and for the purpose of hindering, delaying, and defrauding other creditors. Lippincott v. Lippincott, 1 Phila. 396. The petitioner is not required to exhibit the evidence. It is sufficient if he states with precision the facts which the evidence tends to establish. Robinson's Appeal, 12 Casey, 83. If the affidavit is sufficient, the Court has no discretion but to award the issue. Dickerson's Appeal, 7 Barr, 258. Association v. McDonald, 5 Phila. 442. (No argument or brief contra.) made by Devereux to William Nichols. This is rather a meagre averment, but it is followed by another allegation that both judgments are fraudulent and without bona fide consideration, and have been confessed and are being used for the purpose of hindering, delaying, and defrauding the other creditors of William Nichols. The giving of the judgments without consideration is a material fact, and in a given case it may be that more than this cannot be stated. It is a case of alleged fraud, and the want of consideration would establish fraud if proved. It is not necessary to state in the affidavit the means by which the want of consideration is to be proved, but the fact itself, if affirmatively stated in the affidavit with an averment that the petitioner expects to be able to prove it, is sufficient to require the granting of the issue. The order discharging the rule to have the money paid into Court and for a feigned issue is reversed, and the feigned issue prayed for is awarded, and record remitted for further proceedings, the costs of this appeal to be paid by the appellees. April 2, 1888. THE COURT. We do not know upon what ground the application for an issue was refused in this case as no opinion was filed by the Court below, and no paper-book has been furnished us by the appellees. As it seems to us the facts set forth in the written application of the appellants for issues in the several judgments mentioned are quite sufficient, not merely to justify but to require the learned Court below to grant the issues prayed for. The language of the Act of 1836 upon this subject is peremptory. "If any fact connected with such distribution shall be in dispute the Court shall, at the request July '87, 151. in writing of any person interested, direct an issue to try the same.' The Act of 1846 (Purd. 764, pl. 113) directs that "the applicant for such issue shall make affidavit that there are material facts in dispute therein, and shall set forth the nature and character thereof, upon which affidavit the Court shall determine whether such issue shall be granted. Opinion by GREEN, J. W. M. S., Jr. March 20, 1888. Gaughan v. The City of Philadelphia. Municipal corporations-Highways-Sidewalks -Obstructions thereon- When corporation not liable for injuries caused thereby. Plaintiff's son, a boy seven years of age, while playing, climbed upon the top of a pile of barrels two rows high piled upon the sidewalk of a frequented street in the city of Philadelphia. From the topmost barrel he attempted to climb up an awning post and reach the cross-rail. In doing so, he lost his hold and fell into the street; and in falling, dislodged one of the barrels, which fell upon him and injured him so badly that he died. The pile of barrels had been upon the sidewalk for several weeks. Suit having been brought against the city for negligence in not having removed the obstruction, a compulsory nonsuit was entered: Held, not to be error. Oil City and Petroleum Bridge Co. v. Jackson, 18 WEEKLY NOTES, 407; 114 Pa. St. 321, followed. The determination of the Court must be based upon the facts set out in the affidavit, and this makes it necessary only to consider the character of the facts there set forth. Upon examining the affidavit in this case we find that it is alleged therein that as to $1100 of the judgment in favor of Mullin, the money was loaned by Mullin to Emeline Nichols, wife of William Nichols, and that there were no transactions between Mullin and William Nichols, that Mullin had stated he had no interest in the judgment other than the $1100, and that this was for a loan made to Mrs. Nichols; that Mullin had been settled with for the amount of that loan and had no longer any interest in the proceeding, Case, by Catharine Gaughan against the City and that as to the balance of the judgment the of Philadelphia to recover damages for the death same is without consideration. As a matter of of plaintiff's son, John Gaughan, occasioned by course, if these facts are true the Mullin judg- the alleged negligence of defendant in maintainment can have no claim upon the fund for distri-ing or permitting to be maintained a nuisance in bution. As to the Devereux judgment the the nature of a large number of empty casks averment is that it is claimed by Devereux to piled upon the footway of one of the streets in have been given for a loan, and that no loan was said city. Plea, not guilty. Error to the Common Pleas No. 3, of Philadelphia County. Upon the trial, before GORDON, J., the following facts appeared: The plaintiff, a widow, in May, 1885, lived with her children and mother at No. 3504 Market Street. Immediately adjoining the plaintiff's house on the east was the residence and tavern of Patrick Kelley. An iron awning post was erected near the curbstone on the division line, between Kelley's property and the plaintiff's, and from this post an iron rod at the top extended back to the house line at the point where the two houses adjoin. On Kelley's pavement, close to the curbstone, Kelley had piled eight or ten empty ale and beer half-barrels. The barrels were placed on their ends, and on top of the first row another row was piled, making them two barrels high. John Gaughan, a son of plaintiff, seven years old, at the time of the accident, was climbing up and sliding down the awning post. Holding on to the cross-rod near the awning post, he tried to change the position of his hands or to lift one hand over the other; his hold gave way and his feet being either upon or swinging against one of the top barrels, upset it; he fell into the cartway and the barrel fell on him and caused his death. The barrels, or some of them, had been there three weeks; no complaint concerning them was made by any one to the city; the plain tiff could see the barrels from her window. The barrels being placed close to the curb on the wide footway of Market Street did not obstruct or inconvenience travel. Several witnesses saw the deceased and other boys at play just before the accident, but the accident was seen by only two, whose testimony is set forth in the opinion of the Supreme Court, infra. At the conclusion of plaintiff's evidence the Court entered a compulsory nonsuit, which the Court in banc subsequently refused to take off. Plaintiff thereupon took this writ, and assigned for error the entry of the nonsuit and refusal to take it off. T. M. Daly, for plaintiff in error. The public authorities are charged with the maintenance of the highways, and when they neglect this duty the municipality is liable in case of accident. Twp. of Newlin v. Davis, 27 Sm. 317. Miller v. Beeber, 12 WEEKLY NOTES, 234. The defendant by ordinance declared the piling these barrels on the footway to be a nuisance, and was under a duty to have them removed. Such an obstruction was also a nuisance at common law. Wharton Neg. § 265. Com. v. Passmore, 1 S. & R. 217. Born v. Plank Road Co., 12 WEEKLY NOTES, 283. Schilling v. Abernethy, 17 WEEKLY NOTES, 364. Robert Alexander, assistant city solicitor (Charles F. Warwick, city solicitor, and Frank M. Riter, assistant city solicitor, with him), for defendant in error. The municipality is bound only to keep her footways in a reasonably safe condition for travel, and is not bound to keep them so absolutely safe that persons cannot be injured thereon. The cases cited by plaintiff all refer to injuries Oil City and Petroleum Bridge Co. v. Jackson, 4 rules this case. Whether a given state of facts admitted or proved constitutes negligence is generally a question of law to be declared by the Court. Goshorn v. Smith, 11 Nor. 438. The facts proved showed the boy was not injured by ordinary use of street, and he was for the purposes of this case a wrongdoer; this being the case, his parent cannot recover. Gillespie v. McGowan, 4 Out. 144. April 2, 1888. THE COURT. There were but two witnesses who saw the accident which resulted in the death of the plaintiff's child, and they thus describe the occurrence. Michael Gaughan: "I am brother of the boy who was killed; brother was upon top of barrels next door on Kelley's pavement. He caught on the awnthe awning post and made a grab for it and fell. ing post to save himself. He was sliding down He was standing on the top highest barrel that was there, then he went and tried to get hold of the awning post and grabbed it with one hand. He grabbed the post with one hand and let go of it to have room to put the other hand on and As to negligence on the part of the defendant, fell. The barrel that he had been standing on see Wetmore v. Tracy, 14 Wend. 250. Dillon Munic. Corp. § 1032. Shearman & Redfield on Neg. § 385. fell down and he fell under it." On crossexamination he said: "I was sitting on one barrel and my brother who was killed was sliding down the post, that is the post between my | between the city and the immediate cause of the mother's house and Kelley's house that he was accident. Moreover, the principle stated in the sliding down. He climbed on the barrels to the top of the post, and then he slipped and came down again. He was on the top of the highest barrel, and when he got on to the highest barrel then he reached over to the awning post, and when he had hold of the post he wanted to get room for the other hand. He was up at the top of the post and wanted to get room for his other hand, and he slipped and fell down into the mud gutter. Q. In falling did he hit the barrel? A. No, sir; the barrel slipped from under him, the top barrel fell down towards the gutter and he fell over this and the barrel went on him." Henry C. Stagg said: "I saw Johnny on top of upper barrel. Johnny was trying to climb the pole, and he slipped and fell down into the gutter and the barrel fell on him. I saw the barrel strike Johnny right across the breast." "At the time he fell down he was holding this way [witness indicating by holding up both hands], he was climbing up to the top, and when he got to the top he slipped off the top of the awning post and went down into the gutter, and as he went down to the gutter the barrel went down and fell on him." case of Oil. City and Petroleum Bridge Co. v. Jackson (114 Pa. Rep. 321) is directly applicable. The boy was in a place where he had no right to be. The awning post and connecting rod were not designed for the use to which he was putting them. He had no occasion of any kind to be there, and his being there at all was a source of manifest and imminent danger. In the Bridge case above referred to the boy was on the bridge, and crossing it, which he had a right to do. The means of his death was an open space at one side of the roadway, but in the floor of the bridge. He did not choose to use the roadway which was perfectly safe, but walked on an iron pipe which was over the opening in the floor, and while doing so he fell off the pipe and through the opening and was killed. We held the bridge company to be free of liability because the pipe was not intended for use as a passage way and the boy had no right to use it for such a purpose, and the roadway provided was amply sufficient and entirely safe. In the present case the facts are far stronger against liability of the city because the structure was in no possible sense a part of the highway, and was not designed in any circumstances for the use to which it was being put when the accident occurred. The presence of the barrels on the sidewalk was not the cause of the injury, and the fall of the top barrel would have been harmless if the boy had not already fallen into the gutter by losing his hold upon the awning post or connecting rod. Judgment affirmed. Opinion by GREEN, J. Jan. '88, 334. H. C. March 1, 1888. Appeal of Heffner et al. Will-Construction of—Real estate—Price Act The foregoing testimony was given by the plaintiff, and it constituted the whole of her evidence relating to the actual occurrence of the accident. Upon the merest inspection it shows that the death of her son was occasioned exclusively by his own wantonly reckless act of climbing up and sliding down an awning post, and swinging himself upon the cross rod connecting the post with the building. In the course of these exercises he lost his hold either upon the post or rod and fell down to the street below, in the gutter, and was killed. How the barrel came to fall upon him is not made clear, but it is perfectly certain that its fall was not due to any ordinary use of the sidewalk as a public highway. The probabilities are he struck the barrel in his fall and toppled it over, but it is not material, as the immediate and direct cause of the accident was the fall from the awning post. This fall was occasioned by his losing his hold either upon the When a testator by his will positively directs that post or the connecting rod. Now the post and real estate shall not be sold until his youngest child rod were perfectly lawful structures, such as are meantime is to remain in the hands of his executors, arrives at the age of twenty-one years, and in the in constant use in all parts of the city. To hold the Orphans' Court should not, without having said the city liable for the consequences of the reck-will before them, order a sale of said real estate before less antics of all the children who choose to make said period, inasmuch as it cannot say that a sale will these structures a means of amusement or adven-be "without injury or prejudice to any trust, charity, turous exercise would be establishing a rule of or purpose for which the same shall be held." liability never yet heard of. The case is simply destitute of the essential element of negligence specific averments as to the circumstances of the case, on the part of the city. It is certainly not negli-a description of the property, and a full statement of the gence to permit awning posts and connecting rods material provisions of a testator's will, reprehended. to be erected in front of buildings so long as they do not interfere with the use of the sidewalks. Yet this permission is the only connection The practice of drawing petitions for the sale of real estate under the Price Act in a loose manner, without Appeal of Benjamin Y. Heffner and Franklin Breidegam from a decree of the Orphans' Court of Berks County, directing the sale of certain The following paper was filed with the petition real estate belonging to the estate of Henry to which was appended the signatures of the Heffner, deceased. The petition presented to the Court for the sale of the real estate, was as follows: "The petition of Martin Heffner respectfully represents: That he is a son and devisee and heir of Henry Heffner, late of Richmond Township, Berks County, Pennsylvania, deceased. That said Martin Heffner is interested therefore in the estate of the decedent. That said decedent died testate, his last will and testament having been duly proven in the register's office, July 7, 1883, the decedent having died June 21, 1883, at 8 o'clock A. M. In his will is contained, inter alia, the following: "I do further order that my real estate, situate partly in Rockland Township and partly in Richmond Township, bounded by the lands of Jane Hottenstein, David Kemp, and James Schlegel, containing twentyfour acres, more or less, shall remain in the hands of my executor until the youngest child has attained the age of twenty-one years, then it shall be sold by my executor for the best price that can be gotten for the same. And I do hereby authorize and empower my executor or survivor of him to sign, seal, execute, and acknowledge all such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the above-devised premises unto my said sons; also to the purchaser or purchasers of the last named premises in fee simple." "Said decedent left surviving him a widow, Emma Heffner, who declined to take under the will, and the following children: Sarah, wife of Daniel Angstadt; Benjamin Heffner, Martin Heffner, Henry Heffner, Elizabeth, wife of Jared Hoch; David Heffner, Thama, wife of Bloch; Salome, wife of Owen, of whom Jonathan Biehl is guardian; John Heffner, of whom Franklin Breidegam is guardian; Kate Heffner, of whom Franklin Breidegam is guardian. "The said Salome is under age; said John Heffner is about 17 years of age; and said Kate Heffner is about 8 years of age. "That inasmuch as by the terms of the will the time for sale is postponed till the youngest child becomes of age, there is great danger that the property may depreciate in value, become out of repair, and decrease in productiveness; that if sold and the sum put upon interest it will yield more to those interested, because the farm, which consists of both woodland and cleared land, will not pay as well farmed as the money put upon interest would. It would certainly be to the advantage of all the parties in interest to have it sold. That your petitioner believes that the parties in interest desire it to be sold. Your petitioner, therefore, asks your Honorable Court to award an order of sale in accordance with the Act of Assembly in such case made and provided. And he will ever pray, etc." various children and heirs as set forth in the petition, except Benjamin Heffner: We, the undersigned, children and heirs of Henry Heffner, of Richmond Township, Berks County, deceased, in the matter of the petition presented for the sale of all that certain real estate of decedent in Rockland Township and Richmond, bounded by lands of Jane Hottenstein, David Kemp, and James Schlegel, containing 24 acres, more or less, respectfully join in the petition and ask it to be sold. And we will ever pray, etc." The said Benjamin Heffner filed an answer to the said petition as follows: " Benjamin Heffner, a son and legatee named in the last will and testament of Henry Heffner, deceased, in answer to the above-mentioned citation, says: That he has no desire to interfere with directions contained in the last will and testament of his father, Henry Heffner, deceased; that the tract of land, for the sale of which an order of the Court is prayed for, is iron ore land, and that iron ore was heretofore taken from said premises in considerable quantity, and that Henry Heffner, the testator, directed in his will that said tract of twenty-four acres of land should not be sold until the youngest of his children arrived at the age of twenty-one years, because it was his wish and will that the same might remain as part of his estate for that length of time, as he believed that in the time intervening further examinations and explorations for the discovery of iron ore might be made, and in case of finding a body of ore, believed to be on said premises, that the benefit thereof might accrue to his estate. That said tract of land at this time brings a reasonable annual rental. For these reasons the said Benjamin Heffner has declined to append his name to the petition praying for an order of sale of said property." Subsequently David H. Heffner and Emma Heffner filed petitions stating that they had signed the paper concurring in the original petition through mistake and withdrawing their assent to the sale. The case was heard by the Court on petition, answer, and proofs, and a decree was entered directing the sale in accordance with the prayer of the petition. Whereupon Benjamin Y. Heffner and Franklin Breidegam took this appeal, assigning for error the decree of the Court. H. Willis Bland (E. H. Shearer with him), for the appellants. C. H. Ruhl (Daniel Ermentrout with him), for appellees. April 2, 1888. THE COURT. In Johnson's Appeal (114 Pa., at page 142), we said: "We desire to say also, in order to avoid misapprehension in the future, that it is at least doubtful |