The decree of the Orphans' Court is reversed, and the record remitted for further proceedings in accordance with this opinion, and it is ordered that the appellees, Adams Rhoads and William L. Rhoads, pay the costs of this appeal. Opinion by CLARK, J.

sive as to all matters contained in these respective | the decree of a Court of competent jurisdiction, accounts (Shindel's Appeal, 57 Penn. 45). the executrix, in the absence of any fraud or On the 20th January, 1883, the Orphans' unfairness, certainly cannot be required to pay it Court, pursuant to the 29th section of the Act of again. The refunding bonds filed in the Orphans' 24th February, 1834 (P. L. 80), entered a de- Court took the place of the money in the cree of distribution of the balance in the account- accountant's hands, and to these bonds, or to the ant's hands, as exhibited in her fourth account, residue of the estate yet to be accounted for, directing the distributees named to give refunding these creditors must resort for payment of their bonds, as required by the 41st section of the same demands. Act. It is stated in the appellant's paper-book and the appellees make no denial of the fact, that at the time of making this decree it was believed that the balance on the third account was sufficient to pay all the known debts or demands against the estate remaining unsatisfied, and this balance having been deducted from the aggregate funds in the accountant's hands, the residue being the balance on the fourth account, appeared to be due to the distributees. Simon P. Guldin Jan. '87, 332. had died in 1874, and this account was filed in 1882; full eight years had intervened, during which period creditors would be presumed to have made known their claims. Refunding bonds were thereupon duly executed, were approved by the Court, and filed, as required by law, and the money was paid out pursuant to the decree. In this state of the case, it is difficult to see upon what principle of the law the accountant can, in this form of proceeding, be held to pay these moneys a second time.

Distribution may be made, under the Act of 24th February, 1834 (P. L. 80), by administrators or executors at their own risk (sec. 58); or, under the direction of the Orphans' Court, after deducting all known demands (sec. 39), upon the distributee filing refunding bonds (sec. 41), and, where security is taken as provided by the Act, executors and administrators "are not liable for the assets so paid or distributed in respect to any claim or demand upon the decedent not previously made known to them" (sec. 57). Notice to creditors in this form of distribution is not required. So, also, distribution may be made by auditors duly appointed by the Court, of the estates of decedents, among creditors, where the assets are insufficient to pay the debts, under the Act of 29th March, 1832, sec. 19 (P. L. 194); and among heirs, legatees, or other persons entitled, under the Act of 13th April, 1840, sec. 1 (P. L. 319). In this form of distribution, notice to creditors and all other persons in interest being provided for, refunding bonds are not required.

There can be no question, therefore, as to the power of the Court to direct this distribution; the power is expressly conferred in the Act of 1834, and the Court having assumed the jurisdiction and entered a decree, all things will be presumed to have been rightly and regularly done. If, therefore, the money in the accountant's hands has been paid out and applied in obedience to

TRUNKEY and WILLIAMS, JJ., absent.

S. H. T.

February 28, 1888.

Rothermel v. Dumn.

Landlord and tenant-Leases at will_Leases from year to year-Notice-Evidence.

A. held certain real estate under a parol lease from B., which by payment and acceptance of the rent had been expanded into a lease from year to year. C. having purchased the interest of B. in the real estate demanded rent from A. from the date of the conveyance executed by B. A., on the contrary, claimed for a term of years under the parol lease from B. A. finally agreed to pay to C. $60 for rent, and received a receipt therefor. C. testified that this receipt, which was afterwards lost, contained a new contract of a lease executed to him by B., and that being uncertain as to for a term of one year from the date of the conveyance the date of that conveyance, a blank was left therein for the same; which blank was afterwards properly filled in. A., on the contrary, denied the statement of C., and alleged that he had only signed the paper after it was distinctly understood that no new lease was thereby created, and that his rights under the contract with B. were not to be affected thereby. A proceeding being subsequently instituted by C. against A. under the Act of April 14, 1863, to obtain possession of the real estate, it was shown that a notice to quit had been given more than three months prior to the expiration of the lease for one year according to the contention of C. If, however, the contention of A. prevailed, the notice was not given three months prior to the expiration of any one year, under the original parol lease from B., from year to year: Held, that it was for the jury to determine (1) whether the receipt was in fact, as testified by C., a lease for one year from the date of the conveyance by B., and if this was determined in the negative, then (2) whether the parties by said receipt had agreed to adopt that date as the beginning and end of the ensuing year, without prejudice, as a modification of the alleged existing contract; or under a new lease from C., as its rights might afterwards appear, to the rent of which the sum paid was to be applied.

Held further, that if either of these facts was found
time and he was entitled to recover.
for the plaintiff, then the notice was given by him in

Error to the Common Pleas of Berks County.
Appeal of Samuel H. Rothermel, from the

cited.

judgment of an alderman in a proceeding insti- and the portions of the charge of the Court above tuted against him by one James F. Dumn, under the Act of April 14, 1863, to recover possession of real estate leased to Rothermel.

The facts of this case, as they appeared on the first trial, are fully stated in the report of the case in 17 WEEKLY NOTES, 292. Verdict and judgment were entered for defendant. On writ of error said judgment was reversed, and a venire facias de novo awarded.

On the second trial of the case, before HAGENMAN, P. J., the facts appeared precisely as on the former trial. The plaintiff requested the Court to charge, inter alia, as follows:

C. H. Ruhl (Daniel Ermentrout with him), for the plaintiff in error.

H. Willis Bland (Rothermel & Bro. with him), for the defendant in error.

April 16, 1888. THE COURT. When this case was here before, we held that under the Statute of Frauds the alleged parol lease, from Maria Stichter to Rothermel, was but a lease at will, which, by payment and acceptance of the rent, had been expanded into a lease from year to year. (Dumn v. Rothermel, 112 Penn. 272.) And it is conceded, as the case is now presented, that this was the legal effect of the agreement referred to.

(1) If the jury believe that at the time Samuel H. Rothermel paid James F. Dumn his $60 rent, a receipt was given by Dumn specifying that the year was to commence on the 22d day of The deed from Maria Stichter was dated DeDecember, 1881, and that Dumn gave the three cember 22, 1881, and Dumn claimed the rent months' notice to quit, as testified to by him, the from that date. When the parties met at Bernverdict of the jury should be for the plaintiff, hard's office, Rothermel insisted upon his right James F. Dumn. Answer. This point is affirmed. to a lease for ten years, which right Dumn denied, (2) Samuel H. Rothermel not having denied and this was the subject of dispute between the that the receipt specified the date of the com- parties. The receipt, which was there written mencement by the lease as the 22d of December, and signed, embodied the terms of a new lease 1881, and the evidence of the plaintiff upon that for the term of one year only, the rent specified subject being uncontradicted, if the jury believe being $60. Dumn testifies that when the receipt the testimony of James F. Dumn, and J. G. L. was signed, it contained the contract of the parBrownwell, Esq., as to the time fixed in the re-ties; that, as he was only entitled to the rent ceipt as the commencement of the term, the plain-after the date of the Stichter deed, the receipt tiff is entitled to recover, and the verdict should was left with Bernhard to insert that date as the be in favor of James F. Dumn. Answer. This beginning of the term, which was afterwards point is affirmed.

The Court charged, inter alia, as follows: "From this testimony the jury is to ascertain whether, as contended for by the plaintiff, this receipt specified that the lease was to begin on the 22d of December, 1881. If you find that fact, and the other fact that notice was given on about the 21st or 22d of September, 1882, these proceedings were regular and the plaintiff is entitled to your verdict. . . . . Now, when you have a positive statement of a witness that the receipt contained what was the terms of the lease, and that receipt passed into the hands of the other party, and that receipt is not produced, and the other party says he does not know whether that was in the receipt or not, it is for the jury to say whether or not they should give the greater weight to the testimony which recites the contents of that receipt. And if the contents of that receipt were such, and the money was paid and received, that the term was to begin on the 22d of December, 1881, the plaintiff is entitled to recover. If it was not so your verdict will be in favor of the defendant for such damages as you may find him entitled to."

Verdict for the plaintiff and judgment thereon. Whereupon the defendant took this writ assigning for error, the answers to plaintiff's points as above,

done. Rothermel denied this statement of Dumn, and alleged that he signed the paper only after it was distinctly understood that no new lease was thereby created, and that his rights under the contract with Maria Stichter were not to be affected thereby. Dumn was corroborated by the paper itself, and Rothermel by the testimony of Bernhard.

The fact that the receipt was written and signed is not denied, nor is it disputed that the date of the Stichter deed was for some purpose to be inserted. The first question of fact for the consideration of the jury, therefore, was, whether or not the writing referred to was in fact what it purported to be, a lease for one year from the 22d of December, 1881, as testified by Dumn, and if that was determined in the negative, then, second, was the 22d of December, 1881, adopted, without prejudice, as a modification of the alleged existing contract, as to the beginning and end of the ensuing year, under the Stichter lease, or under a new lease from Dumn as Rothermel's rights might afterwards appear, to the rent of which year the sixty dollars was to be applied. It is not seriously denied that this date was to be inserted; indeed the testimony is wholly to this effect; the paper admittedly remained in the hands of Bernhard, by the agreement of the par

If either of these was dated August 31, 1885, and the last upon
May 27, 1887.

The claim was filed June 25, 1887, for work,

labor, and materials, against a three-story brick and stone hospital building, owned by the association defendant, for work and labor done and materials: tin flues and ranges, furnished and provided by the claimants continuously, at the request of the said McNichol and the said claimants.

The bill of particulars consisted of charges for materials, etc. furnished, the first item of which

The terms of the Act of June 17, 1887 (P. L. 413) are directly applicable. The second section provides in effect, that where the right to file a lien is given by the laws existing at the date of said Act, "for work done or material furnished, etc.," such lien can only be filed in accordance with the provisions of said Act. As to the force to be given to the grammatical meaning of this language the remarks of this Court, in Penna. R. R. Co. v. Duncan (17 WEEKLY NOTES, 192), are fully applicable.

The Act relates to a cumulative remedy given to a particular class, and there is no reason for a presumption that the alteration which is made in the law was to be at all postponed beyond the date of the Act, or that any case coming within its terms was intended to be excluded.

Hogg v. Ashman, 2 Nor. 80.
Com. v. Duffy, 96 Pa. St. 506.

The power of the Legislature to pass such an
Act and apply it to existing cases is undoubted.

Evans v. Montgomery, 4 W. & S. 218.
Corkey v. Hart, 14 N. Y. 30.

Watson v. N. Y. Cent. R. R., 47 Id. 157.

April 16, 1888. THE COURT. Assuming the truth of the facts set forth in the several affidavits of defence, we think there was sufficient to send this case to the jury. The lien was filed 26th June, 1887. The only items charged within six months are two soap-stone hearths, 9th March, 1887, $18.50, and a laundry stove and pipe, 27th May, 1887, $25.00; the last items preceding these having been delivered about eight months before the lien was filed. The affidavit sets forth that the hearths were furnished by the plaintiff "gratuitously" to supply the place of two other defective hearths of similar size, previously furnished and charged, more than six months before the filing of the lien; that these hearths were furnished simply to make good the previous charges, and that on the day of the entry of the charge of the $18.50, a corresponding credit was entered for the same amount; that

the entries were made merely for convenience in bookkeeping, and do not represent such a transac

tion as would extend the lien.

The items of the claim indicate that the work

William Henry Lex, for defendants in error, was substantially completed on the 30th of Octocited

Dimmick v. Cook, 19 WEEKLY NOTES, 239.

ber, 1886, and if the hearths were subsequently put in by the contractor, merely to compensate

As to the effect of Acts similar to that of June the deficiency in the work which had been pre17, 1887, he cited

Taylor v. Mitchell, 7 P. F. Sm. 209.
Fahnestock v. Wilson, 14 Nor. 301.
Sutton ". Clark, 7 WEEKLY NOTES, 437.

viously done, in order to make good the charges already embraced in his claim, we are of opinion this should not operate to extend the time for

Penna. R. R. Co. v. Duncan, supra, does not filing of the lien.

apply.

Hogg v. Ashman, 2 Nor. 80.

Com. v. Duffy, 15 Id. 506.

Evans v. Montgomery, 4 W. & S. 218.

The Act of June 17, 1887, is unconstitutional upon two grounds: 1. Article III., section 3, of the Constitution provides that "no bill, except general appropriation bills, shall be passed, containing more than one subject, which shall be clearly expressed in its title." The Act in question is clearly a supplement to the Acts of June 16, 1836, and April 16, 1845, as will appear by the first section, and the title of the Act is simply "An Act relating to the liens of mechanics and others upon buildings."

The case is similar in principle to McKelvy v. Jarvis (87 Pa. 414). There the contract was for the plumbing of two houses, and the work had been completed before 1st April, 1876, whilst the lien was not filed until 10th November, in the same year; but on or about 18th June, 1876, the defendant called the plaintiff's attention to the fact that he had neglected to put in a street washer; the plaintiffs said the contract did not call for a street washer, but for two hose plates, one for each house; and that they, the contractors, had overlooked them, and forgotten to put them in; that they and the defendant then and there made an agreement that the plaintiffs should be released from their undertaking to put in the hose plates, and, in consideration thereof, the plaintiffs agreed to put in a street washer, near 2. Article III., section 6, of the Constitution the curb on the outside of the sidewalk, and that provides that "no law shall be revived, amended, they did so. The Court (SHARSWOOD, J.) said, or the provisions thereof extended or conferred, if the jury, from the testimony believed" that by reference to its title only, but so much thereof the street washer was outside work, done to comas is revived, amended, extended or conferred, pensate the deficiency in the work done under shall be re-enacted and published at length.' "the contract, it ought not to preserve the lien." By the Act of June 17, 1887, the provisions of the Acts of June 16, 1836, and April 16, 1845, are extended to and conferred upon another class, to wit, "sub-contractors, mechanics, and laborers."

Ruth's Appeal, 10 WEEKLY NOTES, 498.
Railway Co.'s Appeal, 32 Smith, 91.
Dorsey's Appeal, 22 P. F. S. 192.

Donohugh v. Roberts, 11 WEEKLY NOTES, 186.

It was intimated, however, that if hose plates had been provided for in the contract, and the street washer was put in under the contract, as a substitute therefor, at the owner's request, the street washer would constitute part of the lien. So here if the hearths had been removed, not because of

Held, to be error.

The date of such a release does not restrict or limit its operation. If made before the work began, or at any time during its progress, it is operative to discharge the building from lien as completely as though made after its completion.

any deficiency in them, but to replace them with | therefor. Upon the trial B. produced a receipt for the another kind or quality at the owner's request, upon balance alleged to be due, and offered the release in the same footing as the work already done,a different evidence. Objection having been made that the release was irrelevant, and because the work claimed case would be presented. In McKelvy v. Jarvis, for was done after its execution, the Court rejected the the materials were furnished in pursuance of an offer: entire contract; here the lien was for work done and materials furnished continuously towards the erection of the building under the Act of 1845; but this difference in the facts will not render the rule inapplicable. It is the continuity of the claim which must give it effect; and if the work was practically complete in October, 1876, and the hearths were supplied six months afterwards, simply as a substitute for defective materials already furnished, they cannot be said to have been delivered during the ordinary progress of the work, and in continuance of the claim, and it follows that such a charge would not extend the time for filing the lien.

The laundry stove, it is stated, was "a small portable stove, for heating flat-irons;" "it was in no sense any part of the building;" "it was not used or intended to be used in the construction or operation" of the building; it was "an ordinary piece of personal property," "as much adapted for use in one laundry as in any other." If this be so, it is idle, we think, to suppose that such a charge could extend the time in which to file a lien against the building.

The judgment is reversed, and a procedendo awarded.

Opinion by CLARK, J.

TRUNKEY, J., absent.

Jan. '88, 367.

delphia County.
Error to the Common Pleas No. 2, of Phila-

Sci. fa. sur mechanic's claim, by Lemuel L. Williams and John H. Cloak, trading as Williams & Cloak, against Samuel H. Brown, owner and contractor, for materials, work, and labor furnished for four adjoining brick stores and dwellings on Kensington Avenue in the city of

Philadelphia.

The facts, as they appeared upon the trial, are set forth in the opinion of the Supreme Court, infra.

A verdict for plaintiffs for $140.66 having been entered, this writ was taken and the exclusion of evidence referred to by the Supreme Court was assigned for error.

on

James M. Beck, for plaintiff in error, relied

Long v. Caffrey, 12 Nor. 526.

Given v. Church, 11 WEEKLY NOTES, 371.
Denkel's Estate, 1 Pearson, 203.

Henning v. Fry, 23 Pitts. L. J. 125.

H. Ĉ. O.

Hills v. Elliott, 16 S. & R. 56.

March 20, 1888.

Brown v. Williams et al.

Mechanics' liens-Release of- When general-A general release of liens made before the work begun or at any time during its progress discharges the building from lien as completely as though made after its completion.

Church v. Allison, 10 Barr, 413.

White v. Miller, 6 Har. 53.

Norris's Appeal, 6 Casey, 125.

Frank S. Christian, for defendant in error, cited

White v. Miller, 6 Har. 53.

Hinchman v. Graham, 2 S. & R. 170.

April 16, 1888. THE COURT. The first assignment of error raises the only important question in this case. The plaintiff below contracted with Brown to lay the brick for nine dwelling houses. Four of these fronted on Kensington Avenue, and five on Ruth Street. They were built to sell, and in order to enable Brown to make sales as opportunity offered, the mechanics and material men executed to him a release of liens. The release recites that the subscribers

B. built certain houses for which W. furnished and laid the bricks. While the buildings were in process of erection, in order to enable B. to make sales as op portunity offered, W., with other mechanics and material men, executed a release of liens which recited, inter alia, that they "agreed to release all liens which we, or any or either of us, have or might have on said buildings," for work or materials furnished" had erected four brick dwellings and stores" on for their erection; and then declared that for certain Kensington Avenue, and bad "agreed to release considerations "we have ... and do remise, release, and forever quit-claim unto the said B. and to his all liens which we or any or either of us have or heirs. . . . etc., all and all manner of liens, claims, might have on said buildings" for work or maand demands whatsoever which we, or any or either terials furnished for their erection; and then deof us, now have or might or could have on or against clares that in consideration of the premises and the said buildings and B. for work done or materials one dollar in hand paid "we have remised, refurnished for erecting and constructing the said buildings." Subsequently to the execution of this release leased and forever quit-claimed and by these W. did other work upon the buildings and filed a lien presents do remise, release, or forever quit-claim