sum of five hundred twenty-six dollars and fifteen cents, with interest from June 1, 1886, hereby waiving stay of execution, the right of inquisition, and exemption laws. Witness our hands and seals this first day of June, 1886. C. E. White. [Seal.] J. H. Harden. [Seal.] S. B. Harden. [Seal.] John Harden. [Seal.]" When the amicable revival was filed of record, the entries in judgment docket were as follows, viz.:

May 13, 1891, a writ of scire facias was issued on this revived judgment to No. 91, September term, 1891, upon which a verdict and judgment were subsequently obtained. The scire facias recited a judgment obtained by C. E. White against "John Harden. T. T.," inter alia, while no such judgment had ever been obtained. John Holmes obtained a judgment against John Harden, December 4, 1884, which was revived December 9, 1889, to No. 84 Febru

ary term, 1890,-one of the judgments pre

sented for allowance before the auditor. John Holmes also obtained another judgment against John Harden, August 7, 1886, which was revived June 2, 1891, to No. 244, September term, 1891, which judgment, with others obtained subsequently, presented for allowance out of the fund for distribution before the auditor.

was

Rodney A. Mercur and Ulysses Mercur, for appellant. Wm. Maxwell, for appellee.

PER CURIAM. We are clearly of opinion that the lien of the original judgment against S. B. Harden and J. H. Harden was preserved by the revival, as against them and John Harden, terre-tenant. The amicable scire facias described exactly the names of the parties, the term and number of the case, and the date and amount of the judgment as revived, and this is all that is required by the act. The entry on the judgment docket sets out the names of all three of the defendants, one following the other, and all being defendants in the same judgment,-No. 249, September term, 1886, -the same date of entry, and the same amount for each, together with the fact that the proceeding was an amicable sci, fa. One of these defendants was John Harden, the same person against whom the appellant's lien is claimed. By referring to the amicable sci. fa., upon which the judgment was revived, it appears that John Harden is there described as "terre tenant" in the caption of the case which names the parties, and the amicable sci. fa., with confession of judgment contained therein, is signed and sealed by the plaintiff, by both of the original defendants, and by John Harden. The necessary legal meaning of all this is that John Harden confesses judgment for $526.15, in favor of C. E. White, in a proceeding to revive a prior judgment against him as terre-tenant, and the other two parties as original defendants. If any authority is needed to Sustain the lien of a judgment thus revived, it is found both in Mellon's Appeal, 96 Pa. St. 475, and Dietrich's Appeal, 107 Pa. St. 174. Judgment affirined.

OVERSEERS OF POOR OF LOYALSOCK TP. v. OVERSEERS OF POOR OF ELDRED TP.

(Supreme Court of Pennsylvania. April 10, 1893.)

POOR PERSONS-SETTLEMENT.

The settlement of a parent when a child becomes of age continues to be the child's settlement until it acquires a new one in its own right; and though the child, after arriving at the age of 21 years, becomes infirm, and returns to and is supported by the parent, who removes to another town, and there acquires a new settlement, such settlement is not conferred on the child, so as to make the latter town liable for the child's support after the parent's death.

Appeal from court of quarter sessions, Lycoming county; John J. Metzger, Judge. On the petition in a justice's court of J. F. Sweeley and John Pesto, overseers of the poor of the township Loyalsock, Sarah Holmes, a poor person, was ordered removed from the township of Loyalsock to John Lentz, overseers of the poor of Elthe township of Eldred. Henry Kline and dred township, appealed from such order, and on a trial the order was affirmed. The overseers of Eldred appeal. Affirmed. Following is opinion and decree of the court below, (Metzger, J. :)

From

"Sarah Holmes, the pauper, was born on the 18th of October, 1861. About the year 1865 her father moved with his family into Eldred township, where he continued to reside until April 1, 1888, when he went into Loyalsock township, and lived there until his death, which occurred in April, 1891. It is admitted that he had acquired a settlement in Eldred township prior to his removal therefrom, and it is a fact clearly established by the evidence that he bad leased a farm in Eldred township, on which he resided for at least nine years preceding the time of his removal to Loyalsock township. There is therefore no doubt that he had a legal settlement in said township of Eldred as early as 1880. Sarah Holmes, the pauper, arrived at the age of 21 years on the 17th day of October, 1882. At this time she had no mental or physical infirmity which rendered her incapable of taking care of herself. the time she was 19 years of age she worked out a great part of the time among strangers, and received her own wages, which she applied as she pleased. She continued healthy and able to work until about two years after attaining her majority, when she became afflicted with a spinal disease, from which she has never recovered. Since her sickness, and up to the time of her father's death, she lived with him, and was maintained and provided for by him. Before taken sick, although she was working for other people the greater portion of the time, she still continued to call her father's house her home. At the time she took sick she was in the employment of a stranger, but was immediately taken to her father's house, where she remained until his death. The father, having since April 1, 1888, acquired a settlement in Loyalsock township, and the pauper having acquired none in her own right, it is contended by defendants

that she has acquired a settlement in Loyalsock township derivative from her father. This position is undoubtedly correct, if the pauper in this case was not emancipated, or if, when she became of the age of twenty-one years, she was compelled to remain with her father on account of infirmity of body or mind which rendered her incapable of taking care of herself. Washington v. Beaver, 3 Watts & S. 548; Shippen v. Gaines, 17 Pa. St. 38, and numerous other authorities, which wẹ deen unnecessary to cite to establish this principle. But this is not the case before us. The pauper, in this case, was competent, both mentally and physically, of acquiring a settlement when she arrived at the age of twenty-one, and for two years thereafter. It needs no authority to show that the settlement of her parents, when she arrived at the age of twenty-one years, was her settlement, and I hold that that settlement will continue until she acquires another in her own right. Having arrived at the age of twenty-one years, she was no longer under any legal restraint, and no longer dependent on her father, and was at liberty to do anything that might lawfully be done by anybody, and was therefore emancipated. When there is no infirmity of body or mind, the rule is that children become emancipated at the age of twenty-one years. Montoursville Overseers v. Fairfield Overseers, 112 Pa. St. 99, 3 Atl. Rep. 862; Washington v. Beaver, 3 Watts & S. 549; Davidson Tp. v. Moreland Tp., 7 Wkly. Notes Cas. 14; Town of Orford v. Town of Rumney, 3 N. H. 332. The mere fact that a child should continue to live under the same roof with the father does not change this rule. Beaver v. Bare, 104 Pa. St. 58; McCloskey v. Cyphert, 27 Pa. St. 220. These cases sustain the gen. eral principle 'that the emancipation of a child from the control of the parent may be as perfect while living under the same roof as if they were separate.' It is true, these were not pauper cases, but it seems to me it would be applicable to a case of this kind, as well as to any other case where the question of emancipation arises. It is not an uncommon thing for children, whether male or female, to continue to make the house of their father their home when they are out of employment, as long as they remain unmarried, no matter what their ages may be; yet, if they had no mental or bodily infirmity, it would scarcely be contended that they would derive a settlement from their parents in a place where the parents had acquired a settlement subsequent to such children attaining their majority. When a child has once become emancipated from its father's family, it cannot, by its own acts, acquire a settlement where its parents subsequently go to reside. In the case of Springfield v. Wilbraham, 4 Mass. 495, it is ruled that 'legitimate children, when emancipated, are no longer in a condition to derive settlement from their father. When a father ceases to have any control over his children, or any right to their services, it is not easy to devise any good reason why they should not be considered as emancipated, and as no longer having a derivative settlement with the father on his ac

quiring a new settlement.' In Buckland v. Charlemont, 3 Pick. 172, which was a case of one who became non compos mentis after arriving at the age of twenty-one years, it was ruled in such a case that his settlement did not follow the settlement of his father. I have been unable to find any express ruling of this question in Pennsylvania. It seems to me, however, that it ought not to require any ruling. As soon as a child becomes of the age of twenty-one years, if it is not incapacitated, by reason of any physical or mental infirmity, from taking proper care of itself, as we have seen, it is emancipated by the law. It is then competent to acquire a settlement in its own right, because competent to do any act which any other person is lawfully permitted to do. When that age is reached, the parents have no longer any right to impose any legal re straint upon that child, and its remaining under the roof of the parent would be a voluntary act on the child's part, and could not be considered as giving the child a right to acquire derivatively any new settlement acquired by the parents. We therefore conclude that the settlement of the parent, when the child arrives at the age of twenty-one years, if that child is free from mental and bodily infirmity, continues to be its settlement until it acquires a new one in its own right. In the case before us Sarah Holmes was competent, mentally and physically, when she attained to the age aforesaid, and for two years thereafter, to take care of herself, and to have acquired by her own act a settlement; and hence I can see no reason why her subsequent illness, which caused her to be taken back to her father's house. and maintained by him, should enable ber settlement to follow that of her father. She is, therefore, in my opinion, settled in Eldred township. * And now, to

wit, October 24, 1891, it is adjudged that the place of the last legal settlement of Sarah Holmes is in the township of Eldred, and the order of removal is therefore affirmed, at the costs of appellants."

H. T. Ames_and T. H. Hammond, for appellants. J. F. Strieby, for appellees.

PER CURIAM. The decree in this case is affirmed on the opinion of the learned court below.

LAUCKS v. MICHAEL. (Supreme Court of Pennsylvania. April 10, 1893.)

JUDGMENT AS SECURITY FOR NOTE-EFFECT OF RENEWAL.

Where a judgment is given to secure the payment of an accommodation note, the renewal of the note at maturity does not constitute payment, and discharge the lien of the judgment.

Appeal from court of common pleas, Berks county; James Ermentrout, Judge. Action by William B. Laucks against Webster S. Michael. From the decree confirming the report of the auditor, making distribution of the proceeds of property sold on execution, plaintiff appeals. Alfirmed.

The following is the opinion of the court below, (Ermentrout, J.:)

"In re exceptions of W. B. Laucks to auditor's report, distributing proceeds of sheriff's sale upon execution of W. B. Laucks against Webster S. Michael. It is clear that any one seeking any part of the fund realized upon sheriff's sale must do so upon the theory that he is a lien creditor of Webster S. Michael, and upon the further theory that the real estate sold was property in which he had an interest, when their respective liens were on file. For the purpose of determining the merits of the exceptions, there appear in the findings of the auditor two liens of record, viz. (1) A judgment, George E. Haak vs. Webster S. Michael for $1,000, entered December 9, 1891. (2) A judgment, William B. Laucks vs. Webster S. Michael for $3,600, entered December 16, 1891. It is undisputed that, at the period of entry of both these judgments, the defendant, Webster S. Michael, owned the real estate sold. They were, therefore, both liens, and priority of entry gives priority in distribution of proceeds of sale, unless a good, valid, legal reason be given to the contrary. It is alleged the first lien is paid. It appears the judgment was given to secure the payment of an accommodation note drawn by Michael, and indorsed by Haak. The note was not paid at maturity, but was renewed a number of times, and the last renewal remains still unpaid by Michael. Under these facts, because the judgment is absolute on its face, -makes no mention of a promissory note, -counsel for Laucks contends that the lien of the judgment was lost, after it became due, by the renewal of the note as to the junior incumbrance of Laucks. The auditor decided against this contention, and rightly, and the case could well be rested upon his very full and able report. Gault v. McGrath, 32 Pa. St. 392, the mortgage in question was absolute upon its face, but it was shown that it was given as collateral security to secure the payment of notes loaned by the mortgagee to the mortgagor for his accommodation, and the renewals of the said notes, from time to time, until they should all be paid. In the case of Shrewsbury Sav. Inst.'s Appeal, 94 Pa. St. 309, the precise question arose. I. gave a judgment bond to a savings association. The condition of the bond stated the bond was given as collateral security for sundry notes given or drawn by I., or indorsed by him or his firm, and held by the institution.' The notes were renewed from time to time, but there was no agreement that the bond should stand for the renewals. The subsequent judgment creditors contended that the lifting of the old notes by the renewals was a novation, and satisfied the condition of the bond. But the court held that, if the judgment is collateral to the notes, it is also collateral to the debt, for the reason that the notes are but the evidence of the debt, with a promise to pay it. As between the parties to a note, it has never been held that a renewal was payment, unless so accepted and intended, and that the subsequent judgment creditor stands on the foot of

In

his debtor. It may be a hardship, in many cases, for the execution creditor to lose his money, but the lien dockets are open to the inspection of the lender, and the judgment of Haak appeared thereon in full. This question settled against the exceptant, there is nothing further to discuss. No act of the defendant or execution creditor was of any avail to impair the security of the prior lien creditor. Exceptions dismissed. Report confirmed."

E. B. Wiegand, for appellant. Samuel N. Potteiger and Horace A. Yundt, for appellee.

PER CURIAM. As the auditor and court below awarded to the appellant the whole of the fund left after paying remaining for practical consideration was the judgment of Haak, the only question whether Haak's judgment was to be considered as paid because of the renewal of the note, against liability on which the judgment was given as security. On that question we agree entirely with the learned court below, and affirm the final decree, for the reasons stated in the opinion.

HOOVER v. BEECH CREEK R. CO. (Supreme Court of Pennsylvania. April 10, 1893.)

INJURY TO BRAKEMAN-NEGLIGENCE-EVIDENCE. In an action for damages against a railroad company it appeared that an order was telegraphed to the conductor and engineer of the train on which deceased was a brakeman, giving them notice to keep out of the way of a certain train which was following them. The conductor, one of plaintiff's witnesses, testified that it was the usual custom to signal trains approaching from behind at the place where the accident in question happened by going back on the track and placing caps on the rails; that deceased was about to do this, but waited a few moments to fix his fires first, and in that time the collision occurred. Held, that the duty of avoiding a collision rested on the men in charge of deceased's train, and there could be no recovery; for if deceased ought, as brakeman, to have put caps on the rails as a signal, and failed to do so, the collision was the result of his own negligence, and if the conductor or engineer failed to side track the train, or give proper signals, the collision was the result of the negligence of deceased's coemployes.

Appeal from court of common pleas, Lycoming county; E. R. Ikeler, Special Judge.

Action by Auna Alberta Hoover in her own right and for the use of Lydia Elizabeth Hoover and Dottie May Hoover, minor children of Samuel L. Hoover, deceased, against the Beech Creek Railroad Company, to recover damages for the death of deceased, a brakeman, in a colli

sion on defendant's road. From a judgment of nonsuit, plaintiff appeals. Affirmed.

J. J. & G. B. M. Metzger and H. H. & A. F. Martin, for appellant. S. R. Peale and M. E. Olmsted, for appellee.

PER CURIAM. The telegraphic order from the assistant superintendent of the

*

the rights and liabilities of parties in the | case of an exchange or barter of the goods for the note of a third party we need not now consider, for we have concluded that the contract in this case is one of sale. The negotiation was commenced by the appellee, who in his letter of October 21st, said: "If I would purchase a small stock of your lathes. ** would you take a four-months note in settlement?" It seems to us that the plain import of this language indicates that it was the desire and intention of the appellee to buy the goods in contradistinction to giving something in exchange for them, for otherwise why use the word "purchase?" If he intended to make an exchange he should have said so. But when we look at the concluding sentence of appellee's letter of the 24th October, in which the note was transmitted, it appears to us there can be no doubt what was the appellee's understanding at that time. He said: "The balance over the amount you can remit to me as soon as the note is paid." It will be remembered that at that time it was not known to either party exactly how many or what kind of lathes would be ordered, or what the prices for the same would be. The appellee had limited his order to "about the value of $800," and therefore when he sent the note for $945, and asked for the difference to be remitted to him when the note was paid, he could not have understood he was parting with the note in exchange for the goods. This certainly has not the appearance of an exchange, but, on the contrary, would indicate what we have already said, that the transaction we are considering was a sale.

Was the note given and received in full payment? As the case now stands, the answer to this question must be found in the same written evidence which establishes the contract, for there is no other proof on the subject before us. If nothing appeared or could be ascertained from the contract except that the note in question was received in payment for the goods, it might well be conclusively presumed that such was the intention of the parties to the contract. Tobey v. Barber, 2 Amer. Lead. Cas. 299; Noel v. Murray, 1 Duer, 385; 18 Amer. & Eng. Enc. Law, 182. But here we have a different case presented. It appears that the appellant was to keep the note until maturity, then collect the proceeds thereof, and, having paid itself for the goods, the balance was to be remitted to the appellee. This part of the transaction, it seems to us, is very significant, and would seem to be a conclusive indication that the note was not intended to be at the risk of the appellant; for, according to all authority, and reason as well, if the vendor takes the note as absolute payment, it is his property, and he may dis pose of it as he would any other property owned by him. But here it appears that, so far from accepting the note absolutely. the agreement was that the appellant was to collect the proceeds, retain a portion thereof, and the balance was to be the property of the appellee. But it was also urged that the note was offered and accepted "in settlement" for the goods purchased by the appellee, and that it was

The

placed to his credit by the appellant; but we do not think that the use of the word "settlement," nor the fact of the credit, are together sufficient to overcome the force of the fact on which we have based the inference already drawn. It will be noticed that the note was not given or received in payment, but the appellee offers it in settlement, and the offer is accepted in general terms, without saying whether it is accepted in payment or in settlement. But, assuming that the note was accepted as offered, that is, "in settlement, "-the use of this term in lieu of "payment" may be considered as another indication of the intention of the parties, especially in view of the arrangement we have already mentioned, that the appellant was to retain only a part, and remit the balance of the proceeds of the note to the appellee. Nor do we think that the fact of crediting the amount of the note to the account of the appellee can have any controlling effect, under the circumstances of this case. The case of Phelan v. Crosby, 2 Gill, 470, was cited to show that when an unindorsed note of a third person is placed to the credit of the consignee of the goods sued for, and the balance receipted for as paid in cash, the note must be considered as having been taken in payment, in the same sense that the cash was payment. There is no cash payment in the case before us, and, of course, there can be no argument based upon the combined effect of the cash payment and the credit of the note. language quoted to support the view of the appellee is not that of the court of appeals, but will be found in the dissenting opinion of the late Judge Magruder, who thought the judgment in that case should be reversed; but the majority of the court, while filing no opinion, affirmed the judgment, and therefore held in accordance with the ruling of the trial court in granting the defendant's first prayer,-that there must be evidence that the note was received in payment, and without the right of recourse to the defendant. However, without regard to what was said in Phelan v. Croshy as to the effect of giving credit in that case, we do not think the fact of crediting the note here, whether considered alone or in connection with the other evidence of the contract, is conclusive proof that the note was taken as absolute payment. Of course, it will not be contended that, whenever a merchant credits bis debtor's account with the amount of a note, thereupon the debt is paid. Such a construction of a very common entry in bookkeeping would be novel, and would often result in supplying debtors with an easy as well as “a new way to pay old debts." There being nothing, therefore, in the written evidence of the contract to prove that the note was to be taken and was taken as absolute payment, on whom does the burden rest to show that fact, if it be a fact? The transaction in this case was, as we have said, a sale, and not an exchange. The appellant sued in assumpsit on the common counts for goods sold and delivered, and, having proved its case, it was admitted by the defendant that the goods had been delivered to him as charged; his defense being