chased with her husband's money the other four-fifths interest, and also a ground rent, the title being taken in her name. The net rental of this property was probably four hundred dollars per year. The claimant was not employed for some years prior to his wife's death, and no doubt a portion of the rents were applied to the support of the family. The deposits in the Bank of Pittsburgh were all made subsequently to 1875, and probably some of the rents were included in them. The balance in this bank, however, was only $349,-not sufficient to pay the expenses charged in the account for the administration of her estate; and as the fund for distribution is not sufficient to pay the amount found to be due the claimant, irrespective of his claims for these deposits, it is not necessary to pass upon the questions raised as to them."

George P. Hamilton, for appellant. Frank C. Osburn, for appellee.

PER CURIAM. We find no error in this record. The facts, together with the questions of law arising thereon, are clearly stated in the opinion of the learned judge of the orphans' court, and we affirm the decree on his opinion. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

(158 Pa. St. 469)

In re OPENING OF FOURTH ST, IN BOROUGH OF OAKMONT.

Appeal of ANDERSON et al. (Supreme Court of Pennsylvania. Nov. 13, 1893.) Appeal from court of quarter session, Allegheny county.

Proceedings by the burgess and councilmen of the borough of Oakmont to open Fourth street in said borough, and for the appointment of viewers to assess and award damages therefor. The report of the viewers having been confirmed, Margaret J. Anderson, E. B. McAbee, and Salinda Anderson petitioned for a rule to show cause why the proceedings should not be set aside. The rule was discharged, and the petitioners appeal, assigning as error (1) the discharging of the rule to show cause; and (2) the refusal to set aside and quash the proceedings. Affirmed.

The petition for the rule was as follows: "The petition of Margaret J. Anderson, E. B. McAbee, and Salinda Anderson, of the county of Allegheny aforesaid, respectfully represents that your petitioners are owners of property abutting on Fourth street, between E and G streets, in the borough of Oakmont; that said Fourth street, between E and G streets, was laid out in 1872, and dedicated to the public, by Peter Bright, recorded November 13, 1872, in the recorder's office of Allegheny county, in Plan Book, vol. 5, p. 6, and that said Fourth street, between E and G streets, was accepted and

used by the public from, to wit, 1881, until the present time, is still so used by the public, and has never been vacated, by order of the court or otherwise; that on May 11, 1892, at No. 73, March term, 1892, of this honorable court, a petition of the borough of Oakmont, praying for the appointment of seven viewers, under the borough act of 1856, to locate said Fourth street, between E and G streets, according to the original plan of the borough of Verona, and to assess the damages and benefits, was presented, and said viewers filed their report at above number and term on June 11, 1892, and, no exceptions having been filed thereto, said report was confirmed October 29, 1892. Your petitioners aver that Godfrey Brenner and O. M. Bossert, of the viewers appointed by the court, were not freeholders at the time of the appraisement, and their respective wives owned property on Fourth street, near the line of improvement, and that W. A. Diamond, another viewer, owned property, at the time of the appraisement, on Fourth street, on the line of improvement; that damages assessed in favor of Salinda Anderson, namely, two hundred dollars, ($200,) are grossly inadequate and unjust; that said Margaret J. Anderson and E. B. McAbee, two of your petitioners, had no notice of the proceedings of viewers, written or otherwise, and did not learn of the same until April, 1893; that said Fourth street, as laid out and reported by said viewers in accordance with original plan of Verona, includes twenty-five feet of Fourth street, as dedicated by said Peter Bright's heirs, and used by the public; that no damages have been paid under said report of viewers, nor has any attempt been yet made to open the street; that said Fourth street, as dedicated and used by the public, and as now used, has never been vacated, nor has there ever been a petition filed to have the same vacated; that the viewers have filed no draught or plan of the street proposed to be opened; that the records show that the ordinance was only published in one newspaper, and notice of the same should have been published in two; that the borough of Oakmont has no general plan or map; that Fourth street is not a street, by any plan of Oakmont borough, and was never adopted as a street by the borough of Oakmont; that the act of assembly of 1873, being a special act for the borough of Verona, will not apply to the borough of Oakmont. Wherefore, your petitioners claim the proceedings at No. 73, March term, 1892, to be illegal, and pray the court to grant a rule to show cause why the same should not be vacated, set aside, and quashed."

The answer to the rule was as follows: "The answer of the borough of Oakmont to the rule to show cause, granted upon the petition of Margaret J. Anderson, E. B. McAbee, and Salinda Anderson, respectfully shows that it is true that there was a street

called Fourth street located in a plan among the heirs of Peter Bright, deceased, which plan is recorded in the recorder's office of Allegheny county, in Plan Book, vol. 5, p. 6, and that in said plan Fourth street is located from the property of Nancy Weddell, north of E street, to property of Isaac Morley, south of E street; that Nancy Weddell, on the north, laid out a plan of lots, in which Fourth street was dedicated to the public as and for a public highway, and the same conformed to the general plan of streets of the borough of Verona, hereinafter referred to; that Isaac Morley, on the south, also laid out a plan of lots, in which Fourth street conformed to Fourth street in the said general borough plan; that H. S. Paul acquired title to the property located between E street and the said Morley line, which he laid out in a plan of lots, and in which Fourth street conformed to the Fourth street in said general borough plan; that houses have been erected in said Weddell, Paul, and Morley plans, in which all conform to the line of Fourth street as laid out in said general plan. And it further denies that all houses have been built to conform with said Fourth street in said Bright plan, and avers that a house built by said Salinda Anderson is partially built on the line of Fourth street in said Bright plan, as well as the other houses built along the line of said Anderson property; that the said borough of Oakmont, nor the said borough of Verona, from which it was formed by a decree of this honorable court, ever accepted the said Fourth street in the said plan so recorded as aforesaid, and in a proceeding in equity at No. 123, October term, 1884, wherein said Salinda Anderson was plaintiff, and the said borough of Verona was defendant, it was found and adjudicated that the said Fourth street, in said plan of the Bright heirs, had not been accepted by the municipal authorities thereof, and had not been used as and for a public highway; that Margaret J. Anderson and E. B. McAbee were not, as this petitioner believes, owners of property at the time of the said equity proceeding on the line of said Fourth street, but that the same was owned, as this respondent believes, entirely by said Salinda Anderson. Respondent denies that any portion of the property of the said Margaret J. Anderson or E. B. McAbee was taken by the opening of the said Fourth street, and further denies that said McAbee is now the owner of property on said street. Respondent denies that the damages assessed in favor of the said Salinda Anderson are grossly inadequate and unjust, and avers that the said Salinda Anderson had personal notice of the said proceeding, and that due and public notice was given of the said proceeding by handbills conspicuously posted on the premises, and that neither the said Margaret J. Anderson or the said E. B. McAbee are residents of said borough. Your respondent further avers that the general

assembly of the commonwealth of Pennsylvania, on the 10th day of May, 1873, enacted an act locating a general plan of streets in the borough of Verona, which said plan was the plan approved by the council of the said borough of Verona on the 11th day of September, 1872, and that said Fourth street was one of the streets included in the said plan, and extended from College avenue to H. street, a distance of several thousand feet, and that the said general plan of streets covered all the territory which is now included within the limits of the borough of Oakmont, and said act authorized the opening of said streets so included in said plan, and many streets therein have been opened, and are now used as public highways; that the said borough of Oakmont was created by decree of this court out of a portion of the borough of Verona at No. 60, September sessions, 1886, on December 4, 1889, and that the said streets in the said plan is, as this respondent avers and believes, the streets and highways in the said borough of Oakmont, and that the said streets so located in said plan were not changed, as to the territory included within the borough of Oakmont, by the said decree of this court incorporating the borough of Oakmont. Your respondent, therefore, showing that more than one term has elapsed since the confirmation nisi of the said report of viewers, and that the same has been confirmed absolutely, and further showing that it is ready and willing to pay the damages so assessed to the said Salinda Anderson, whenever she is willing to receive the same, prays to be hence dismissed, with its reasonable costs."

J. W. Kinnear, for appellants. J. P. Hunter, for appellee.

PER CURIAM. We find nothing in this record that calls for a reversal of the decree of the court below. Neither of the specifications is sustained. Decree affirmed, and appeal dismissed, with costs to be paid by appellants.

(158 Pa. St. 539)

HAZLETT et al. v. McCUTCHEON et al. (Supreme Court of Pennsylvania. Nov. 14, 1893.)

GROWING CROP-SALE FOR TAXES-TITLE OF PURCHASER.

Where a landlord, at a sale under a distress warrant against his tenant for arrears of rent, purchases a growing crop of wheat, and takes possession of the leased premises, a subsequent purchaser of the same crop, at a sale for delinquent taxes against the prior owners of the land, may enter on the land, and harvest and remove the wheat when it matures, and retain it as against such landlord, though the lease required the tenant to pay such taxes.

Appeal from court of common pleas, Allegheny county.

Action of replevin by James E. Hazlett, John K. Hazlett, and Joseph L. Bosh against

put in where the old ones had been, with

(158 Pa. St. 497)

DE WALD et al. v. WOOG. (Supreme Court of Pennsylvania. Nov. 13, 1893.)

MECHANICS' LIENS-LEASEHOLD INTEREST-REPAIRS OR NEW BUILDING.

Where the interior of a building was torn out by the tenant, and materially changed, and the front altered to some extent, but the tenant continued to occupy the building throughout the work, it constituted repairs of an old building, and not a new structure, entitling the contractor therefor to a lien.

Appeal from court of common pleas, Allegheny county.

Action by De Wald, Wuesthoff & Co. against F. X. Woog. Plaintiffs obtained judgment, and, under execution thereon, sold defendant's leasehold interest in certain real

to the window from twelve to two. In the rear wall the first and second stories were taken down, and iron columns were put in to support the brick wall above, and the building was extended back ten feet for two stories high. A skylight was built in the roof, and a light shaft brought down to light the second, third, and fourth floors. During the remodeling of the building, and prior thereto, Woog occupied the premises with a restaurant and bar.

J. S. & E. G. Ferguson, for appellants. John Marron, for appellee.

WILLIAMS, J. The right of the appellants to share in the fund for distribution depended upon a single question. They were contractors and builders. Under a contract with Woog, who held a lease for 10 years of two adjoining buildings used by him as a restaurant and tobacco store, they had made extensive improvements and repairs upon the

Affirmed.

The following facts were found by the auditor:

In 1890 the premises at Nos. 504 and 506 Smithfield street, Pittsburgh, Pa., now known as the "Hotel Eiffel," were two four-story buildings, each having a front on Smithfield street of about 20 feet, and extending back about 50 feet. They were divided on the first story by a 13-inch brick wall, and above that by a hallway and lath and plaster partition. The wall nearest Sixth avenue and the wall nearest Fifth avenue were party walls. The front wall was iron and glass for the first story, with iron columns support ing the brick wall above. The rear wall was brick. The first floor was occupied as two storerooms, with a door opening from the street into each, and show windows on each side. Between the two buildings a stairway led from the ground to the top story, and a door opened from the street at the foot of these stairs. The upper floors were divided into rooms of different sizes by lath and plaster partitions on either side of the stairway and halls. Under their contract, Murphy & Hamilton took out all the interior of the building, put in new material, and arranged the interior on an entirely different plan from that of the old building, and threw the two buildings into one. They took out all the old material in the front wall of the first story, except four iron columns, which supported the brick wall above. They put in new windows and doors, and changed the arrangement of the first-story front, and two new iron columns were put in on new foundations. Above the first story the front wall was not changed. New windows were

at sheriff's sale by the plaintiffs, De Wald, Wuesthoff & Co., and the appellants claimed payment for their work and materials out of the fund, as mechanics and material men, entitled to a lien upon the premises. Their right to share in the fund was denied on the ground that their work was done and materials furnished for the repair of a building or buildings which were in the actual occupancy of Woog during the whole time their work was being done. This raised a question, on which the parties were heard by the auditor and the court below. Upon this question the finding was adverse to the claimants. We are not persuaded by the evidence that this finding was plain error, and upon it the judgment or decree appealed from must be affirmed.

(158 Pa. St. 412)

MOESER v. SCHNEIDER. (Supreme Court of Pennsylvania. Nov. 13, 1893.)

EQUITABLE ASSIGNMENT-Orders-AccEPTANCENECESSITY FOR WRITING.

1. Where a person in writing acknowledges himself indebted to another, and binds himself to pay the debt with the money from an inheritance to be collected by an attorney, and deposits the instrument with the attorney, with orders to pay the debt from the money when collected, this, though not a legal assignment, is an equitable one.

2. Under Act May 10, 1881, (P. L. 17,) providing that no person shall be charged as an acceptor of a bill of exchange, draft, or order, exceeding $20, unless his acceptance is in writing, the objection to a parol acceptance can only come from the acceptor.

Appeal from court of common pleas, Allegheny county.

Action by Albert H. Moeser, administrator of the estate of Edward Knuchel, deceased, against Arnold Schneider. From a judgment

for want of a sufficient affidavit of defense, defendant appeals. Reversed.

Thomas B. Alcorn and John F. Miller, for appellant. A. H. Moeser and G. H. Stengel, for appellee.

THOMPSON, J. The affidavit of defense, for the insufficiency of which the court below entered judgment against appellant, sets forth that he was employed by Edward Knuchel to collect an inheritance for him; that Knuchel was indebted to Frederick Jampen; that in order to pay this indebtedness, and secure him for money which he was about to advance, he directed appellant to prepare an assignment of this inheritance to Jampen, and that he did so, a copy of which is annexed to the affidavit. By this instrument Knuchel and his wife acknowledged themselves indebted for board and lodging and money loaned, and they bind themselves to pay the same with the money from the inheritance. The affidavit then' avers that on the faith of this assignment the said Jampen loaned Knuchel the further sum of $230, making a total indebtedness of $456.50; that Knuchel signed and deposited this instrument with appellant, and ordered him to pay Jampen; that he accepted said assignment as an order to pay, and promised Jampen to pay the fund to him when received; that the amount of the inheritance so received was less than $456. While the instrument was intended as an assignment of the inheritance. it does not operate as such; yet, taking it in connection with the balance of the affidavit, an equitable assignment of the fund is sufficiently averred. The fund which was coming to Knuchel was to be assigned to Jampen as a payment for his indebtedness. For this purpose Knuchel having executed the acknowledgment, and, having ordered appellant to pay to Jampen, appellant promised Jampen to do so. Knuchel was entitled to the fund as an inheritance, and appellant was employed to collect it for him. The acts averred in the affidavit show an appropriation of it to the payment of the indebtedness due Jampen, and a direction to pay him. They amount to an equitable assignment of it. In Nesmith v. Drum, 8 Watts & S. 10, it is said: "An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on a valuable or even good consideration. Could there be a more explicit declaration than the order before us? Drum and Collins draw on their lawyer for the proceeds of an action against Hawkins, which they declare in the order to have been appropriated to payment of their note in the Warren Bank, on which Wheelen, the payee, was one of their sureties. If this appropriation was a condition of the contract of suretyship, it rested on a valuable consideration; if it was not, it rested on v.27A.no.17-69

a good one, which is equally available." In Ruple v. Bindley, 91 Pa. St. 296, it is said: "The form is immaterial, so that there be a clearly-expressed intention of an immediate transfer of the right to the assignee. Where one was indebted to a number of persons, and remitted a sum of money to B., with orders to give specific parts to certain creditors, it was held that B. became trustee for those creditors, and they thereupon acquired such an interest in the trust fund as could not be divested by an attachment against the debtor, though some of the creditors had no notice of the trust before the service of the attachment. Sharpless v. Welsh, 4 Dall. 279. An order to the drawer's attorney to pay to W. the amount of a note on H. when collected is an assignment of the fund, by the agreement of the parties, and cannot be revoked, even if the draft was not accepted by the drawee." Clearly, Knuchel could not successfully deny the assignment. If so, his administrator, standing in his shoes, cannot do so.

It is contended by appellee that this case comes within the grasp of the act of assembly of May 10, 1881, (P. L. 17,) which provides that no person shall be charged as an acceptor on a bill of exchange, draft, or order, drawn for the payment of money, exceeding $20, unless his acceptance shall be in writing, signed by himself or his lawful agent. But such is not the case. The objection, as decided by this court, can only come from the acceptor. In Ulrich v. Hower, 156 Pa. St. 419, 27 Atl. Rep. 243, in which the plaintiff, by a verbal agreement, assigned and appropriated a certain amount to a creditor, and the defendant, being informed of this, agreed to pay the balance to such creditor, Mr. Justice Mitchell said: "The exclusion of the testimony of Ritter as to the assignment to him of plaintiff's claim was error. What was proposed to be proved was not a verbal acceptance of a bill of exchange, draft, or order for the payment of money, which the act of May 10, 1881, (P. L. 17,) requires to be in writing, but an assignment to a creditor by a debtor of a claim for money due the latter by the third person. It is not entirely clear that it is within the statute at all, but, whether it is or not, the objection can only be raised by the acceptor for whose benefit the statute was passed. The language is, 'No person shall be charged as an acceptor.'" Judgment reversed, and procedendo

awarded.

(56 N. J. L. 279) STATE ex rel. O'HARA v. FAGAN, Mayor. (Supreme Court of New Jersey. Dec. 16, 1893.) MANDAMUS TO CITY OFficer.

On July 26, 1893, the common council of Hoboken passed a resolution for the paypreceding quarter, among them, $250 to the ment of the salaries of the city officers for the counsel of the commissioners of adjustment. This resolution was signed by the mayor, he