In case a tenant by the month holds over, it will not be claimed that he is entitled to three months' notice to quit. If the tenancy be by the month, a month's notice to quit is sufficient: Taylor's Land. and Tenant, ? 57. The jury has found the letting was by the month only. The tenant then had a right to leave when he did, and was not legally chargeable for use and occupation thereafter. Judgment affirmed. For plaintiff in error, Wm. Righter Fisher, Esq. Contra, William H. Browne, Esq. PATTERSON v. SHRADER. One who is both executor and beneficiary under a will is a competent subscribing witness, and may testify as to the execution of the will upon an issue of devisavit vel non. Error to the Court of Common Pleas of Butler county. Issue devisavit vel non, to try the validity of the last will and testament of Martha Mechling, deceased, wherein Albert L. Shrader, the executor named in said will, was plaintiff, and James M. Patterson, S. M. Patterson and James O. Kiskadden, heirs-at-law of said decedent, were defendants. On the trial the plaintiff called the subscribing witnesses to the will, viz., W. D. Brandon and Albert L. Shrader, the plaintiff executor. Defendants objected to proof of the execution of the will by the latter on the ground that he was a beneficiary under the will and nominated as executor therein. Objection overruled and evidence admitted. Exception. After the introduction of further testimony by both plaintiff and defendants, as to fraud, duress and undue influence, the court instructed the jury to find a verdict for the plaintiff. Verdict and judgment accordingly. Defendants thereupon took this writ, assigning for error, inter alia, the admission of the plaintiff's testimony as subscribing witness. For plaintiff in error, Messrs. L. Z. Mitchell, Charles McCandless and John M. Thompson. Albert Shrader is one of the principal beneficiaries in the will, and was not a competent witness to the will, within the meaning of the Act of 8th April, 1833; at that date he was incompetent because of interest, and the words "competent witnesses" in this act should be construed to mean disinterested witnesses. If he is not competent the will is not proven by two witnesses, as required. in support of a will in an issue devisavit vel non: Bowen v. Goranflo, 23 P. F. Smith, 357. And is competent to prove its execution: Frew v. Clarke, 30 P. F. Smith, 170. But it is argued that even if competent as a witness, he is not competent as a subscribing witness. It must be conceded that if Shrader was not a devisee or executor he would be a competent subscribing witness, and if the decisions cited are followed, the fact that he is a devisee and executor will not render him incompetent as a witness. Why then should the fact that he is named as a subscribing witness render him incompetent to testify as such? The only reason assigned for his incompetency as a subscribing witness is that the law admits certain evidence to be given by subscribing witnesses not allowed in favor of other non-professional witnesses, and he, therefore, being interested should be excluded. This objection, however, goes, not to the competency of the for the jury and not for the court. witness, but to his credibility. It is a question PER CURIAM. Filed December 4, 1882. There is no doubt that Albert Shrader was a competent witness: Bowen v. Goranflo, 23 P. F. Smith, 357; Frew v. Clarke, 30 Id., 170. The other assignments were not insisted on in the argument, nor indeed could they have been under all the evidence. Judgment affirmed. Court of Common Pleas, No. 1. BROWN v. GALLAGHER. The court has no power to set aside an award of arbitra tors selected under the Compulsory Arbitration Act or strike it off so far as it determines the payment of costs, although it is apparent the arbitrators made a mistake. The remedy is by appeal. Opinion by STOWE, P. J. Filed January 20, 1883. This is a motion to strike off an award of arbitrators, so far as it limited the costs to be recovered by defendant, to May 16, 1882. On that day defendant tendered plaintiff a judgment under Rule 68 for $56.50, which was not accepted. On August 16, 1882, plaintiff proceeded under the Compulsory Arbitration Act to choose arbitrators, etc., and after hearing, on September 25th, they made an award in his favor for $60.17, with costs that had accrued previous to May 16th, the time of tender in defendant's affidavit of defense. It is apparent Contra, Messrs. T. C. Campbell and Thomas from a calculation of the interest upon the audit, M. Marshall. tendered from August 16th to September 25th, A devisee and executor is a competent witness that the arbitrators made a mistake in their | To these offers counsel for the defendants object, and at the request of counsel on both sides the master has certified the questions to the court for its decision. We see no difficulty in the first question. The plaintiff is incompetent at common law, and there is no statute that makes him competent, now that the proceeding is against the adminis award of costs, but it is too clear for argument that we have no power to set aside the whole award, nor to strike it off so far as it determines the payment of the costs. The cases of Post v. Sweet, 8 S. & R., 391; Le Barron v. Harriott, 2 Penrose & Watts, 157, and Waage v. Weisser, 5 Wharton, 310, in principle reiterated in Walls v. Wilson, 28 Pa. St., 514, make such a weight of authority that it would amount to a plain dis-trator of a deceased defendant. The plaintiff is regard of the decisions of the Supreme Court did we not follow the rule there laid down. There is no room for distinction between those cases and this. Nor, indeed, do we see any reason for finding fault with them. The law gave plaintiff a perfect remedy by appeal, which he did not see fit to take advantage of, and if he is now compelled to submit to a wrong the fault was his own. The suggestions made by the court during the argument were based upon the idea (how obtained I cannot say) that the parties had waived their right of appeal in the reference. If this had been so I still think we could and should interfere to prevent injustice, but as the case stands it is a mere compulsory arbitration, under the Act of 1836, and the court have no power even if it had the disposition to interfere with the award. For plaintiff, Messrs. Whitesell & Son. Court of Common Pleas, No. 2. GRACEY v. LOCKHART et al. The proviso in the first section of the Act of April 15, 1869, excluding from its application “actions by and against executors, administrators or guardians," applies to the entire act, and is not confined merely to its first section. not a competent witness in his own behalf. Can the complainant call the surviving defendant for special cross-examination under the Act of 1869? Not if the act is to be interpreted as meaning what it says in words, to wit: "And this act shall not apply to actions by or against execu tors, administrators or guardians.” It is true that the second section of the act is in very broad terms, "that a party to the record in any civil proceeding in law or equity may be examined as if under cross-examination at the instance of the adverse party or any of them," etc. Standing alone this would give the right claimed by plaintiff's counsel to call Lockhart for cross-examination. But the proviso above quoted is in the way. True it is contained in the first section, but that is a mere question of order. Had this proviso been contained in a separate section no one would doubt that it applied to all the sections. We are unable to see that its location in the act should be allowed to have the effect of nullifying the plain meaning of the words. The "Act of Assembly" means all its sections and provisions. When in the first section it is said "this act shall not apply," etc., it means that no section or part of the act shall apply to actions in which an executor, administrator or A party to the record cannot call an adverse party and guardian is a party to the record. examine him as if under cross-examination, where the action is against an executor, administrator or guardian. Not only does the language of the proviso expressly relate to the entire act, but the reason of the proviso does also. The reason of the proviso applies with equal force to both sections, and especially is it applicable in such a case as the present. In a bill in equity the defendant's interests are not necessarily identical-each party, plaintiff or defendant, may be hostile. The plaintiff Questions arising on admission of witnesses and one of the defendants may be alike interas certified by master. Opinion by EWING, P. J. Filed March 13, 1883. Gracey, Lockhart & Frew having been partners, Gracey filed a bill for an account against his copartners. Frew having died, and his administrator having been substituted and the case being before the master, plaintiff's counsel offer,-first, to call the plaintiff generally as a witness in his own behalf; and, second, to call the defendant Lockhart for cross-examination under the terms of the Act of 15th April, 1869. ested in throwing the burden on the estate of the deceased partner, to their joint benefit. A skillful cross-examination of a living defendant, on some special points in the case, might result in serious injury to the estate of the deceased, where his representatives would be helpless. We are of the opinion that the complainant cannot call the surviving defendant in this case for special cross-examination under the Act of 15th April, 1869. We are not called on to express any opinion as to the right of plaintiff to call the defendantnership affairs. It follows that the right to under the Act of 1865. contribution is several: Portsmouth v. DonaldFor Gracey, Messrs. Geo. Shiras, Jr., and J. son, 32 Pa. St., 202; Haberton v. Japherson, 10 M. Stoner. Id., 124; and contemplates payment out of the For Lockhart, and Frew's administrator, separate assets of the partners alone. The firm Messrs. Hampton & Dalzell. Orphans' Court. In Re Estate of JANE WADSWORTH, Deceased. In cases in which the rule to marshal assets as between individual and partnership creditors is applicable and is invoked, a surviving partner cannot enforce contribution against the separate estate of a deceased partner for partnership debts which have not been paid prior to such decease. assets having in contemplation of law been exhausted there is but one (the individual) fund out of which the claim can be paid: Sperry's Estate, 1 Ash., 347. There can be no doubt of the liability and authority of a partner to pay firm debts. His act in making payment, being that of the firm, extinguishes the debt paid and at the same time the remedies of the creditor, and leaves to the paying partner only a right to settlement, and in case of deficiency in firm assets, a right to enforce contribution: Bailey v. Brownfield, 20 Pa. St., 41. As against solvent estates of deceased partners there is no restriction on this right to enforce In her lifetime Mrs. Wadsworth was a member of an individual liability banking company, known as the Farmers and Mechanics' Company of Sharpsburg, which at the time of her death was insolvent and had gone into liquida- contribution; but in respect of insolvent estates tion. Some of the partners who survive have the rule seems to be different. In McCormick's paid the debts of the partnership and instituted Appeal, 55 Pa. St., 252, it was held that in cases proceedings in the Court of Common Pleas of in which the rule to marshal assets as between this county for settlement of the partnership partnership and individual creditors is applicaaffairs against the representatives of this dece-ble and is invoked, a surviving partner cannot dent. Pending that proceeding they appeared at the present audit and asked suspension of distribution of so much of the fund here as will cover the probable amount for which the estate will be liable in contribution. Counsel have, by agreement, estimated Mrs. Wadsworth's share of the deficit in partnership assets at $1,750, and a dividend is demanded on this amount. The fund is insufficient to pay all the claims presented. This claim is objected to on behalf of other creditors here. enforce contribution against the separate estate of a deceased partner for partnership debts which have not been paid prior to such decease. The relative rights of such creditors are fixed as of the date of the death; and the right of the surviving partner "to come upon the individual then was, and he cannot set aside the claim of fund, therefore, stands upon the account as it the individual creditors as they then attached by resorting to a prospective equity dependent upon his payment of the partnership debts. * * (1) Because it is said the claim is a partner-We are dealing with insolvent estates, and we ship debt, which is only payable of partnership assets; and (2) Because it is said that it must be assumed in the absence of proof to the contrary, that the debts paid by the surviving partners have been paid since the death of Mrs. Wadsworth, and consequently were not individual debts at the time of her death, and not entitled to payment out of her individual estate. Opinion by HAWKINS, P. J. Filed March 13, 1883. the partners themselves, but the rights of others have not only to preserve the equities between in a fund which was in the lap of the law for distribution when Hays died and left it. This can be done only by settling the equities of the partners, as well as the distribution of the fund, as of that date." It follows logically from this that no right to contribution for partnership debts, paid after the death of a partner, exists in such case. If this rule be applied here, the question The formation of every partnership implies then arises, what partnership debts have been an engagement between the partners that each paid by Mrs. Wadsworth's copartners? It is a partner will pay his proportion of the losses matter of dispute whether any debts were paid which may result. Each partner contracts for before Mrs. Wadsworth's death. In respect himself alone and not for his copartner; and of those, if any, which were paid before, the the amount which each engages to pay has further inquiry arises as to what amount was reference to, and can only be determined by, paid, and the validity of the payments, and the deficiency, if any, which may appear in their relation to the firm assets. These are the partnership assets on settlement of the part-questions which obviously belong to the settle ment of partnership affairs and therefore within the exclusive jurisdiction of the Court of Common Pleas. A right of contribution can only exist for a deficit in partnership assets. If such deficit existed here it can only be ascertained by the settlement of partnership affairs now pending in that court: Ainey's Appeal, 11 W. N. C., 568. In this view the power of this court to suspend distribution temporarily is clear. The rule established in Hammett's Appeal, 83 Pa. St., 392, that to entitle creditors of decedents' estates to share in the funds for distribution they must present their claims here, notwithstanding the pendency of suits elsewhere therefor has no application, because this court has no jurisdiction to ascertain the amount for which contribution should be enforced: Anicy's Appeal, supra. For Bank, S. A. McClung, Esq. For objecting creditors, H. W. Wier, Esq. Court of Common Pleas, Lawrence County. offer was rejected and a verdict directed for defendants, and a motion for new trial entertained. The action on the case for conspiracy to falsely indict is substantially an action on the case for malicious prosecution and is governed by the same rules. The writ of conspiracy, now obsolete, was a prescribed form, and the substance of it was that the plaintiff had been falsely and maliciously appealed or indicted and had been acquitted, or, in the case of an appeal without indictment, nonsuited. Acquittal or nonsuit were prerequisites to the action. The action for malicious prosecution cannot be maintained until the prosecution itself has ended, and such termination must, by the English and by the weight of the American authorities, have been favorable to the plaintiff either by his acquittal or what is equivalent thereto. In this State a conviction on the indictment would be conclusive against the plaintiff in an action for damages: Kirkpatrick v. Kirkpatrick, 3 Wright, 296, and Herman v. Brookerhoff, 8 Watts, 240. In the State of Maine the courts have taken the opposite view, as quoted approvingly in Ameri JOHN S. MCANLIS v. JOHN PATTERSON and can Leading Cases, 5th Ed., Vol. 1, page 270, but ISABELLA PATTERSON. An action on the case for a conspiracy to falsely indict even there it has been held that, where the original action was settled by defendant therein pay is substantially, an action for malicious prosecutioning a sum of money, he cannot afterwards con and is governed by the same rules. Such action cannot be brought until the prosecution has ended favorably to the defendant therein by acquittal or its equivalent. It cannot be maintained after a nolle prosequi by one who compromised with the prosecutor and paid money or other valuable consideration to obtain such settlement. After such a settlement the presumption is conclusive that there was probable cause for the prosecution. Action on the case for conspiracy to falsely indict. Motion by plaintiff for a new trial. Opinion by BREDIN, J. Filed February 23, 1883. The plaintiff's counsel having stated in his opening that the prosecution instituted by defendants against plaintiff had been settled, and nolle prosequi entered by leave of court, on plaintiff's paying the costs of prosecution, and making provision for the maintenance of the illegitimate child with whose paternity he was charged, we requested an offer to be made including the fact of such compromise that the case might be promptly disposed of. The plaintiff thereupon made an offer to prove the conspiracy; the damages sustained; the compromise, settlement and nolle prosequi, and that plaintiff always protested his innocence and was only induced by the persuasion of relatives and friends, and under apprehension of perjury being resorted to, to sustain the false charge so made against him, to agree to and comply with the terms of said settlement. This tend that there was not probable cause: Marks v. Gray, 42 Me., 86. We have not found any case where an action for damages has been sustained after a compromise and settlement of the original action or prosecution on payment of money or other valuable consideration by the defendant therein charged with an offense. The case of Clark v. Everett, 2 Grant, 416; Mayer v. Walter, 14 P. F. Smith, 283, and Munson v. Austin, 2 Phila., 116, show that an action under such circumstances cannot be supported in Pennsyl vania. See Bigelow's Leading Cases on Torts, note, page 196. The motives of the plaintiff in compromising the prosecution against him are immaterial and could not be proved to rebut the conclusion of probable cause resulting from such settlement. As a rule, perjury must be resorted to, to sustain a false and malicious charge, and the fear that it may be successful, a motive in inducing one so charged, to buy his peace. A denial of guilt under oath could not be allowed to affect the conclusiveness of a verdict of guilty, much less a protestation of innocence be permitted to destroy the effect of an amicable settlement. Motion for new trial refused. For plaintiff, Messrs. J. McMichael and D. B. Kurtz. Contra, Messrs. S. W. Dana and Oscar L. Jackson. Pittsburgh Legal Journal. Editor. PITTSBURGH, PA., MARCH 28, 1883. Supreme Court, Penn’a. Orphans' Court of the county of Philadelphia, in the matter of the estate of William L. Hirst, deceased. The facts were as follows: Mr. William L. Hirst, a well known lawyer of Philadelphia, No. 33. died in August, 1876, leaving a widow and eleven children. By his will Mr. Hirst devised and bequeathed his residuary estate to his wife, in trust to apply the net income, one-third to herself during widowhood and two-thirds among his children living at his death, and authorizing partition to be made among his children at the expiration of seven years from his death. APPEALS OF BARGER, HIRST et al. A testator devised and bequeathed to his wife the residue of his estate in trust to apply the income of the same to herself and to his children living at his death in equal shares, empowering her, at the expiration of seven years from his death, to make partition of his real estate to and among his children (the children of those deceased to take their parent's share), and allot to them their several and respective shares, expressly ordering and declaring that until such partition was made no interest was to vest in any of his children. He also gave his wife such power over the income of the estate that she might retain any child's share until the distribution of the corpus of the estate was made, and then incorporate the same with such child's share. Held, that no child had any vested interest in the testator's estate until partition was made, and that any income retained became a part of the estate, and did not vest until the share of which it formed a part was allotted. A., one of the children of the said testator, having mort gaged his interest in the said estate, afterwards died within the seven years. Upon distribution of the account filed by the trustee of testator's estate, the mortgagee claimed arrears of interest out of the share of income to be awarded to the estate of A. Held, that upon the decease of A., all his right and title to the estate ceased; that his administrators were not entitled to any part of the income thereof, and that the mortgagee could not collect the arrears of mortgage. Held further, that a grandchild, being a child of A., took immediately from the testator, and not from his parent. Also held, that the retention of income under the testator's will was not in conflict with the statute forbidding perpetuities. Where payments are made by an accountant to preserve the capital as well as the income of an estate, each of these accounts should bear a proportionable share of such payments. Mrs. Hirst was discharged as trustee on her own petition by the Orphans' Court, and The Philadelphia Trust, Safe Deposit and Insurance Company appointed in her place. The latter having filed an account as trustee aforesaid, both as to principal and income, the same came in due course for audit before PENROSE, J., in the Orphans' Court. It appeared that William L. Hirst, a son of the testator, had executed a bond, dated October 28, 1878, in favor of one Mary Clark, conditioned for the payment of $1,500 in five years from the date thereof, with interest, payable quarterly. The bond contained a provision to the effect that if default should be made in payment of interest for the space of thirty days after any quarterly payment should fall due, then the whole principal sum should, at the option of the obligee, become due and payable. Accompanying this was a mortgage, whereby the said William L. Hirst, Jr., conveyed all his right, title and interest in the estate of his father, William L. Hirst, Sr., deceased, real, personal and mixed, to secure payment of said obligations, with the usual clause, providing that if default should at any time be made for thirty days in payment of interest, a writ of scire facias could at once issue to collect the entire debt and interest due. William L. Hirst, Jr., the mortgagor, died March 17, 1880. It appeared that during his lifetime the interest on Mrs. Clark's mortgage Appeals from the decree of the Orphans' Court had been regularly paid, but the interest falling of Philadelphia county. These were appeals (1) of Adele H. Barger, Fannie C. Hirst, James R. Hirst, Anthony A. Hirst, Adele H. Barger, trustee, Stephen C. Hirst, and Lydia B. Hirst, guardian of the minor children of William L. Hirst, Sr., deceased; (2) of Anthony A. Hirst, administrator of the estate of William L. Hirst, Jr., deceased; (3) of The Philadelphia Trust, Safe Deposit and Insurance Company, trustee under the will of William L. Hirst, deceased, and (4) of Edwin De Forest Hirst, from certain decrees of the due April 28, 1880, and all interest falling due | thereafter, had not been paid. Notice of the mortgage was given by the mortgagee to the trustees of the estate of William L. Hirst, Jr., March 5, 1879, and demand was thereby made for all sums which would otherwise be paid to the mortgagor, William L. Hirst, Jr.; and the share of the latter's income of the estate from that time was now claimed by counsel for mortgagee. But it was found as a fact by the auditing judge that it was the intention of the parties |