hours after their delivery to the drawee, the latter must be deemed to have accepted the checks, and is therefore liable to the plaintiff for the amount of them.

The judgment non obstante veredicto in favor of the defendant is reversed, and judgment is now directed to be entered by the court below on the verdict in favor of the plaintiff and against the defendant.

(219 Pa. 428)

PETTIT et al. v. CLEVER. (Supreme Court of Pennsylvania. Jan. 6, 1908.) APPEAL - WHEN LIES - JUDGMENT OF PвоTHONOTARY.

No appeal lies from a judgment by the prothonotary, entered as a matter of course, but relief must be asked from the court in which it is entered, and from an order denying the same, the appeal may be taken.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 414, 885-891.]

Appeal from Court of Common Pleas, Allegheny County.

Scire facias sur mortgage by Clarence Pettit and others against Robert F. Clever. From entry of judgment on two notices, and from judgment for plaintiff on bond accompanying mortgage, defendant appeals. Appeals quashed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Robert F. Clever, for appellant. John W. Chalfant, Jr., John C. Slack, and Charles Hoopes, for appellee.

BROWN, J. A sci. fa. sur mortgage, in which this appellant was mortgagor, was issued out of the court of common pleas No. 2 of Allegheny county, and on December 14, 1906, upon two nihil returns, judgment was entered against him in default of an appearance. Without asking the court below for relief from this judgment, he appealed directly to this court on December 20, 1906, and has filed what he terms "specifications of error." They are nine in number, and each one is but an allegation that the judgment is "irregular and erroneous," for reasons stated. On January 18, 1907, judgment was entered against the appellant in the court of common pleas No. 3 of the same county, on his judginent bond accompanying the mortgage. He pursued the same course as to this judgment, and, on his appeal from it, alleges in what he again terms "specifications of error" that it is "irregular and erroneous," and that the entry of it was "an attempt to circumvent and render useless" his former appeal.

Appeals are taken that errors alleged to have been committed by a court below may be properly assigned and corrected, if found to have been committed; but when the court below has done nothing, there is nothing to

Nothing was done by either court, and nothing is assigned as error by either. Each of the judgments was entered by the prothonotary, as a matter of course, with no order or intervention by the court. If either was improperly entered, and is, as alleged, irregular and erroneous, relief from it ought to have been asked from the court in which it was entered; and, from the action of that court, if the relief asked for had been denied, an appeal would have lain. By these appeals we are asked to assume original jurisdiction. Counsel for appellee have not asked us to quash them, but we must do so of our own motion. "We certainly will countenance no procedure which passes the bar of the legitimate tribunal, and, in the garb of a writ of error, would give us original jurisdiction." Wilson v. Colwell, 3 Watts, 212. Appeals quashed.

(219 Pa. 422)

In re FLEMING'S ESTATE. (Supreme Court of Pennsylvania. Jan. 6, 1908.)

TRUSTS-SPENDTHRIFT TRUSTS - RIGHTS OF CREDITORS.

Testator devised his real estate to trustees to pay the income therefrom to his children for a period of 15 years, the real estate not being liable for the debts of any of the children, and none of them to have the right to sell, pledge, or anticipate the income, or to sell or incumber their interest in the realty. The will also provided that the death of any child should not affect the trust, the share of one so dying to descend to his or her heirs at law or devisees, subject to the conditions of the will. Held, that devisees of a child dying within 15 years are entitled to the enjoyment of the child's share. in the trust fund free from any claims of the creditors of the deceased child.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, § 196.]

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of George S.

Fleming, deceased. From a decree dismissing exceptions to adjudication, Joseph Fleming & Son Co. and others appeal. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Joseph Stadtfield, for appellants. J. S. Ferguson and W. J. Brennen, for appellees.

BROWN, J. Joseph Fleming died May 15, 1890. The fourth clause of his will is as follows: "All of the real estate which at the time of my death I may own that is situated in the city of Pittsburg, Pa., I give, bequeath and devise to my said hereinafter named executors, or the survivor of them, in trust for the following uses and purposes and not otherwise: For the period of fifteen years after my decease my said executors, or the survivors of them shall take charge of said real estate, keep the buildings and improvements thereon insured, and in good

repair, rebuild the same in case of fire, keep the same rented and collect the rents thereof and after deducting taxes, cost of insurance, repairs, &c., the net income derived therefrom shall be divided and paid over quarterly to and among my six children George S. Fleming, Sallie, wife of G. A. Hays, Emma, wife of Robert F. Shannon, Bessie, wife of John Warden, and Annie and Mattie Fleming. During the said term of fifteen years said real estate shall not be liable or subject to any execution or other legal process for any debt, liability or engagement of any of my children. None of my children shall during said term have the right to sell, pledge or in any other way anticipate their respective shares in the rents or income of said real estate nor shall they have the power to sell, mortgage or otherwise encumber their prospective interests therein. At the expiration of said term of fifteen years after my decease, the said trustees or the survivor of them shall cause said real estate to be fairly valued and appraised and shall divide the same equally among my six children above named, or if any of my said children shall have died before the time for such division, to the children then living and the heirs at law or devisees of the child or children who shall have died, the said trustees shall execute and deliver any necessary and proper conveyances or papers for these shares or interests to those respectively entitled thereto. The death of any of my children shall not in any wise affect the provisions of this trust but the share or shares of the one, or of these, so dying shall descend to his, her or their heirs at law or devisees subject to all the conditions herein named." George S. Fleming died August 13, 1904, within the 15-year trust period created by his father's will. By his will, executed September 26, 1903, George directed that his debts be paid, and, after making a bequest of $25,000 to W. J. Brennen, gave and devised the residue of his estate to his wife. The fund distributed to Brennen and George's widow is the proceeds of the sale in proceedings in partition of the land devised by Joseph Fleming in the above-quoted clause of his will. George's estate was insufficient to pay his debts, and his creditors claimed to be paid the balance due them out of the fund raised from the sale of Joseph Fleming's real estate in the partition proceedings. They make this claim upon these grounds: (1) George S. Fleming had a vested interest in his father's real estate; or, if not (2) his direction to pay his debts was an exercise of his power of appointment in favor of his creditors, which was operative to charge the fund. The court below excluded the creditors from it, and awarded it to the legatee and widow.

If the will of Joseph Fleming has directed to whom and under what conditions the fund before us shall go, it cannot go elsewhere, 68 Α.-61

and the conditions of the devise of the interest to George in the land which the fund now represents must prevail. At no time during the 15 years succeeding his father's death could the interest of George in the estate have been made liable for any of his debts. He could not, during that period, have even pledged his income from it to a creditor, because his father had so directed; but the direction of the testator went still further and prohibited him from selling, mortgaging, or otherwise incumbering his "prospective" interest in the real estate. The testator himself designates this interest as prospective, and, as was properly held by the learned president judge below, "it was made a condition of conveyance to the children that they survive the trust." If any one of them should die during the continuance of it, his or her interest was to pass to substitutionary persons named by the testator, "the heirs at law or devisees of the child or children who shall have died." Upon the death of a child during the 15 years, his or her interest in the father's estate ceased and descended to "his or her heirs at law or devisees, subject to all the conditions herein named." The only power which a child could exercise over his prospective interest was to devise it. Without a devise of it, it descended to the heirs of the child dying during the period. But whether descending to heirs or passing to devisees, the testator, who had the right to do so in disposing of his own property, imposed the condition of absolute immunity from any debt of a deceased child. His words are that the devisees of a deceased child shall take his or her interest in the land, "subject to all the conditions" named in the will, and the condition is: "None of my children shall during said term have the right to sell, pledge or in any other way anticipate their respective shares in the rents or income of said real estate nor shall they have the power to sell, mortgage or otherwise encumber their prospective interests therein." Upon the death of George his interest in his father's real estate passed to his devisees, who at once became substituted by his father's will for him in the enjoyment of the income for the remaining portion of the 15 years, and, at their expiration, were entitled to a conveyance from the trustee of his interest in the land itself. When he devised his interest to them, and the devise became effective during the 15 years, it was as free from any liability for his debts as it had been before he died. As there was nothing for his creditors in his father's estate while he lived, there was nothing for them after his death; for when he died his interest ended and passed to others under a power of appointment which exempted it from his liabilities.

Appeal dismissed, and decree affirmed.

(219 Pa. 419)

MUNSON v. CROOKSTON. (Supreme Court of Pennsylvania. Jan. 6, 1908.)

1. EVIDENCE-DECLARATIONS AGAINST INTEREST.

Declarations of a wife, in the absence of her husband, against her interest, are admissible in evidence in ejectment, where defendant husband claims possession as tenant by the curtesy of his deceased wife.

2. APPEAL-ASSIGNMENTS OF ERROR.

Assignments of error to the admission of evidence not setting forth the evidence, will not be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3012.]

3. WITNESS COMPETENCY TRANSACTIONS WITH DECEDENT.

Defendant in ejectment claimed possession as tenant by the curtesy of his deceased wife, and plaintiff claimed as devisee under the deceased wife's will. Held, that the husband was not a competent witness under Act May 23, 1887 (P. L. 159, § 5), providing that no person whose interest shall be adverse to the right of a deceased party shall be a competent witness as to any matter occurring before the death of such party.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 598-618.]

Appeal from Court of Common Pleas, Allegheny County.

Action by Sidney A. Munson and others against William Crookston. Judgment for defendant, and plaintiffs appeal. Affirmed.

Ejectment for land in borough of Pitcairn. At the trial it appeared that the plaintiffs claimed under the will of Agnes Crookston, deceased, while the defendant, the husband of the deceased, claimed possession as tenant by the curtesy, having elected to take against his wife's will. The plaintiffs alleged that the defendant had deserted his wife, and that consequently the defendant was not entitled to his curtesy. The court, under objection and exception, excluded evidence offered by the plaintiffs of declarations made by Mrs. Crookston in the absence of her husband. The court admitted, under objection and exception, the testimony of Wm. Crookston as to matters occurring in the lifetime of his wife.

The court charged, in part, as follows: "Now, as to the time they lived together, up to September 21, 1901 (1896), or at least until the fall of that year, I think I shall have to say to you, there is no evidence which would justify you in finding that he neglect. ed or refused to provide for her. We have here evidence that she paid bills, and perhaps she paid the larger part of them. We have some evidence that he paid bills, but where a man is living in his wife's house, and his wife has property or money and she chooses to pay the bills, and he does not pay any bills, that is not a neglect or refusal to provide for his wife, because his wife has as much right to give him the rent of a house, or to give him the groceries or things he eats, as she has to give him anything else, and the presumption would be that if she

did that she was giving them to him, and therefore there is no neglect or refusal on his part to provide. The question would therefore be as to what took place after that time, and I imagine there is very little difference between the questions as to whether he neglected to provide for her and whether he deserted her, because, if he deserted her, of course he didn't provide for her, and if what he did was not a desertion, and she claimed the right and undertook to stay where she pleased, without going with him, then he would not be bound to provide for her. So substantially the question is all one, whether or not he deserted her after this date in September. Now, if William Crookston, after he went away from his wife's house on this occasion, had a place for his wife to come to, whether his children were with him or not, and she knew that, and he asked her to come there and she did not come to live with him, but persisted in living in her own house or going elsewhere, then he did not desert her, but, on the contrary, she would in that way have deserted him."

Verdict and judgment for defendant. Plaintiffs appealed.

Argued before MITCHELL, C. J. and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

John P. Hunter and George N. Chalfant, for appellants. C. C. Dickey and W. K. Shiras, for appellee.

PER CURIAM. The offers to show declarations of the wife in the absence of the husband fall clearly into two classes-those in her own favor and those against her interest. Under the settled rules of evidence the latter were admissible, but the former were not. The learned judge below followed the rule.

Several of the assignments of error are rendered ineffective by failure to regard the rules of court. Objections were made to testimony offered. The objections were overruled, and appellant excepted. But the testimony so objected to is not quoted in the assignment as required by rule 31, and there is therefore nothing on the record to show that, even if improperly admitted, it did the appellant any injury. William Crookston, the surviving husband, was not a competent witness, and should not have been admitted to testify to matters occurring in the wife's lifetime. Under clause "e" of section 5 of the evidence act of May 23, 1887 (P. L. 159), no person whose interest shall be adverse to the right of a deceased party shall be a competent witness to any matter occurring before the death of such party. The exception in the same section, "unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses," does not apply. The husband here claimed by devolution of lawthat is, as tenant by the curtesy-an estate by descent (Cooke v. Doron, 215 Pa. 393, 64 Atl. 595, 7 L. R. A. [N. S.] 659), while the plaintiff claimed under the wife's willthat is, by purchase. He therefore stood in her place, and the husband's claim was adverse to her title which the plaintiff represented. Had the plaintiff claimed as heir or next of kin, he would have claimed by devolution as the husband did, and both would have been competent witnesses under the exception quoted. But, as the case stands, their claims are of different classes, and they are not within the exception of the statute. Rine v. Hall, 187 Pa. 264, 276, 40 Atl. 1088; King v. Humphreys, 138 Pa. 310, 22 Atl. 19; Crothers v. Crothers, 149 Pa. 201, 24 Atl. 190; Baldwin v. Stier, 191 Pa. 432, 43 Atl. 326; Myers v. Litts, 195 Pa. 595, 46 Atl. 131; Shroyer v. Smith, 204 Pa. 310, 54 Atl. 24.

But the admission of the husband as a witness, though an error, did the appellant no injury, for he had already failed to establish his cause of action. All the testimony given, even if the offers which were rejected should be included, show nothing more than quarrels, dissatisfaction with the presence of the husband's children by a former marriage, payment by the wife of many if not most of the bills, and other causes of dissension, but all of these together fall far short of showing desertion. The plain result of the whole was to show that the wife, being dissatisfied with the domestic situation, preferred to live apart, and therefore left the husband. The judge in a careful and elaborate charge submitted the question to the jury. He might well have directed a verdict for defendant. Judgment affirmed.

(219 Pa. 405)

BOWEN v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 6, 1908.)

1. MASTER AND SERVANT - INJURY TO EмPLOYÉ-ASSUMPTION OF RISK.

An employé assumes such risks as are ordinarily incidental to the employment, and has notice of such risks as are or ought to be obvious to a person of his experience.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 550, 574-600.] 2. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. An injured party cannot recover if guilty of contributory negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 84.]

3. MASTER AND SERVANT - INJURY TO EмPLOYÉ-DIRECTING VERDICT.

In an action by a brakeman against his employer for damages for personal injuries, it was proper to direct a verdict for defendant where plaintiff was injured in alighting from a car by striking a telegraph pole close to a switch, where he knew the location of the pole,

and warned the engineer that he would be hit by the pole if he did not take his head in from the engine window.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]

Appeal from Court of Common Pleas, Venango County.

Action by Charles E. Bowen against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The trial court gave binding instructions for the defendant. In his charge he stated the circumstances of the accident to be as follows: "It appears from the testimony of the plaintiff that there was a pole erected near one of the switches of the defendant company. When that pole was placed there does not appear. The plaintiff, however, knew of it on and prior to December 30, 1904. He says so, and he says that on that date he called the attention of the supervisors to it that that pole was too near the tracks. He says the supervisor promised to have the matter remedied. He further says that he was not in the neighborhood of the pole again until January 20th following; he did not know whether it had been removed or not. This was his testimony in chief, and that on the 20th he was injured. On the part of the defendant Mr. Thompson, the engineer in charge of the shifting engine in the yard, was called, and he testified that on the same evening the plaintiff was injured, and about five minutes before he was injured, and possibly not to exceed two minutes before the accident happened, that the plaintiff, as he was moving the engine along, called to him to take his head in, that he would be hit by that pole. Mr. Thompson says the plaintiff was then about 25 feet from the pole. Another witness, Mr. McMullin, testifies that the plaintiff said he had been notifying everybody about the pole. This was some little time before the accident. He is unable to fix the exact time of it, but it was some time before the accident. In rebuttal the plaintiff comes on the stand, and admits that he was on the side of the train upon which the pole was located, and he says he was about two car lengths from the pole, and that, when in that position, he did call to the engineer to take his head in, endeavoring to warn him against the proximity of the pole and the danger of being hurt. Now, it appears that notwithstanding these facts and his knowledge that the pole was there, which cannot be questioned in view of this evidence, that he went on the car after it was disconnected from the engine, took his position on the front platform of the car as it was going, applied the brakes, and while the way was open for him to go down on the other side of the car, and while the car was still moving, but almost stopped-in fact he says it went only about two feet after he got off-he got off on the side of the car next the pole, right at the point Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

Henry P. Nevins and John M. McGill, for appellant. John L. Nesbit, Orr Buffington, and P. M. Speer, for appellee.

ELKIN, J. In the consideration of this case, some confusion has arisen in properly defining and understanding the doctrines of assumption of risk and of contributory negligence. It should always be borne in mind that defenses growing out of these doctrines are separate and distinct, resting upon entirely different grounds, and not dependent upon each other. In Priestley v. Fowler, 3 Mees. & W. 1, decided in 1837, and a leading case on this question, it was laid down as a principle that a servant assumes all the ordinary risks which are incidental to his employment. Since that time this doctrine has been universally applied by the courts in which the common law is the prevailing system of jurisprudence. While the text-writers and the courts have not always given the same reason for the foundation of the rule, the weight of authority bases it upon the contractual relation existing between the parties. It seems but reasonable to hold that, when one person enters the employ of another, there is an implied contract that he assumes such risks as are ordinarily incidental to that employment, and to have notice of all such risks as are, or ought to be, open and obvious to a person of his experience. In theory, at least, the employé is presumed to have waived any right of action he might otherwise have for injuries received, if such injuries result from the risks and dangers of the employment in which he is engaged. He assumes this risk in advance at the very inception of his contract of employment, and it continues so long as that relation exists. In this state the law is settled that an employé, in accepting the employment, assumes all risks ordinarily incidental thereto, and all other risks, open and obvious, the dangerous character of which he has had an opportunity to observe. Dooner v. Canal Co., 171 Pa. 581, 33 Atl. 415; Boyd v. Harris, 176 Pa. 484, 35 Atl. 222; Nuss v. Rafsnyder, 178 Pa. 397, 35 Atl. 958; Fulford v. Lehigh Valley Railroad Co., 185 Pa. 329, 39 Atl. 1115.

The application of this rule would be the end of appellant's case except for the allegation that he had reported the dangerous location of the pole to the supervisor, who had promised to remove it. Assuming this to be a fact, it is argued that where a master makes a promise to repair he, and not the servant, assumes the risk between the tim. of the promise and the time for its fulfill ment, and for a reasonable length of time thereafter. Patterson v. Railroad Co., 76

son-Walker Co., 213 Pa. 145, 62 Atl. 640, and Foster v. Steel Co., 216 Pa. 279, 65 Atl. 618, are relied upon to support this contention. On the other hand, it is denied by the supervisor that such a conversation took place, or such promise was ever made. It is urged that the promise, even if proven, was not made by any one having authority to represent the defendant company, and would not be sufficient in law to bind it. If the case turned upon the question of the assumption of risk, in our opinion it would be for the jury to determine, under proper instructions by the court, whether appellant had given notice of the dangerous location of the pole to an employé or officer of the company, whose promise to remove could bind it, and whether he had continued in his employment relying upon the promise to remove the danger complained of.

The case is not controlled by the question of assumption of risk, but the right to recover depends upon whether appellant was guilty of contributory negligence. As has been hereinbefore stated, this is an entirely separate and distinct defense, in no way connected with or dependent upon the question of the assumption of risk. An injured party cannot recover if guilty of contributory negligence because by his own act he has intervened between the negligence of the de fendant and the injury received in such a manner as to break the causal connection. This is the theory upon which most of the authorities base the doctrine. In its application to the facts of a particular case it means that the complaining party cannot recover damages on account of injuries received, no matter if the evidence produced at the trial clearly shows the defendant to be guilty of negligence, if it also appears that the negligence of the injured party contributed to the injuries for which he asks to be compensated. In other words, the law will not permit him to recover from some other party on the ground of negligence if his own act of negligence contributed to the injuries for which he seeks damages. It must then be determined whether the appellant here was guilty of contributory negligence. What are the facts? Appellant was a brakeman or switchman in the yards of the defendant company at Oil City, and must be presumed to have known the exact location of the switches, lines, poles, and other appliances in that yard. He did know the exact conditions, as is shown by his own testimony. He saw a certain pole located so close to one of the tracks as in his judgment to make it dangerous. He notified the engineer and other employés of this alleged danger. On the evening when the accident occurred, just as the engine approached the pole he notified the engineer to look out for the pole. This is proof positive that he knew it was still there. At that time he was in a safe position and by the exercise of