Demurrer for the following reasons:(1) The facts set forth do not constitute a good cause of action. (2) The statement is based on information and belief. (3) The plaintiff's means of knowledge are not set forth. (4) The affidavit, being upon information and belief, is defective. Maxwell Stevenson and H. A. McMurrow, for the demurrer. These words do not plainly impute an offence sufficiently infamous to sustain a criminal indictment or impose a legal disability. Hence they are not actionable. Harvey v. Boies, I P. & W. 12. Gosling v. Morgan, 8 Cas. 273. mechanic's lien against three houses and lots of ground situate in Orkney Street at the distance of 126, 138, and 150 feet respectively from Lehigh Avenue. Subsequently the three lots (excepting a sub-division of one of them) were sold at sheriff's sale. On April 24, 1888, these rules were taken to amend the lien by substituting for the figures 126, 138, and 150 feet from Lehigh Avenue the figures 226, 238, and 250 feet. And further to add, "that in accordance with the Act of Assembly due notice of the amount and character of the claim was given to Mrs. Georgia Etter Smith and John B. Smith on November 5, 1887, the material set forth in said lien having been furnished and delivered on the said premises, and the work and labor done between the 23d day The innuendo cannot change or vary the mean- of September, 1887, and the 5th day of Noveming of words spoken. McClurg v. Ross, 5 Binn. 218, 222. Gosling v. Morgan, supra. Lukehart v. Byerly, 3 Sm. 418. ber, 1887." The work and material had been furnished under the following contract with the main con Facts stated on information and belief are in- tractor: sufficient in an affidavit to hold to bail. PHILADELPHIA, September 23, 1887. We the undersigned' do agree to furnish all the brick and all lime and sand, and lay the same in three twostory houses in Orkney Street below Somerset Street for work to be done in a workmanlike manner. Not including front pavement and ranges. The same rule should apply to a statement, es- the sum of nine hundred and twenty-five dollars, all the pecially in cases of slander. Joseph G. McKenna, contra. In Pennsylvania, adultery is an indictable offence. It is for the jury to consider whether the words spoken sustain the innuendo. Gallagher v. Daly, 2 WEEKLY NOTES, 426. Diehl v. Perie, 2 Miles, 47. Hermann v. Ramsey, 5 WEEKLY NOTES, 188. The affidavit was drawn in accordance with the ruling of the case last cited, and no statement of the affiant's means of knowledge is ne cessary. THE COURT. Demurrer overruled. C. P. No. 2. C. C. B. Graham et al. v. Smith et al. $925.00. SAMUEL MORRISON. At the time of entering the rules to amend, the sixty days allowed by the Act of June 17, 1887, for filing liens had expired, but the six months allowed by the Act of June 18, 1836, and its supplements, had not expired. N. Dubois Miller and John Sparhawk, Jr., for the rules. Leave to amend is asked under sec. 2, of the This Act is to be liberally construed. The six months' limit has not expired, and, therefore, an amendment will be permitted. Knox v. Hilty, 20 WEEKLY NOTES, 524. If the Act of June 17, 1887, is to be construed as cutting down the rights of the plaintiffs to file a lien from six months to sixty days then the Act April 28, 1888. is unconstitutional, because it is by such construing made to amend the old law of June 16, 1836, Amendments of mechanics' liens-Substitution giving six months to the plaintiffs, and yet it of a different person and lot of land is not does not set forth at length so much thereof as properly an amendment-May be allowed sav-is amended, and thus comes within the prohibiing intervening rights. tion of Art. III., § 6, of the Constitution. Gardner v. Gibson, 21 WEEKLY NOTES, 121. But the intention of the Act of June 17, 1887, Sur rules to amend mechanic's lien. The plaintiffs on November 5, 1887, filed a was not to restrict but to facilitate the filing of liens, and to give to such sub-contractors, me- | for was plastering, and the materials set forth in chanics, and material men, who previously were the above four items were alleged to have been excluded, the right to file liens. furnished in connection therewith. William B. Lane, for the rule. Gibson v. Association, 21 WEEKLY NOTES, 63. Dwight M. Lowrey, contra. There is no precedent for such a charge in a The Act of 1879 was intended to allow tech-mechanic's claim as "hauling;" that is not work nical amendments where the lien does in some done "in the erection or construction of the way affect the premises; where the lien as in building." this case does not touch the property, the error is incurable-there is no lien on the property to amend. The description in this lien excludes the property which by the amendment is now sought to be affected. The case of Armstrong v. Hallowell (11 Casey, 485), which allowed such an amendment, was hastily decided and was merely a dictum on the point here involved. There can never be a trial on this lien: the premises have been sold at sheriff's sale, the lien, therefore, is only upon the fund in the sheriff's hands. Eldridge v. Madden, 7 WEEKLY NOTES, 226. C. A. V. Nor is the last item for the use of various tools a proper charge. There is no lien for materials sold on the credit of the buildings for merely temporary use, as scaffolding. Oppenheimer v. Morrell, 20 WEEKLY NOTES, 439. A rule to strike off is the proper practice. Shields v. Garrett, 4 WEEKLY NOTES, 140. Oakford's Estate. Personal property-Life estate in- When tenant for life entitled to have possession of the estate on giving security to protect remaindermenAct of May 17, 1871 (P. L. 269). April 30, 1888. THE COURT. On general O. C. of Bucks County. principles the substitution of an entirely different person and lot of land is not an amendment but an entire change in the action, and not within any of the statutes of Pennsylvania, liberal as they are. Of this opinion was the Court in Hansen v. Byrne (2 WEEKLY NOTES, 96). On the authority of Leeds v. Lockwood (3 Norris, 70), however, it would seem that such an amendment should be allowed and its effect left for future consideration. This rule is, therefore, made absolute, saving all intervening rights. Opinion by MITCHELL, J. C. P. No. 2. T. B. S. April 28, 1888. Sur exceptions to Auditor's report. Samuel Oakford died February 15, 1886, leaving a will which contained, inter alia, the following clause: "Fifth. I give and bequeath the remaining equal share of two-thirds of my estate as aforesaid to the said Edwin E. Fly and Elizabeth B Fly his wife, and the survivor of them in trust nevertheless that they or the survivors of them shall invest the same in good real estate security and pay the income thereof annually to my daughter Amelia during her natural life, and at her decease, to her children, but it is my will and I especially direct my said trustees not to pay Charles Sellers, son of my said daughter, Amelia, his share of his mother's estate, should he survive her, until he shall have attained the age of twenty-six years, and should my said daughter Amelia die without issue living then I direct that her share shall go to my other two daughters or their issue. And it is my will further that the estate given in trust to my said daughter Amelia shall not be governed or controlled by what is known in law as the Rule in Shelley's Case." On March 2, 1887, Amelia Sellers, the beneficiary for life under the above provision of testator's will, presented a petition to the Court praying for an order on the trustees, Edwin E. Fly and Elizabeth B. Fly, to pay over to her the sum of $6619.60, which they held under the above trust upon her securing those in remainder as provided by the Act of May 17, 1871 (Purd. Dig. 554, pl. 229). This petition was referred to Henry Lear, Esq., | the law of 1871 to such trusts as it was held the as Auditor, who reported in favor of granting old law applied to, we have in the two Acts what the prayer of the petition; and to this finding seems to be a distinction without a difference. exceptions were filed by the trustees. Louis H. James and Paul H. Applebach, for the exceptants, cited— McCann's Estate, 40 Leg. Int. 279. On the other hand, if we examine them for a more substantial difference, we at once discover a material addition in the new Act. It includes, not only bequests of personal property, but also Frederick Gaston and Joshua Beans, for the" of the increase, profits, or dividends thereof." petitioner, cited McCann's Estate, supra, dissenting opinion. April 12, 1887. THE COURT. The portion of decedent's estate bequeathed to Mrs. Amelia Sellers as her share in the same, is given to the trustees to invest in good real estate security, and pay the income annually to her during her life, and at her decease to her children. The learned Auditor is of the opinion that the Act of May 17, 1871, was intended to meet every case of a bequest to a person for life in whatever form it may be made, directly or indirectly, and to make it obligatory upon the person in whose possession the fund may be, in whatever capacity, to pay it to the person who takes a life estate therein upon security being given as required thereby; a possible exception, he says, might be a spendthrift trust, if we can imagine security being given in that instance. He reports in favor of granting the application of Mrs. Sellers for the custody of the fund, upon her giving security. The reasons given by the learned Auditor in support of his conclusions seem to us entirely satisfactory; but the trustees, relying upon the case of the Estate of John McCann, Deceased (40 Leg. Int. 279), insist that his deductions are incorrect. The case was not cited to the Auditor. It holds that the Act of May 17, 1871, does not apply to active trusts, but only contemplates what are termed dry trusts. We are unable to agree with the conclusions thus reached by the Orphans' Court of Philadelphia County, and think that the restricted construction they place upon the Act of 1871 fails to meet the scope of the legislative intent. It is hardly possible that the sole purpose of the Act was merely to change the method of doing what had already been provided for. If we consider the subject matter of the two Acts, it is not a sufficient explanation of the new law to say that the first, the Act of 1834, enables the executor to demand security before paying the property over to the person having but a life interest, and the other requires him to pay it upon security being given; for the Act of 1834 contemplates that the executor may be compelled to make payment upon security being given, and the practice has been to order him to do so. If, therefore, we limit the operation of When the Legislature injected these words into the new Act there was a purpose intended. What is more probable, in view of the interpretation of the Act of 1834, than that the object was to avoid any supposed distinction as to the character of the trust by which the principal fund might be controlled? It is now wholly immaterial what the character of the trust may be ; the Act of 1871 is comprehensive enough to include the property bequeathed in every case where there is a beneficiary for life of the fund, and no fiction of making the bequest directly to others with active and cautionary duties to perform, can deprive the beneficiaries for life of the custody of the fund if security be given. Upon saving harmless the rights of the remaindermen they become the trustees of the fund bequeathed for their benefit. The Act of 1871 also provides that any married woman availing herself of the benefit of the Act shall have power as a feme sole to bind her separate estate and property by any obligation given by her as security under the Act. The learned Auditor very truly says: "We cannot imagine a life estate given to a married woman in any other mode than by the creation of a trust, and the Courts have not gone further in upholding any species of trust than in favor of a trust for coverture; such a trust is particularly active." Care was taken, however, not to include in the Act that class of trusts which are intended to be preserved for the benefit of the cestui que trusts themselves, such as a spendthrift trust, and trusts for separate use. It contemplates, as we think, only those trusts where there are "interests of persons entitled in remainder" to be preserved. We feel constrained to follow what we consider the stronger reasoning of the dissenting Judge in McCann's Estate (40 Leg. Int. 287). A strong argument in favor of the view we take of the Act is that the legatee is thus enabled to enjoy the full measure of the testator's bounty without suffering the deductions arising from commissions, expenses, etc. The recommendation of the Auditor is approved, and it is ordered that, upon security being entered, to be approved by the Court, the fund shall be paid to the petitioner. Opinion by YERKES, P. J. C. K. Z. ACTS OF ASSEMBLY—Continued. 1885, June 30. 1887, April 1. 1887, May 13. 1887, June 2. 1887, June 17. Taxation. 306, 537. 521, 522. Mechanics' Lien. 63, 64, 121, ADVERSE POSSESSION. Facts held suffi- AFFIDAVIT OF CLAIM. An affidavit of AFFIDAVIT OF DEFENCE LAW. Instru- Sufficiency of Affidavit. Every material and While no prescribed form is required, the averment Where a conclusion is stated, the facts upon which Averment of payment on information and belief and An affidavit which refers to a paper whose contents Where a contract requires that work be approved What averments are necessary to prevent judgment In an action brought since the Practice Act of 1887, AGENT. Pledge of principal's securities by. See Principal not held liable for misapplication of rents ALLEY. Where premises apparently entitled to This is not altered by the fact that the purchaser AMENDMENT. An indictment charging lar- Where a verdict, good against a husband alone, has A venue may be added to a statement by amend- A libel alleging desertion cannot be amended after MENT. ANNUITY. See DEED. Coxe's Appeal, 362. Appeal from order opening judgment not to be taken APPLICATION OF PAYMENTS. See PAY- ARBITRATION. A submission to arbitration The action of the Common Pleas in setting aside or In arbitration proceedings under the Act of 1836 ASSIGNEE FOR BENEFIT OF CREDI- |