was amended by making unknown owner the defendant. Held, that the amendment was authorized by the act. The lien was not indexed against unknown owner as required by the act. Held, that the omission to index did not affect the purchaser at the sheriff's sale. The sale on the lien was procured to be made by E., the husband of the devisee for life of the property, for the purpose of divesting a charge thereon for the support of F., an imbecile, and the property was bid in by Z. for E. Z. afterwards conveyed it to E. Held, that the property in E.'s hands was subject to the lien of the charge for the support of F. E. executed a mortgage thereon to P., who assigned it to B. B. foreclosed the mortgage and purchased the property at sheriff's sale. Held, that there was sufficient notice from the records to put B. on inquiry as to the character of the sale on the municipal lien, and that he therefore held the property subject to the charge for the support of F. Mary A. Garber in her last will and testament, probated the 22d day of May, 1867, devised three lots of ground in the city of Pittsburgh to her daughter, Mary E. Bostwick, for life, with remainder to her six children, and charged the premises with the support and maintenance of Frederick Bentz, a son of the testatrix, if by reason of sickness, bodily or mental infirmity, he should at any time be unable to work. The city of Pittsburgh, on the 22d of March. 1875, filed a lien against these lots for $203.16, the amount assessed thereon for the grading, etc., of Bates alley, the work having been completed on the 27th day of September, 1874. This lien was filed against E. Bostwick, the husband of the devisee for life, as the owner. On the 17th of July, 1875, the record was amended by making unknown owners parties defendant. The cause then proceeded to judgment against unknown owner, and the lots were sold on a levari facias issued thereon, on the 8th day of October, 1875, to Jacob W. Zahniser, for $1,100. By deed dated and acknowledged on the 25th day of October, 1875, Zahniser conveyed them to Edmund Bostwick. He on the 19th of November, 1875, his wife, Mary Elizabeth Bostwick, the devisee for life, joining therein, executed a mortgage thereon in favor of Isaac M. Pennock to secure the payment of $7,000 in three years from the date thereof. Mr. Pennock on the 24th day of November, 1875, assigned this mortgage to George S. Bryan. Mr. Bryan foreclosed this mortgage and purchased the property on the 15th day of September, 1877, and is now in possession of it. Frederick Bentz has been living for the past twelve years with Joel Skellin, administrator c. t. a. of the testator's estate, who files this petition, alleging that Bentz has been unable by reason, both of mental and bodily infirmity, to work sufficient to support himself, and that there is due the petitioner for his support $1,650, and praying for an order for the sale of the premises for the payment thereof. In answer to this petition George S. Bryan, the respondent, claims that, the charge on these lots for the support of Bentz was divested by the sale on the municipal lien. Opinion by OVER, J. Filed April 29, 1882. The charge on these lots for the support of Frederick Bentz was expressly created to run with the land and its value was incapable of being definitely ascertained. It was therefore a fixed lien, and unless a distinction is to be made because the lots were sold on a municipal lien and not on a judgment in personam, it was not divested by the sale: Heister v. Green, 48 Pa. St., 102. The Act of January 6, 1864, Slagle's Digest, p. 179, Sec. 25, under which Bates alley was graded and paved, provides "that the term owner, as used in the act, shall be construed to mean all individuals * * * having any title or interest in the properties assessed." And the Act of May 16, 1857, Slagle's Digest, p. 191, Sec. 13, provides that "all taxes, rates and levies which may hereafter be lawfully imposed or assessed by authority of said city, on any real estate therein, shall be and they are hereby declared to be a lien thereon; and that the said lien shall have priority.to, and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate may become charged with, or liable to, from and after the passing of this act." These Acts of Assembly certainly comtemplate a proceeding in rem against the property itself. The improvement is made for the benefit of the property, and the object is to make all the estates into which it may be subdivided and all interests therein liable to pay for the improvement and subject to the lien therefor and the lien itself prior to all other liens and charges thereon: Salter v. Reed, 15 Pa. St., 263. It was held in Perry v. Brinton, 13 Pa. St., 202, that a sale on a municipal lien did not divest the lien of a prior mortgage. But that decision was based solely on the fact that there was an Act of Assembly preserving the lien of the mortgage. In this case there is no Act of Assembly to preserve the lien. It follows then that the municipal lien was a prior lien on these lots to the charge for the support of Frederick Bentz, and that if the proper proceedings were held thereon that the charge for his support was divested by the sheriff's sale: Mitchell v. Steinmetz, 97 Pa. St., 255. The lien was filed against a party as the owner who had no title to the property, and as under the 20th section of the act a sale only conveyed the interests of those named as defendants, it became necessary to amend the lien. This was done and an unknown owner made the defendant. The question now arises as to whether this amendment was authorized by the act. The 29th section provides for adding the names of defendants at any time after the lien has been filed and for the service of a scire facias on them before judgment can be entered. The 30th section provides that when the owner is unknown the lien shall be filed against unknown owner and indexed accordingly and for the publication of the scire facias, and that the sale shall have the same effect as if the real owner had been named. This section creates a new class of defendants, and instead of personal service, which cannot be made, provides for the publication of the writ. These two sections are to be construed together, and it seems clear in so construing them that the amendment was authorized by the act. ! title to his wife's real estate by purchasing the same at a sheriff's sale made on a judgment entered against her vendor prior to her purchase. Purchasers from the husband would not, in examining his title, receive any notice of the fraud practiced on the wife, as the deed to her for the property was subsequent to the lien on which it was sold, it was not in the line of the title. In this case, in the direct line of the title, the records showed that this property was devised to Mrs. Bostwick for life, with remainder to her children, subject to a charge for the support of an imbecile. That the property, which was afterwards mortgaged for $7,000, was allowed to be sold on a municipal claim of $203.16. That the sale was made without notice to the children or the imbecile. That it was reconveyed by the purchaser to the husband of the life-tenant, who, with his wife, mortgages the same to Mr. Pennock, a broker, for $7,000. The knowledge of these facts alone would seem to justify the conclusion that Bostwick All the requirements of the 30th section were procured the sale to be had on the municipal complied with except that the lien was not in- lien for the purpose merely of divesting the indexed against unknown owner. But this omis-terest of the children and the imbecile in the sion would not affect the purchaser at the sheriff's sale, as the indexing was no doubt required for the protection of subsequent purchasers. The parties, interested being notified by the publication of the writ. It appears frem the testimony that Edmund Bostwick, the husband of the devisee for life, procured these lots to be sold on the municipal lien for the purpose of acquiring the title and borrowing money thereon, and that they were purchased by Zahniser for him. If the title were still in him, there is no doubt that the charge for the support of Frederick Bentz could be enforced against the property. But the respondent is a purchaser for value of the property, without notice of the fraudulent character of the sale, and he therefore holds the same divested of the charge for the support of Frederick Bentz. In re exceptions to decreee. Opinion by OVER, J. Filed August 30, 1882. The conclusion arrived at on the first consideration of this case, that the respondent, George S. Bryan, was a purchaser for value, without notice of the fraudulent character of the sheriff's sale on the municipal lien, was based principally on the authority of Swisshelm's Appeal. On further reflection, however, I think that this case should be distinguished from that. In that case Mrs. Swisshelm's husband acquired property. But even if it would not, it certainly became the duty of Mr. Bryan, having notice of these facts from the record, to inquire as to the character of this sale. Had he done so, and exercised ordinary diligence and understanding in pursuing his inquiries, there can be but little doubt he would have discovered its fraudulent character. The respondent then is not a purchaser without notice of the fraud practiced on this imbecile: Hill v. Eply, 31 Pa. St., 336. He does not, therefore, hold the property divested of the charge for his support. It appears from the testimony of the petitioner that the boarding of the imbecile was worth two dollars per week, his clothing fifty per year and washing and mending about ten dollars per year, making in all one hundred and fifty-four dollars per year. That until about five years since his work was worth three dollars per week. Since that time the petitioner has not lived on a farm and his services have not been of much value to him. The testimony of the petitioner leads to the conclusion that an allowance of one hundred and fifty dollars per year for five years, being up to this date, would be reasonable compensation for the maintenance of Frederick Bentz during that time by the petitioner. For petitioner, John Barton, Esq. MISREPRESENTATIONS LEADING TO CON- of material fact has been made, whether inten TRACTS. [FROM THE LONDON LAW TIMES.] We reported not long ago an interesting case on specific performance, decided by the Court of Appeal at Lincoln's inn, which arose out of an advertisement that appeared in our columns two years since, and the result of which should be to induce advertisers to be more careful as to the character of the statements which they set before the public: Redgrave v. Hurd, 45 L. T. Rep., N. S., 485. It will also, no doubt, be frequently referred to for the valuable statement by the Master of the Rolls of the law as to the avoidance of contracts which have been entered into after representations which are inaccurate, though not, strictly speaking, fraudulent. The material part of the advertisement was as follows: LAW PARTNERSHIP.-An elderly solicitor of moderate practice, with extensive connection in a very populous town in a Midland county, contemplates shortly retiring, and having no successor, would first take as partner an efficient lawyer and advocate, about forty, who would not object to purchase advertiser's suburban residence, suitable for a family, value £1,600. Other tionally or not, by way of inducement to enter Mr. Justice FRY, in his judgment, referred to the case of Attwood v. Small, in the House of Lords, 6 Cl. & Fin, 232, as supporting the view which he took, that the defendant, having had the opportunity of testing the statements made to him could not, in the absence of fraud, avail himself of their incorrectness. The Master of the Rolls, in his judgment, showed that this case did not bear out the proposition deduced from it by the learned judge, and which, it may be observed, is also contained in the head-note The defendant in the action answered the to the report. That case arose out of the sale advertisement, and according to his own evi- by the appellant Attwood to the British Iron dence (though his was contradicted by the plain- Company of a valuable iron and coal mining tiff), he was informed by the advertiser, at an property in Staffordshire for the sum of £550,000, interview which he had with him, that his and was remarkable alike for the great length practice had amounted to from 3007 to 4007 a of time which it occupied-being heard for fortyyear. Accounts were produced in reply to a six days in the House of Lords alone-by the request for further particulars, but they only numerous points of practice and pleading which showed a sum of 2007 a year as the outside gross it involved, and by the difference of opinion earnings of the practice. The defendant ac- between the learned lords who took part in the cordingly asked by a letter (to which, however, hearing of it. In the result, Lords LYNDHURST Mr. Justice FRY gave a somewhat different con- and WYNFORD were of opinion that a case of struction) how this discrepancy was accounted fraudulent misstatement had been made out for, and the reply to this inquiry, given at a against the vendor, such as to disentitle him to second interview, was a reference to a mass of specific performance of the contract. On the papers which, according to the plaintiff, con- other hand, Lords COTTENHAM, BROUGHAM tained the details of work done which had not and DEVON were of opinion that specific peryet gone into the accounts. The defendant was formance must be decreed notwithstanding that satisfied with this explanation, and signed the some of the statements made by the plaintiff contract; but it proved that the papers in ques- proved to be incorrect; but the reasons assigned tion did not represent more than 57 or 67 beyond, by them for this conclusion were, as the Master that which had been shown in the accounts. of the Rolls pointed out, somewhat different. He afterwards declined to complete the pur- However, his lordship was of opinion that they chase; and Mr. Justice FRY, before whom the ¦ might be summed up in these three: (1) that abandoned brick yards, was uneven, and in one portion of it there was a well of water about six feet in diameter and twelve feet deep. This well was constructed originally for purposes of drainage, as well as to supply water for brick there was no fraud, (2) that the company were aware of the facts, and (3) that they did not rely upon the statements of the vendor, but solely upon their own investigations. His lordship laid down the law resulting from that case, and illustrated in many of the cases on misstate-making. The field was not enclosed, nor was ment in prospectuses substantially as we have there any guard around the well. The sides of stated it above. He also referred to the state- the latter were sloping at the top. There were ment of the law on the subject made by Lord no bushes about it to conceal it from the eye, CAIRNS n the case of Reese River Silver Min- and its situation was such that no one would be ing Co. v. Smith, L. Rep., 4 E. & I. App., 64: likely to walk into it, unless in the darkness of "If persons take upon themselves to make as- the night. It was over one hundred feet from sertions as to which they are ignorant whether the public highway, and about three hundred they are true or untrue, they must, in a civil yards from the nearest house. There was evipoint of view, be held as responsible as if they dence of a path or paths across the field, but not had asserted that which they knew to be un- directly to the well, and that it was used to some true." This, as was observed by the Master of extent as a place of resort by children and adults. the Rolls, is a somewhat wider doctrine than About four o'clock on the afternoon of Friday, has been laid down in the cases at common law, July 9, 1880, the plaintiff's son, a boy of seven but is now, of course, of universal application. years and ten months of age, was found drowned in this well. According to the testimony, his death must have occurred between one and four o'clock P. M. There was nothing to throw any light upon the circumstances connected with his sad fate beyond what I have thus briefly stated. Supreme Court, Penn’a. GILLESPIE et al. v. MCGOWAN. There is no obligation upon the owner of a vacant lot or unused brick yard to fence it, so far as his duty to passers-by is concerned. Where a boy nearly eight years of age was drowned in a well, over one-hundred feet from the highway, dug in The father of the boy brought this action in the court below to recover damages or compensation for his death; the ground of the action an open field, the owners thereof cannot be held to have being that the owners of the field were guilty of been guilty of negligence in permitting the well to re-negligence in permitting the well to remain main without a guard. Hydraulic Works Co. v. Orr, 2 Norris, 332, is authority only for its own facts. It was not intended to assert the doctrine that "a child cannot be treated as a trespasser or wrongdoer," and so far as it appears to sanction such a principle, it must be overruled. Where the owner of land makes an excavation thereon at such a distance from the highway that a person would knowingly trespass before any injury could possibly happen, the owner cannot be made to respond in damages in the event of any one falling into the excavation and being injured. A child of tender years cannot be charged with contribu tory negligence. "But this principle cannot be applied as a rule of law in all cases to children nearly eight years of age." Such cases should be referred to the jury; it is error to rule them as questions of law. Hydraulic Works Co. v. Orr, 2 Norris, 332, commented upon and distinguished. Gramlich v. Wurst, 5 Norris, followed. without a fence or guard of some kind to protect it. The jury rendered a verdict in favor of the plaintiff, upon which the court below entered a judgment against the defendants, who have brought the record into this court by a writ of error for review. Upon the trial in the court below, the learned judge instructed the jury as follows (see first and second assignments): "I say to you that a child cannot be treated as a trespasser or wrongdoer, and even trespassers may have rights when injuries are negligently inflicted upon them. The true principle which must be applied to a case of this kind is this, the owner of premises in the neighborhood of a populous city and opening on a public highway, must so use them as to protect those who stray upon them Error to the Court of Common Pleas, No. 3, and are accidentally injured." of Philadelphia county. This ruling was based upon Hydraulic Works Opinion by PAXSON, J. Filed April 24, 1882. Co. v. Orr, 2 Norris, 332. The language used The defendants below were the owners of a was not that of this court, yet it is only fair to field near Long lane, in the southern part of the learned and able president of the court bethe city of Philadelphia. This field had form-low to say that it is substantially the ruling of erly been used as a brick yard, but the brick clay having been exhausted, it had long since ceased to be used for such purpose and was lying out in commons. The surface, as is usual in the learned judge who tried the case in 2 Norris, and which was affirmed here. That case, however, was decided upon its own peculiar circumstances. The Hydraulic Works Company Wurst, 5 Norris, 74, in which it was held that "where the owner of land in the exercise of lawful dominion over it, makes an excavation thereon, which is such a distance from the public highway that the person falling into it would be a trespasser upon the land before reaching it, the owner is not liable for an injury thus sustained." In that case the deceased, during a dark night, fell into an excavation made for the construction of a vault, upon a lot fronting on one of the public streets of the city of Philadel maintained upon its premises what this court designated as a dangerous and deadly trap, weighing over eight hundred pounds, and liable to fall at any moment and "crush children beneath it like mice in a dead fall." It was in the heart of the city, close to a public highway, and the access to it frequently left open; and it was, moreover, so constructed as not to give any indication of its danger. It was to such a structure, so situated, that the learned judge who tried that case below applied the language referred to. It is also to be noticed that the opinion in Hy-phia. The excavation was within eighty feet draulic Works Co. v. Orr makes no reference to of the street and was unguarded; but the court the assignments of error, and contains no au- held the owner was not liable. The well estabthorities in support of it. What this court lished principle in such cases is that "where an meant to decide in that case was, that a person excavation is made adjoining a public way, so who maintains such a dangerous trap, close to a that a person walking on it might, by making public highway in the heart of a large city, a false step or being affected with sudden giddimight be liable to a person injured thereby, ness, fall into it, it is reasonable that the person although such person were a child of six years making such excavation should be liable for of age, trespassing upon the premises, and the the consequences. But when the excavation is familiar principle was invoked that "one may made at some distance from the way, and the not justifiably, or even excusably, place a dan- person falling into it would be a trespasser upon gerous pitfall, a wolf trap or a spring gun, pur- the defendant's land before he reached it, the posely to catch even willful trespassers poaching case seems to be different:" Hardcastle v. The upon his grounds." Hydraulic Works Co. v. South Yorkshire Railway Co., 4 Hurl. & N., 67; Orr is authority only for its own facts. It was Hounsell v. Smith, 7 C. B. N. S., 731. The same not intended to assert the doctrine that "a child doctrine was asserted with much force by Chief cannot be treated as a trespasser or wrongdoer;" | Justice GIBSON, in Knight v. Abert, 6 Barr, 472, and so far as it appears to sanction such a princi- where he said: "A man must use his property ple, it must be considered as overruled. To ap- so as not to incommode his neighbor; but the ply such a doctrine to a boy lacking but two maxim extends only to neighbors who do not months of eight years of age would overturn the interfere with it or enter upon it. He who law as it has existed in England and in this suffers his cattle to go at large takes upon himcountry for two hundred years. It needs but self the risks incident to it. If it were not so, to turn to as familiar an authority as Blackstone to see that a child of this age is liable for his torts, and may be punished for his crimes. It is true, the law properly holds that a child of tender years shall not be charged with contributory negligence. But this principle cannot be applied as a rule of law in all cases to children nearly eight years of age. Much may depend upon the character of the injury, the circum-378; Gillis v. The Penn'a Railroad Co., 9 P. F. stances under which it occurred, and the size, intelligence and maturity of the child. In such cases a jury must be allowed to pass upon the question of contributory negligence; it is error to rule it as a question of law. a proprietor could not sink a well or a saw pit, dig a ditch or a mill-race, or open a stone quarry or a mine hole on his own Ihnd, except at the risk of being made liable for consequential damages from it, which would be a most unreasonable restriction of his enjoyment." This principle is further sustained by Philadelphia & Reading Railroad Co. v. Hummell, 8 Wright, Smith, 129; Cauley v. P., C. & St. L. R. Co., 29 It is settled by abundant authority that to enable a trespasser to recover for an injury he must do more than show negligence. It must Nor do we assent to the broad proposition that "the owner of premises in the neighbor-appear there was a wanton or intentional injury hood of a populous city, and opening on a public highway, must so use them to protect those who stray upon them and are accidentally injured." This doctrine rests chiefly upon the case above referred to, which was not intended to decide any such principle, and is in direct conflict with the recent well considered case of Gramlich v. inflicted on him by the owner. It is sufficient to refer to Gillis v. The Railroad Co., supra, where the subject is discussed by the present Chief Justice, and many of the authorities referred to. In Hydraulic Works Co. v. Orr there was a recklessness that may be said to partake of the nature of wantonness, and it is only upon |