in which we sustained a compulsory nonsuit. There the prosecutor was simply informed by the word of a third person, that he had seen the prosecutor's gauntlets in possession of the plaintiff; while here the plaintiff himself not only admits that he took the goods, and took them secretly, but produced them from his pocket and delivered them to the prosecutor on demand of the latter, who immediately charged him with theft, and sent for an officer to arrest him. Miller, the plaintiff's witness, testified that Sutton charged the plaintiff with theft in the first instance, and that Anderson at first denied having them, but after being told that Richardson had told Sutton all about it, admitted that he had them and delivered them to Sutton. Anderson's allegation, on the witness stand, that he took the samples the day before he was discharged, does not help his case in the least, as he does not say that he told that to Mr. Sutton, and he does not pretend that he had a general authority to take samples for any purpose. His statement that he took the samples to sell goods by, is emphatically disproved by his own testimony, that he used them with a customer of the house for the very purpose of preventing sales. It is not at all necessary to recur to Sutton's testimony to make out a case of probable cause. The burden of proving want of probable cause rested upon Anderson, and he must also prove malice: Kirkpatrick v. Kirkpatrick, 3 Wright, 288; Dietz v. Langfitt, 13 P. F. Smith, 234; Bernar v. Dunlap, 13 Norris, 329. The burden of proving probable cause was not shifted to the defendant in this case, because the plaintiff established it by his own testimony, and when this is the case it is the clear duty of the court to so instruct the jury. This is held in the cases of Dietz v. Langfitt and Bernar v. Dunlap, supra. We think the learned judge was in error in the matter covered by the fourth assignment. It is certain Anderson did not testify that he had a right to the possession of the, samples, or that in addition to his duties as porter he took samples and sold goods at night. The statement of the learned judge to that effect would tend to mislead the jury, and was hence erroneous. Nor do we think there was any conflicting testimony as to any material facts of the case. Upon the testimony of the plaintiff and his witness, it is quite clear to us that probable cause for the prosecution was fully established. ness, and never mention the name of Sutton again for reference or for any other purpose, if he, the witness, would induce Sutton to take this course. The assignments of error are all sustained except the second and sixth. Judgment reversed. HOFF'S APPEAL. A mechanic's claim for repairs, alterations and additions, is a lien only from filing, and does not relate back of the filing. Therefore, when the terre-tenant dies before the same is filed, the mechanic claimant has no priority, and his claim comes in pro rata with the other debts of decedent not of record. Appeal from the decree of the Court of Common Pleas, No. 2, of Philadelphia county. Alfred Vezin died April 15, 1881, and the fund in the court below was derived by a sheriff's sale of certain of his real estate under a judgment on a mortgage. The sale was made January 3, 1882. The appellant's lien for repairs was not filed until after Vezin's death, although the work was done before that event, and the lien was filed within the six months from the completion of the work. The auditor and court below awarded the balance of the fund, after payment of the mortgage judgment, to the administrator of Vezin, which is assigned for error. For appellants, Jos. C. Ferguson, Esq. Contra, Messrs. George W. Shoemaker, Wm. H. Staake and R. H. Hinckley. PER CURIAM. Filed February 5, 1883. In this distribution the appellant claims under an alleged mechanic's lien for repairs, alterations and additions to the building sold at sheriff's sale. The Act of May 1, 1861, Pur. Dig., 1028, pl. 20, applicable to such claims in the city of Philadelphia, expressly declares they shall not be a lien "except from the time of filing the claim." The appellant's claim was not filed in the lifetime of the owner of the building. When he died it was not of record, and no lien existed by virtue of the act cited. By his death it became a lien like other debts of his not of record. It was then of no higher grade. It had no preference over any other of his debts. The filing of the claim afterwards gave no preference. The claim, which under the Act of 1861 was no lien until filed, could not create a lein which would relate back of the filing whether the owner of the building was living or dead when it was filed. The abandonment of the prosecution was entirely explained by Vansant, who said that Decree affirmed and appeal dismissed at the Anderson promised he would go about his busi- | costs of the appellants. Lands held in trust for A., B., C., D., E. and others, as tenants in common, was about to be sold by the trustees. A., B., C., D. and E. verbally agreed together to purchase it. The trustees conveyed to A. and B., receiving in payment nine bonds and mortgages, executed by A. and B. alone, for the whole purchase money, payable in six annual installments, each mortgage covering the whole land. The bonds and mortgages were assigned by the trustees to the cestuis que trust entitled to them. C., D. and E. each received one bond and mortgage. It was also verbally agreed that A., B. and C. should each pay one-fourth of the purchase money, and D. and E. each one-eighth and should each have a proportionate interest in the land; that C., D. and E. should surrender to A. and B. the bonds and mortgages assigned to them, in part payment of their share of the purchase money and should pay the balance of their shares to A. and B. in six annual installments, and that each upon payment of his share of the purchase money should receive a deed from A. and B. for his interest as tenant in common. D. surrendered his bond and mortgage to A. and B. when he received them from the trustees, and paid to them, when it became due, the first installment of the balance of the purchase money to be paid by him, and in a short time afterwards made a further payment on account, and before the second installment became due died. E. had surrendered his bond and mortgage, paid the balance of his share of the purchase money and received a deed for his interest in the land. Upon distribution of D.'s estate in the Orphans' Court, A. and B. claimed the balance of D.'s share of the pup chase money remaining unpaid. This was contested by D.'s heirs. E. was examined, under objection, as a witness to prove the verbal agreement. Held, that these facts created a valid trust in favor of D., not within the statute of frauds, which could be enforced by him or his heirs against A. and B. Where the cestui que trust can compel the specific performance by the trustee of the contract creating the trust, it can be enforced by the trustee against him. One not directly interested in the case before the court is a competent witness, although he is directly interested in the question involved. The Orphans' Court in the settlement and distribution of the estates of decedents has undoubted jurisdiction to decide upon the claims of creditors. Appeal from the decree of the Orphans' Court of Allegheny county by heirs of Samuel Watters, deceased. John Herron, J. H. Mitchell, trustees, C. A. Armstrong, William Roseburg, Robert Marshall, J. H. Mitchell, William Stevenson, John W. Chalfant and C. B. Herron held as tenants in common seven hundred and seventy-five acres of coal in South Fayette township, Allegheny county, legal title to which was in C. H. Armstrong, James H. Mitchell and C. H. Spang. Some of these parties desiring to sell, it was agreed verbally between John W. Chalfant, C. B. Herron, Samuel Watters, the decedent, Robert Marshall and C. H. Armstrong, that Chalfant and Herron should purchase the property for them in the following proportions: John W. Chalfant, one-fourth interest; C. B. Herron, one-fourth; C. H. Armstrong, onefourth; Samuel Watters, one-eighth, and Robert Marshall, one-eighth, for the price of $155,162.50, to be paid in six annual payments, the deed to be made to Chalfant and Herron. On the 1st of January, 1873, after this verbal agreement was made, C. H. Armstrong, James H. Mitchell and C. H. Spang executed and delivered to Chalfant and Herron a deed for the property, and Chalfant and Herron executed and delivered to them nine separate bonds and mortgages, payable in six annual payments, aggregating $143,226.90, to secure the payment of the purchase money thereof. This sum, with the interest of Chalfant and Herron in the property, making the total purchase money $155,162.50. These bonds and mortgages were in amounts representing the different interests of the parties in the property and one representing such interest was assigned to each of them. It was part of the verbal agreement between Chalfant and Herron and the parties for whom they purchased that they were to release their mortgages on the property, pay the balance of the purchase money due by them in six annual payments, and when that was paid receive deeds from Chalfant and Herron for their interests. Samuel Watters, the decedent, had assigned and delivered to him one of these bonds and mortgages for the sum of $11,935.56. The mortgage has not been satisfied on the record, but it and the accompanying bond are in the possession of Chalfant and Herron. With this exception and the exception of the last payment of $7,957 due on one of the mortgages, they are all satisfied in full on the record. On the 19th day of May, 1882, the decedent's administrator issued a writ of scire facias in the Common Pleas Court, No. 1, Allegheny county, on the said mortgage. Messrs. ChalThe facts are fully stated in the statement fant and Herron filed an affidavit of defense to and opinion of the lower court. this action in which they set up the facts as Samuel Watters, the decedent, C. H. Spang, above stated, inter alia, and aver that they are Total payments.. $1,500 800 200 250 money due on the whole property by their amount, and would be a payment of that much of the purchase money. The legal effect of this agreement was that the mortgage of the decedent was applied to the payment pro tanto of the purchase money of his interest in the property, at the time the title was acquired by Chalfant and Herron. It is true the mortgage assigned to the decedent was not satisfied on the record, but it and the accompaning bond are in the possession of Chalfant and Herron, the mortgagors. And whilst there is no direct evidence that they were delivered to them by him, there can be no hesitation in coming to the conclusion from all the circumstances of the case, that the decedent ..$2,750 The purchase money for his one-eighth interest was $19,395.31; the amount of the mortgage assigned to him was $11,935.62, which left the balance of $7,459,69 of purchase money due on his interest. After deducting the cash pay-surrendered them as evidence of their payment. ments made by the decedent, and charging him with his share of the expenses of the trust and cash paid for taxes, there was due to Chalfant and Herron, including interest to April 10, 1882, $8,193.77, for which a claim is presented by them. Objections are made by the next of kin to this claim, on the ground that as it is not founded on a written agreement, it is within the statute of frauds, and cannot be enforced. Opinion by OVER, J. The claim of Messrs. Chalfant and Herron being for the purchase money of real estate, and being founded on a verbal contract, under the statute of frauds, cannot be allowed, unless there was a resulting trust in the property in favor of the decedent. An examination of the authorities shows this is raised in two ways. (1.) When the title is taken in the name of one person, while the purchase money is paid when the title is acquired, in whole or in part by another, there is a resulting trust in favor of the latter: Edwards v. Edwards, 3 Wright, 369; Bennett v. Dougherty, 32 Pa. St., 371. (2.) When one haying an interest in land is induced to confide in the verbal promise of another, that he will purchase it for the benefit of the former, and in consequence the other is allowed to obtain the legal title, his denial of the confidence is such a fraud as will make him a trustee ex maleficio: Woodford v. Harrington, 74 Pa. St., 311, and 86 Id. 39. By the terms of the purchase of this property there was no cash to be paid at the time the deed was delivered. But under the verbal agreement between Chalfant and Herron and the parties for whom they purchased, the mortgages received by them for their interests were to be released. The release of the mortgages held by them would reduce the amount of the purchase And as the mortgage under the agreement was paid and should have been satisfied, the fact that it was not is not material. Equity will consider that as done which ought to be done. This case then seems to fall within the first class of resulting trusts. It would appear, also, to be within the second class. The decedent had an interest in this property at the time Chalfant and Herron purchased it. He was induced to rely on their promises made before the purchase by them, that they would purchase for his benefit. Can there be any doubt, that if they denied the confidence they would be held to be trustees ex maleficio. Then as Chalfant and Herron are bound by the contract, it must be mutually binding, and it can be enforced against the decedent's legal representatives. It was contended by counsel for the next of kin, that the evidence of Robert Marshall, the principal witness for the claimants, should be excluded, on the ground that he was an interested party and therefore incompetent as a witness. Chalfant and Herron had conveyed to him by deed with special covenant against incumbrances an undivided eighth of the property. As the mortgage assigned to the decedent covered the whole of this property, it may be under the authority of Kinson v. Keck, 8 W. & S., 16, that he was incompetent as a witness, and that his testimony should be excluded had objections been made to his examination on that ground in time. This cause came on for hearing first on the 25th day of June, 1880, when counsel for the claimants made a full statement of the facts of the case. At the instance of counsel for next of kin, the hearing was continued to give time to investigate the claim. It came on again on the 17th of April, 1882, and Robert Marshall was the first witness called and examined by the claimants, and was cross-examined by counsel for next of kin. The only objection then made was to the competency of his evidence. Mr. Marshall was again examined on the 19th of July, 1882, without objection being made to his competency, and on that day, after the claimants closed their case, the first objections were made to his competency as a witness. The next of kin knew, or could have known by the exercise of ordinary diligence, at the time Mr. Marshall was examined as a witness, the facts which it was claimed rendered him incompetent. This being the case, the objection was not made in time, and the exclusion of his evidence is discretionary with the court: Robinson v. Snyder, 25 Pa. St., 203; Greenleaf's Evidence, Sec. 421. If there was any conflict of testimony or any doubts as to the truth of his evidence, it should perhaps be excluded. It is uncontradicted and fully corroborated, and as its exclusion might defeat a just claim, it should not be stricken out. The errors assigned were, to the admission of Robert Marshall's testimony, and to finding that the fates created a resulting trust in favor of Watters, not within the statute of frauds, which could be enforced by him against the appellees, and that the verbal agreement was therefore mutually binding and enforceable. For appellants, Messrs. Thomas C. Lazear and T. Walter Day. Marshall was incompetent on the ground of interest, as he owned an undivided eighth of the property which was covered by the mortgage of Chalfant and Herron, assigned to Samuel Watters. Kuester v. Keck, 8 W. & S., 16. Meason v. Kaine, 63 Pa. St., 335. The objection to his testimony was made in time and it should have been excluded from consideration. Shurtlep v. Willard, 19 Pick., 202. Verths v. Hagge, 8 Iowa, 163. Lewis v. Morse, 20 Conn., 211. Jacobs v. Layburn, 11 M. & W., 685. If the appellees have any claim, their remedy is by action in the Court of Common Pleas against Watters' representatives for damages for the breach of the parol contract. Meason v. Kaine, 63 Pa. St., 335. Meason v. Kaine, 67 Id., 126. Dumars v. Miller, 34 Id., 319. The proviso to the statute of frauds, permitting a parol agreement to establish a resulting trust, was never placed there to be used by a trustee, but to protect the cestui que trust from the trustee, and a vendor cannot use it to enforce a parol agreement for the purchase of land. There was no money paid by Watters to the appellees before or at the time of their purchase, and therefore there was no resulting trust created in his favor. Bamet v. Dougherty, 8 Casey, 371. The testimony at most establishes a breach of a parol contract on the part of Watters, and the appellees' remedy is in the Common Pleas. Meason . Kaine, 63 Pa. St., 335. Contra, Messrs. W. W. Thomson and W. L. Chalfant. The Orphans' Court has full jurisdiction to decide upon the claim of the appellees. Kitteras' Estate, 5 Harris, 422-3. Whitesides v. Whitesides, 8 Id., 474. Black's Ex'rs v. Black's Ex'rs, 10 Id., 356-7. Marshall was not interested. The bond and mortgage of Chalfant and Herron, assigned to Watters, were in their possession, and had been produced and given in evidence by them at the trial as their property. This was prima facie evidence that they were paid, and sufficient. 2 Jones on Mortgages, 913. 2 Greenleaf on Evidence, 2 527. Levy v. Merrill, 52 Howards P. & R. (N. Y.), 360. Crocker v. Thompson, 3 Met., 231. Flower v. Elnwood, 66 III., 444. Ormsby v. Barr, 21 Mich., 481. Johnston v. Natuns, 26 Miss., 147, 151. Succession of John C. Norton, 18 La Ann'l R., 36. McGee v. Provitz, 9 Met., 551. Baring v. Clark, 19 Pick., 220, 227. Wilson v. Goodin, 1 Wright (0.), 219. Connelly v. McKean, 14 P. F. Smith, 113, 118-9. At the time the first installment of the bond and mortgage assigned to Watters became due, and within a short time afterwards, Watters paid to the appellees $2,750. This is evidence that the mortgage was paid. Where a creditor holding an obligation of his debtor is shown to have given to his debtor a promissory note or other obligation for the payment of money, after the date at which the obligation held by him became due, there is, in the absence of anything, to show what was the con sideration of the latter obligation, a legal presumption that no previous indebtedness existed at the time of making the latter obligation. Abbott's Trial Evidence, p. 208, ¿ 20. Freest v. Bloomingdale, 5 Denio, 304-5. Gibson v. Winslow, 10 Wright, 384. These authorities show that the verbal agreeThe mortgage being paid its lien was gone ment in this case, not coming within the statute and Marshall not interested. The transaction out of which a resulting or constructive trust arises may be proved by parol evidence. Perry on Trusts, 137. Lloyd v. Carter, 5 Harris, 216. Wallace v. Duffield, 2 S. & R., 524. Lynch v. Cox, 11 H., 269. of frauds, can be proven by parol evidence, and and Herron. If binding on Chalfant and Hercould be enforced by Watters against Chalfant ron, it must also be binding on Watters and his estate. "If a contract is not within the statute of frauds, there is no reason why a purchaser could not be held to pay what he had promised; or, in other words, why the price he undertook to The facts found in this case show a resulting pay is not the measure of damages for his breach trust in favor of Samuel Watters. A resulting trust arises where the title is taken in the name of one person, while the consid eration money is paid in whole or in part by another. Perry on Trusts, vol. 1., 126, 132. Jackman v. Ringland, 4 W. & S., 150. Mercy v. Herrick, 6 Id., 128, 129. When an original verbal agreement between two persons to make a joint purchase is clearly proved, although no part of the hand money was actually paid at the time by him, whose name is not in the articles or deed, yet the subsequent payment of his share in fulfillment of the bargain will relate back to the original agreement, and attach to the land as a resulting trust. Nixon's Appeal, 13 P. F. Smith, 282. Chadwick v. Felt, 11 Casey, 307-8. Mercy v. Herrick, 6 Harris, 129. Where one having an interest in land is induced by the verbal promise of another that he will purchase it for the benefit of the former, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter is such a fraud as will convert the purchaser into a trustee ex maleficio, and he will be compelled to convey according to his verbal agreement. of his contract." Tripp v. Bishop, 6 P. F. Smith, 427. A vendor of lands by parol sale, within the statute of frauds, cannot recover the price from the vendee, because the vendee has no remedy by which he can compel the vendor to convey, and there is therefore no mutuality in the contract. Equity will not enforce a contract by which both parties are not bound. Wilson v. Clark, 1 W. & S., 555. Sands, Herdi & Co. v. Arthur, 3 Norris, 481. Bodine v. Gladding, 9 Harris, 53. ceases. If Samuel Watters' heirs could compel a conveyance of one-eighth of this property, according to his agreement with Chalfant and Herron, there is no reason why his estate should not be compelled to comply with his part of the agreement, and pay for it. Opinion by SHARSWOOD, C. J. Filed December 30, 1882. The affidavits of defense of Chalfant and Herron, to the scire facias on the Watters' mortgage, were rejected by the learned judge when offered in evidence, and we cannot assume that they were considered by him. The statement of them in the opinion, rightly interpreted, is only as to the nature of their claim. There was sufficient to support them in the testimony of Robert Marshall. The main contention here has been as to the competency of this witness and the competency of his evidence. The learned judge below appeared to think that he was interested, Wolfert v. Harrington, 24 P. F. Smith, 311, and and Watters being dead, was not a witness un 5 Norris, 39, 43, 44. Long v. Perdue, 2 Norris, 217. Seachrist's Appeal, 16 P. F. Smith, 240-1. Boynton v. Housler, 23 Id., 458. Beegle v. Wentz, 5 Id., 369. der the Act of 1869, but thought that the objection came too late. It is not necessary to consider whether he was right in this, for we all think that Robert Marshall was a competent |