ary, 1865, and gave him his note under seal of distributed to them, the proportion the widow that date for that amount. would have received being sequestered for their benefit. William died soon after, leaving survive a widow and children, and no estate from which the debt could be collected, and it is not paid. The note is included in the inventory, and as the executors are charged with it they claim credit in their account for it as lost. The widow excepts to this and claims that it is to be charged against the legacies bequeathed to William's children. In this distribution these children only take under the residuary clause of the will in which the testator directed that his residuary estate should be equally divided between his wife, his son, George S. Carnahan, his heirs and assigns, his son, David S. Carnahan, his heirs and assigns, and the heirs and assigns of his son, William Carnahan, deceased. If the children of William take by representation through their father there is no doubt but that his indebtedness to the estate is to be charged against their distributive shares: Hughe's Appeal, 57 Pa. St., 179. The bequest is made to the heirs and assigns of his son William. It is evident that the word assigns is to be treated as mere surplusage, and the bequest is to be construed as if the word heirs alone were used. There can be but little doubt that the word was used merely as descriptive of the persons who were to take, and that the bequest is directly to them. As they therefore take in their own right, and not by representation, the indebtedness of their father to the estate cannot be charged against their distributive shares: Person's Appeal, 74 Pa. St., 121. | (6.) The balance for distribution, per account filed, is $9,806.70. The accountants concede they are to be surcharged with $184.39 interest on D. W. Huntsman & Co.'s note. They are also to be surcharged with excess of credit claimed for loss on Point Bridge stock, $200, which makes the true balance $10,191.09. After deducting clerk's costs, $10, there is left for distribution $10,181.09, one-third of which, $3,393.69, is to be distributed to the widow, leaving to be distributed under the will $6,787.40, from which is to be deducted $3,357, amount of pecuniary legacies paid by executors and the following specific legacies: three shares L. S. M. R. bequeathed to George S. Carnahan of the value of $150; three shares bequeathed to D. §. Carnahan, $150; one share to James B. Carnahan, $50, which leaves for distribution under the residuary clause of the will $3,080.40, which is to be divided into three equal shares, each being $1,026.80. David S. Carnahan, who takes one-third of the residuary estate and a specific legacy valued at $150, is indebted to the estate on two notes in the sum of $1,580 with interest from His specific legacy and share of the residue are then to be appropriated to the payment of this indebtedness and will not be sufficient to pay it in full. There is then collected for the estate from David S. Carnahan, his share of the residue, $1,026.89, and this specific legacy valued at $150, making in all $1,176.80. As the whole of David S. Carnahan's interest in the fund for distribution will not be sufficient to pay his indebtedness to the estate, this fund then of $1,176.80 is to be distributed to the widow who is entitled to the one-third thereof, to George S. Carnahan who is entitled to one-third after deducting the widow's share, or two-ninths of the whole, and to the children of William Carnahan, deceased, who are entitled to two-ninths of the whole fund. That is, the whole fund is to be distributed to parties representing the seven-ninths of it. As the whole fund, $1,176.80, is to be distrib- . (5.) By the residuary clause of the will the residue of the estate is to be divided into four equal shares, the widow being one of the residuary legatees. She having refused to take under the will, the question arises as to whether the other residuary legatees take the whole of the residue or only that proportion of it they would have taken if the widow had accepted under the will. The rule of law laid down in Sandors' Appeal, 65 Pa. St., 314, and approved in Gallagher's Appeal, 87 Id., 200, is, (1) Where a widow elects not to take under a will, her substituted devises and bequests are a trust in her for the benefit of the disappointed claimants touted to parties representing seven-ninths of it, the amount of their interest therein. (2) A court of equity will sequester the benefit intended for the wife to secure compensation to those whom her election disappoints. In this case if the whole residuary fund be distributed to the other residuary legatees, they will not receive as much as they would if the widow had taken under the will. It follows then that the whole of the residue is to be one-ninth interest would be entitled to one- For accountant, Messrs. Carnaham & Miller. Although a wooden building erected contrary to law is not, per se, a public nuisance, yet it may become such by the manner in which it is used; as for instance, being highly inflammable and unprovided with the usual protection against fire, it is used day and night by drunken and disorderly persons, whereby the lives, health and property of citizens are endangered, and the public safety imperilled. A private person, if specially aggrieved, may abate a public nuisance, peaceably and without a riot. Error to the Court of Common Pleas, No. 1, of Philadelphia county. Trespass by George T. Fields against William S. Stokley. The plaintiff in the year 1876 had erected on a lot of ground near the Centennial Buildings a certain frame building, which the defendant, who was then the Mayor of the city of Philadelphia, caused to be pulled down on September 22d of that year, for which destruction of building, contents, etc., this action was brought. Opinion by SHARSWOOD, C. J. Filed January 23, 1882. that the nuisance should be abated, and would have been a conclusive justification of the action of the defendant. The defendant was the Mayor of the city, and charged with the conservation of the peace and the protection of the property of the city. He was the representative of the city. It is true that a wooden building, though erected contrary to law, is not, per se, a public nuisance. But it may become such by the manner in which it is used or allowed to be used. It is true that a private person, not specially aggrieved, cannot abate a public nuisance, and especially where a statute provides a remedy for an offense created by it, must be followed. It is well settled, however, that a private person, if specially aggrieved by a public nuisance, may abate it. In Resing v. Shoneberger, 2 Watts, 23, it was held by this court that the erection of a building upon a public square of a town was a public and not a private offense, and may be abated by any one agmoved by officers of the town by virtue of the grieved. In that case the buildings were reauthority of the town council, and the person in possession, and who had erected the buildings, had recovered in an action of trespass. This judgment, however, was reversed, Mr. Justice ROGERS saying: "A nuisance, whether public or private, may be abated by the party aggrieved, so that it is done peaceably and without a riot. The reason, says Blackstone, 3 Com., 5, why the law allows this private and summary method of doing justice is, because injuries which obstruct or arrest such things as are of daily convenience and use, require an imIt appears by the record before us that it was mediate remedy, and cannot wait for the slow expressly agreed, after the trial had progressed progress of the ordinary forms of justice." The some time, that all the facts set forth in the jury, under the charge of the learned judge, has special plea, not already proved, should be con- found these buildings to be of that character. sidered as having been proved. The plea avers, The city of Philadelphia was the owner of large inter alia, that the houses mentioned in the and valuable property in their neighborhood. declaration, and for the removal of which this Any hour of the day or night they were in action was brought, were composed wholly of danger of being set on fire by those who frehighly inflammable and combustible material, quented them with the owner's permission. It and were insufficiently provided with chimneys is stated as a fact in the special plea, and of and the usual and ordinary appliances for pro- course a fact admitted by the agreement, that tection against fire, and were so used constantly, the public safety was imperilled. Nothing night and day, by drunken and disorderly per- more was necessary to justify the action of the sons; that the lives, health and property of citi- defendant. If the owner or tenant of a powder zens were greatly endangered, and the public magazine should madly or wickedly insist upon safety imperilled. The question whether they smoking a cigar on the premises, can any one were a public nuisance was fairly submitted to doubt that a policeman, or even a neighbor, the jury by the learned judge below, and the could justify in trespass for forcibly ejecting verdict of the jury in favor of the defendant es- him and his cigar from his own premises? It tablished that fact. Had the presentment by is true a private person assuming to abate a the grand jury been followed up by an indict- public nuisance takes upon himself the responment, trial and conviction of the plaintiff be-sibility of proving to the satisfaction of a jury low, the judgment thereon would have been the fact of nuisance. The official position of the defendant as Mayor of Philadelphia did not From all these awards the defendants aprelieve him from his personal responsibility in pealed, in the first three cases, on the 25th May, this respect. But he has been sustained by the | 1874, and, in the other, on the 4th November, verdict of the jury, which is a justification of | 1874. his alleged trespass. We are of opinion that this case was properly submitted to the determination of the jury; that there was nothing in the charge calculated to mislead them, and that it would have been manifest error if the learned judge had affirmed the plaintiff's points, and thereby in effect instructed the jury to find a verdict in his favor. Judgment affirmed. For plaintiff in error, David W. Sellers, Esq. Contra, Messrs. C. E. Morgan, Jr., Wm. Nelson West and Rufus E. Shapley. In the first case, to wit, that entered to No. 323 August Term, 1874, on the 24 February, 1877, the cause came on for trial, and a verdict in favor of the plaintiffs was obtained for the sum of $2,581.68, and on the 13th September, 1877, judgment on the verdict was entered. In the second case, to wit, that entered to No. 324 August Term, 1874, judgment by consent was, on the 15th April, 1878, entered in favor of the plaintiffs for the sum of $4,744. In the third case, to wit, that entered to No. 325 August Term, 1874, judgi ment by consent was, on the 15th April, 1878, APPEAL OF THE FIRST NATIONAL BANK entered in favor of the plaintiffs for the sum of OF NORTHUMBERLAND. A judgment upon an appeal from an award of a board of arbitrators, under the Compulsory Arbitration Act, entered within five years from the date of said award | continues, the lien thereof conferred by the Act of June 16, 1836, P. L., 717, and limited by the Act of April 21, 1840, P. L., 449, for five years from the date of its entry, entirely irrespective of the period when said award was filed and the lien thereof attached. It is not necessary in order to secure priority of lien to $5,910.11; and in the last case, to wit, that entered to No. 524 August Term, 1874, on the 6th of December, 1876, this cause came on for trial, and a verdict in favor of the plaintiff was obtained for the sum of $1,498.95, and on the 3d of April, 1877, judgment on the verdict was entered. No writs of scire facias were issued to revive and continue the lien of the awards in these cases, or in any of these several actions after appeal, either to continue the lien of the such judgment over others entered prior to the date of awards or of the judgments therein afterwards its entry, but subsequent to the filing of the award, that the fact should be noted in the judgment docket that said judgment is based on such award. obtained. Nor was there any agreement by and between the parties to revive and continue the lien of either judgment or award made and Nor was there any filed in any of these cases. Appeal of the First National Bank of Northumberland from a decree of the Court of Common Pleas of Northumberland county, dismiss-memorandum or entry upon the judgment or ing its exceptions to and confirming the report lien docket of any proceeding between these of the auditor appointed to distribute the pro- parties, either in nature of a scire facias or otherceeds of certain real estate sold as the property wise, after the entry thereupon of the memoran of Amos E. Kapp & Co. The facts of the case as found by the auditor were as follows: In 1874 Amos E. Kapp & Co. were seized of certain tracts of land. To August Term, 1874, the First National Bank of North umberland brought four several actions against May 16, 1874, to No. 324 August Term, 1874, May 16, 1874, to No. 325 August Term, 1874, award filed.... October 20, 1874, to No. 524 August Term, 1974, award filed... .$5,034.17 4,044.67 2,222.47 1,329.04 dum of the awards of arbitrators. No entry was made in the judgment docket in which the above judgments were entered to show that they were based on awards. Subsequent to the filing of said awards, but prior to the entry of the judgments thereon, John B. Packer and others obtained judgments against Amos E. Kapp & Co. aggregating $40,000. Subsequent to the entry of the bank judgments, divers other judgments were also entered against Amos E. Kapp & Co., under one of which the real estate of said firm was taken into execution, and sold on February 2, 1881. The amount realized from this sale, deducting costs, was $29,307.53, which constituted the fund for distribution. Counsel for the bank contended that their claims were entitled to payment in full out of said fund before any other of the judgment creditors. The auditor held, however, that although the lien of the bank awards attached on the several dates the awards were filed, yet notwithstanding the fact that they were appealed from, and these appeals were pending, that the plaintiff having neglected to issue scire facias within five years from the dates of the awards, lost its lien upon the real estate, and that the subsequent judgment did not have the effect of carrying the lien acquired by the award forward, and therefore postponed these judgments in the distribution to the other judgments obtained between the filing of the award and the date of the final judgment on the appeals. The bank filed exceptions to this report which were, however, dismissed by the court in an opinion by ROCKEFELLER, P. J., and the report confirmed. The bank thereupon took this appeal, assigning for error the decree of the court. For appellant, Messrs. J. A. Cake and S. P. Wolverton. was entered of record. The judgments does not take the place of the award, but brings it into active operation with respect to its incidents of lien and accruing interest which attached from the filing of the report. Where the judgment on the appeal is for a less sum than the award, such sum is the amount which continues a lien : Reed v. Garvin's Ex'rs, 7 S. & R., 354. If a larger sum than the award be recovered, the lien of only so much as the award takes effect from its date. It is the award that is made a lien, and an additional sum, which formed no part of it, cannot be extended: Chirsty v. Crawford, 8 W. & S., 99. It cannot be pretended that the Act of 1840 has made any change in the effect of a judgment in the cause after an appeal from the award. It has made no difference in the procedure to obtain judgment. Its sole effect is to limit the lien of the award, unless re Contra, Messrs. John B. Packer and W. I. vived, and the revival merely continues the Greenough. lien until reversal or satisfaction, as it formerly continued without revival. If the lien has not Opinion by TRUNKEY, J. Filed May 22, 1882. expired it is extended by the judgment; if exIt is provided by the Act of 1836, relating to pired, the lien of the judgment begins with its compulsory arbitrations, that every award, prop- entry or with the verdict of the jury. Why erly entered of record, "shall have the effect of revive the lien of an award which has been a judgment with respect to the party against appealed from, after final judgment? The judgwhom it is made, from the time of the entry ment is the end of litigation, it becomes the lien, thereof, and shall be a lien upon his real estate, its payment may be enforced by execution to be until reversed upon appeal or satisfied according levied upon either real or personal estate. The to law." This is similar to the prior statutes award no longer is a security; it never could upon the same subject, and continues the lien have been enforced by execution, its efficacy terof an award, from which there has been an ap- | minated at the entry of the judgment. Its repeal, until it shall be reversed or satisfied: Ram-vival would not preserve the lien of the jugdsey's Appeal, 4 Watts, 71; Dietrich's Appeal, Id., 208. Such lien was of indefinite duration, dependent upon the delay in bringing the case to a final trial, and continuing without revival or subsequent notice in any form. For the manifest purpose of placing the lien of an award upon like footing as that of judgments or mechanic's liens, the Act of April 21, 1840, was enacted, providing for the limit of the lien of an award to five years when an appeal is pending, unless revived in the same manner as judg-years from the filing of the award, and if the ments may be revived. Before that act awards unappealed from were judgments, whose liens would expire, if not revived, as the liens of other judgments. And so they have been since. An award against a defendant appealed from is not a judgment, but has the effect of a judgment as a lien upon his real estate within the county where the suit is pending, until the determination of the appeal: Hallman's Appeal, 18 Pa. St., 310. If judgment be obtained for the amount of the award, or less, the lien of that judgment will continue for five years from its date, and take effect from the time the award ment, and would be a vain thing. To construe the Act of 1840 so that the lien, which has been extended by the final judgment, will expire in five years from the entry of the award, unless the award be revived after such judgment, would be a departure from its plain intendment. So far as advised, this is the first demand for such construction. The practice has been as if the act had no application to a case where final judgment was entered within five meaning were doubtful, the general understanding and practice of the profession should be considered; but it is not doubtful. The limitation began to run against the liens of the awards in favor of the First National Bank on the day they were entered. They had not expired at the date of the judgments. The appellees claim that these judgments were defectively entered in the judgment docket, and for this cause also are not entitled to the money. Section 3 of th Act of March 29, 1827, requires the prothonotary to keep a judgment docket, in which "no case shall be entered until after there equivalent to the constructive notice by a proper entry. It is only a subsequent encumbrancer who can claim to have suffered injury from a want of notice of a prior lien: Hood & Co.'s Appeal, 51 Pa. St., 204. The judgments of the appellees were entered subsequent to the awards. They had the full legal notice of the prior liens in favor of the appellants. They gave credit in view of these liens; at least in this view their own liens were taken. As respects such creditors, they had notice from the entry of the awards, and have suffered no injury from the omission to note at the place of the entry of the judgments that they were revivals of awards. Had the liens of the awards been dropped, then the appellees would have become the prior lien creditors; now they are posterior, and neither the statute nor any rule in equity requires that the appellant's liens shall be postponed to theirs. We are of opinion that the judgments in favor of the appellant, described in the fourth assignment of error, as against lens subsequent to the filing of the awards in said cases, are first entitled to payment out of the proceeds of the sheriff's sales. shall have been a judgment or award of arbitra- creditors. Notice is the true purpose. Actual tors in such case, and into which shall be copied notice of a judgment defectively entered, is the entry of every judgment or award of arbi- | trators, immediately after the same shall have been entered; which entries, so to be made in the said judgment docket, shall be so made that one shall follow the other in the order of time in which the said judgments and awards shall have been rendered, entered, or filed, as aforesaid; and the entries in each case in said judgment docket shall particularly state and set forth the names of the parties, the term and number of the case, and the date; and in case the judgment shall be for a sum certain, the amount of the judgment or award; and when any judgment shall be revived by scire facias or otherwise, or when any execution shall issue in any case, a note thereof shall be made in the proper judgment docket, at the place where the other entries in such case may have been made:" Purd. Dig., 822, pl. 18. The judgment docket is intended to afford purchasers and subsequent encumbrancers certain information in regard to the lien of judgments. Hence, if the entry is in a wrong name, so that those searching may be misled, or if it is wrongly described as to amount or in any other material particular, third parties will be protected in acting on the faith of it: Coyne v. Souther, 61 Pa. St., 455. The Act of April 22, 1856, Purd. Dig., 824, pl. 23, made additional provision that the lien of no judgment execution levied on real estate, or scire facias to revive a judgment, shall commence or be continued, as against a purchaser or mortgagee, unless the same be indexed in the judgment index. Whether it is necessary to note in the judgment docket, when final judgment is entered, that there was an award of arbitrators, in order to protect the lien as against third persons, need not be determined in this case. That the judgments were properly entered on the judgment docket to preserve their liens from the date of such entries against everybody, is not denied. That the awards were liens from the date of filing until the date of the judgments, is unquestioned. No creditor whose lien attached subsequent to the appellant's judgments can take the money in preference. What right have creditors, whose lien attached between the filing of the appellant's awards and the entering of the judgments in the same cases? As a general rule, the judgment docket regulates the standing of the lien creditors and the sums to be paid to them. The design of the statute requiring judgments to be entered on a judgment docket in the order of time in which they were rendered, was to furnish knowledge of the liens to subsequent purchasers and lien Decree reversed at the cost of the appellees, and the record ordered to be remitted that distribution may be made in accord with the foregoing opinion. CLAUER'S APPEAL. The provisions of the Act of May 14, 1857, P. L., 507, that bastards shall be legitimated by the subsequent marriage and cohabitation of their parents should be liberally construed. The parents of a bastard were married, but immediately separated by agreement. The father subsequently visited his wife some four or eight times, remaining with her from Saturday to Monday on each occasion, and frequently recognizing the child as his. After six months the visits ceased, and the parties were divorced. Held, to constitute "cohabitation" sufficient under the Act of Assembly to legitimate the offspring. Appeal of Cyrus Clauer from a decree of the Orphans' Court of Schuylkill county, dismissing his exceptions to, and confirming the report of the auditor appointed to make distribution of the estate of Jacob Clauer, deceased, intestate. Before the auditor Sarah Jane Clauer claimed the distributive share of her deceased father, Franklin Clauer, who was a son of the decedent. Her claim was resisted by the other heirs on the ground of illegitimacy. It appeared from the evidence that Sarah Jane Clauer was born April 20, 1867. Her mother, Mary Fessler, prosecuted the alleged father, Franklin Clauer, for fornica |