the question of the parties meant to be designated thereby is one of procedure according to the law of the place where suit is brought. Pritchard v. Norton and Glenn v. Marbury, supra. In Pennsylvania the term "legal representatives" means "executors" and "administrators." It is true that if the subject-matter or the context shows that the words are used in a different sense, whether in a statute or a contract, the courts will give them the meaning intended. Thus, they may mean next of kin (Ralston v. Waln, 44 Pa. St. 279), or, if land be the subject, they may be construed to refer to heirs, devisees, or alienees (Dunrow v. Walker, 2 Dall. 205; Ware v. Fisher, 2 Yeates, 578; Cochran v. Cochran, 127 Pa. St. 486, 490, 17 Atl. 981). But "exceptio probat regulam," and in the absence of such exceptional circumstances the reasoning of all the cases shows that the settled meaning is administrators or executors. There are no such exceptional circumstances in the present case. The action is not contractual in its origin, but is for a statutory penalty. Osborn v. Bank, 154 Pa. St. 134, 26 Atl. 289. The enforcement of it is a personal privilege or right of the party aggrieved. He could not be compelled by his creditors to bring an action to enforce it, nor does any right to do so pass to the assignee for their benefit. It

is very similar to the right, under our act of 1858, to recover usurious interest paid. The action in that case is personal to the debtor paying, and cannot be enforced by creditors, or for their benefit, unless the usury was contracted for and paid with the express intent to hinder or defraud the creditors. Lenig's Appeal, 93 Pa. St. 301; Stayton v. Riddle, 114 Pa. St. 464, 7 Atl. 72. Yet the right of action in that case is contractual, in that it is a statutory right to rescind a contract in part, even after it is executed, and is not nearly so penal in its nature as the right under the act of congress. We are of opinion, therefore, that the right of action under the act of congress is personal to the debtor, and that an assignee for the benefit of creditors is not his "legal representative," within the meaning of the act. This decision is not necessarily in conflict with Bank v. Overholt, 96 Pa. St. 327, as it was there held that the right of action passed to an assignee in bankruptcy. This officer, like a receiver, as already said, derives his powers from the statute and the decree appointing him, and stands on a different footing from a voluntary assignee for the benefit of creditors. It was said in that case that the decisions of the federal courts were conflicting, and it is proper to say now that in view of the subsequent trend of opinion in those courts upon the national banking act, even in the absence of an authoritative settlement of the question by the supreme court of the United States, it may be necessary to reconsider the point decided in Bank v. Overholt. But that is not now before us.

3. The second special finding by the referees is not clearly expressed, but appears to

be based on the view that the charge of interest in excess of the legal rate, in making renewals of the notes, was equivalent to pay. ment in cash. This was also clear error. The act of congress draws a distinct line between reserving or charging excessive interest, and receiving it. In the former case the entire interest is forfeited, and no part of it can be recovered, but that is the extent of the penalty. In the latter case the bank is liable to a penalty of double the amount of the usurious interest, but only to the party who has actually paid it. If this were not the case, as was said by the chief justice in Kearney v. Bank, 129 Pa. St. 577, 18 Atl. 598, "the penalty might be recovered without the payment of either principal or interest." This is the uniform rule of our own cases, and of the supreme court of the United States. Brown v. Bank, 72 Pa. St. 209; Kearney v. Bank, 129 Pa. St. 577, 18 Atl. 598; Barnet v. Bank, 98 U. S. 555. Judgment affirmed.

In an action upon certain acceptances, an affidavit of defense, alleging "that the drafts and bills of exchange upon which this suit is brought are renewals of other drafts and bills of exchange of like amounts, payment of all of which was secured to plaintiff by a certain mortgage," and that "the amount of said mortgage and judgment thereon is sufficient to fully cover the entire amount of all notes and acceptances held" by plaintiff against defendant, and "that plaintiff has in manner aforesaid received payment in full of the instruments upon which this action is founded,"-is sufficient, and was not open to the objection that it was a mere statement of defendant's conclusions from facts not disclosed.

Appeal from court of common pleas, Warren county.

Action by Warren National Bank against Seneca Oil Works, Limited, on certain bills and notes. From the judgment rendered, defendant appeals. Reversed.

W. D. Hinckley and W. E. Rice, for appellant. W. D. Brown and D. I. Ball, for appellee.

STERRETT, C. J. It is undoubtedly true, as a general proposition, that "a mere statement of the defendant's conclusion" "from facts not disclosed," is unavailable as part of his affidavit of defense; but in determining whether any particular averment is of that character or not due regard must be had to all the averments contained in the affidavit, and to the further consideration that such affidavits are not required to be framed with the technical accuracy of formal pleadings, and should not, therefore, be subjected to the same severe scrutiny. All that is required in

The

approved and filed, and viewers were appointed to assess his damages for the land taken and appropriated to railroad purposes, Fischer's title to the land was divested, and his only remedy was upon the bond, in connection with the statutory remedy for assessment and collection of damages. Fries v. Mining Co., 85 Pa. St. 73; Hoffman's Appeal, 118 Pa. St. 512, 12 Atl. 57; Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co., 141 Pa. St. 407, 21 Atl. 645. As was said in Hoffman's Appeal, supra: "When a sufficient bond, with sureties, approved by the court, has been given, the company acquires as clear and perfect right to the easement as if it had paid therefor in cash. The landowner's remedy is upon the bond, in connection with the statutory provisions for assessment and collection of damages." These are, as it were, substituted for the land, and to them alone the owner must look for ! his constitutional compensation. The issue in the condemnation proceedings appears to have been twice tried. On the last trial, after plaintiff had closed his case, the defendants offered to show that they had entered upon the land in question, and constructed their tracks, with the consent of prior owners, predecessors of the plaintiff in title, etc. learned judge who specially presided at the trial excluded the offer on the ground that defendants were estopped by averments in the petition for approval of the bond and appointment of viewers, and their subsequent conduct; but he permitted them to withdraw the petition and bond, and to discontinue all proceedings, upon payment of costs, and filing an affidavit that the bond and petition were filed under a misapprehension of the facts, and in ignorance of their rights in the premises. This action appears to have been taken without any hearing or proof establishing the truth of the allegations contained in the affidavit, and without affording plaintiff any opportunity of showing that they were unfounded in fact. But, aside from the lack of proof to sustain the averments contained in defendants' affidavit, etc., we think the learned trial judge erred in making the order complained of. It was unwarranted by any act of assembly, or by any of our rulings in the class of cases to which this belongs. As shown by the cases above cited, the effect of the proceedings deliberately instituted by one of the defendants, including the approval and filing of the bond, appointment of viewers, etc., was to divest plaintiff's right to the possession of the land taken, and remit him to his claim for compensation, under the constitution, secured by the bond, etc. Not only had a divestiture of plaintiff's right of possession been effected, but, after the approval and filing of the bond, defendants were in the actual and rightful possession of the land in question. Under all our decisions, it was then too late to discontinue the proceedings. Wood v. State Hospital, 164 Pa. St. 159, 30 Atl. 237;

Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co., 141 Pa. St. 407, 21 Atl. 645, and cases there cited. It follows from what has been said that the order complained of was erroneously made, and should, therefore, be reversed and wholly set aside. It is accordingly adjudged and decreed that the order or decree of court below permitting the withdrawal of the petition and bond, and authorizing the discontinuance of the proceedings for assessment of plaintiff's damages, etc., be, and the same is hereby, reversed and set aside, and that the said proceedings be fully reinstated, with a procedendo; and it is further ordered that all the costs, including the costs of this appeal, be paid by the defendants.

FUNK v. ELECTRIC TRACTION CO. OF

PHILADELPHIA.

(Supreme Court of Pennsylvania. May 25, 1896.)

STREET CARS-COLLISION WITH CHILD-NEgliGENCE-PROXIMATE CAUSE.

A boy running from a cross street onto a street on which there was a car line, continued running across the latter street diagonally below the crossing till he ran into the side of a fast approaching electric car, or was struck by the corner of it. Held, the accident was caused by his sudden and unexpected act, which could not be guarded against; and therefore the company was not liable.

Appeal from court of common pleas, Philadelphia county.

Action by Samuel Funk, by his father and next friend, Harry Funk, against the Electric Traction Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Thomas Diehl and John G. Johnson, for appellant. J. Howard Gendell, for appellee.

GREEN, J. A compulsory nonsuit having been entered in the court below, there is no testimony on the record except that which was presented by the plaintiff. The injury was occasioned by a collision of the plaintiff and the defendant's car. None of the testimony locates the plaintiff on the track in front of the car prior to or at the time of the accident, but the whole of it establishes the fact of the collision; the detail of circumstances differing somewhat as it came from the different witnesses. The plaintiff was at that time very nearly 13 years of age. His account of the accident is very meager, and is comprised in a single sentence: "I ran up Morgan street until I got near the corner, and I kind of looked down, and I never saw the car, and I tried to cross the same as any other boy, and I was struck." He added, “I didn't know anything until I woke up in the hospital." Morgan street runs east and west below Vine street, between Ninth and Tenth streets. The car was going down Tenth street, and the boy was going along the south

side of Morgan street from Ninth to Tenth. He was going to a grocery store on the west side of Tenth street, a few doors from the corner, and he attempted to cross Tenth street in a diagonal direction from the opposite corner, and not at the street crossing. He says he was running up Morgan street as he approached the corner of Tenth. The witness Hobart testified that he saw the boy "running from Morgan street in a diagonal direction, and the car came very fast, and struck the boy, and knocked him down the street." The same witness said on cross-examination that the boy was struck by the front part of the car, he supposed it was the dasher. The witness Callahan said the boy "came running out of Morgan street when the car was going this way; # * * and the first thing I knew I saw the boy going under the car. Q. And he ran right on without stopping; ran on diagonally across the street towards the southwest? A. Yes, sir. Q. Running pretty fast? A. Yes, sir, he was." The witness McCune said: "I was standing on the corner of Tenth and Morgan, and seen the boy coming running out of Morgan street slanting like. I saw a car coming down at a pretty good rate of speed, and the boy got right even with the car, and the car struck him, and knocked him down, and he went under the front dasher, and he commenced rolling around." The same witness on crossexamination said: "Q. Did you see him actually struck by the car? A. Yes, sir; struck by the front part of the car. Q. You saw the car in the act of striking him, did you? A. Yes, sir; I saw the both of them come together. He goes down, and he commences to roll until he got to 237, and then the car went over him. Q. He struck the side of the car? A. He struck the pole in the front of the car. There is a pole that goes up this way to keep up the roof. Q. And he struck the corner of the car? A. Yes, sir." The witness Stewart said: "I was standing at my doorstep at 2311⁄2 North Tenth street, and I was looking out the street, and I seen this boy. I do not know what direction he came from, but he ran cater-cornered across the street towards Silcox's grocery store. At that time a car came down at a rapid rate, and struck him, and he rolled three times, and then it went over him." Another witness (Brown) said: "When I saw this young boy, he was coming across from Morgan street, kind of cater-cornered, and this car was coming down at a pretty good gait, and when the boy started he ran off towards Silcox's. The boy started to run across, and when I seen him the dasher of the car had struck him and he was underneath the car, and it turned him over and over three times." The only other witness who saw the actual collision (McNamee) said: "The boy was turning out of Morgan street cater-cornered and the car struck him on the corner of the car toward the east." This was the whole

of the testimony as to the actual collision. It proves affirmatively that the boy was running across the street, not at the crossing, at the moment he was struck; that he continued running until he suddenly came in contact with the car, and that either he struck the car, or was so close to it that the car struck him. It is not probable that he was on the track in front of the car, as none of the testimony places him there; but, whether he was or not, he could not recover under all our decisions upon that subject. The present case is quite similar in its leading facts to Chilton v. Traction Co., 152 Pa. St. 425, 25 Atl. 606. The plaintiff was a child about 51⁄2 years old, who ran suddenly against the side of a passenger railway car, and was injured. Paxson, C. J., delivering the opinion, said: "We have, then, the case of a boy who unexpectedly, and without any warning, runs from the pavement against a moving car passing at the time. The gripman saw the child plainly on the pavement before he put on his grip to go ahead fast. The child turned immediately, and ran out into the street, and, for anything that appears, before the car could be stopped, the accident occurred." In the case of Railroad Co. v. Spearen, 47 Pa. St. 300, a child five years of age attempted to cross the track immediately in front of an approaching locomotive, and was injured. We held there was no right of recovery, although there was conflicting proof as to whether the whistle was blown. Agnew, J., said in the opinion: "Upon the undisputed facts, the case is simply one of a little, thoughtless child running suddenly to cross before an engine, at a place where the engineer would not expect it, and being knocked down and injured before the engine could be ordinarily stopped. * Under these facts it is very clear that, being where she had no right to be, and darting ahead before the engine, had she been an adult of discretion, there could be no right of recovery. * The act of the child being the immediate cause of her own injury, it is not the remote negligence of the company we must look to, but the proximate; that is, the conduct of the engineer upon the engine at the time of the injury. Hence the omission to whistle before crossing, or the relatively unsafe distance between the engine and the train before it, cannot determine the case. They did not contribute to the accident, and are no part of the company's neglect of duty to this particular party under the eircumstances. The injury was not at the crossing, but below it, where the plaintiff had no right to be, and where there was no duty upon the engineer to suppose she would be. 串 * She suddenly ran upon the track, and was struck just as she reached it. No time was left to those upon the engine to guard against the injury. The suddenness, shortness of time, and unexpectedness of a child's appearance before the en

gine made it exceedingly difficult, perhaps impossible, to avoid the injury." So in the case at bar it was not the speed of the car that caused the injury, but the sudden and unexpected act of the plaintiff in running against the car, or immediately in front of the car, if such was the fact, that occasioned the accident. There was no opportunity to guard against it, and hence no breach of duty in not doing so. The car was in full sight as the plaintiff ran towards it. Every witness examined saw it coming, and if the plaintiff had looked at all he could not have failed to see it. But he did not, and he ran against it utterly oblivious of its presence. Without deciding as matter of law that he was responsible for his own contributory negligence, it is enough to know that he suddenly and unexpectedly ran against the car, or so close to it that it necessarily ran against him; and for that reason cannot recover. In Railway Co. v. Connell, 88 Pa. St. 520, we held that, while negligence cannot be imputed to a child of the age of six years and nine months, nevertheless it may be assumed that a child old enough to be trusted to run at large has discretion enough to avoid ordinary danger, and that persons who have business on the street may reasonably conclude that they are not to provide against possible damages that may result to such child by his own willful act. In this last case the boy attempted to get on the front platform of a street car while it was in motion, and we held that the accident occurred "from the sudden and unanticipated act of the child itself, which could neither be foreseen nor guarded against," and we reversed the judgment without a venire on that ground. same rule was applied to a child between five and six years old in the case of Railroad Co. v. Schwindling, 101 Pa. St. 258, where the boy was in a place of danger where he had no right to be, and therefore he had no right of recovery. The case of Schnur v. Traetion Co., 153 Pa. St. 29, 25 Atl. 650, it is argued for the appellant, rules this. But the facts there raised a question of disputed testimony whether the boy was not on the track long enough before the car reached him to enable the gripman to see him if he had been attending to his business, and on that dispute the case had to go to the jury. There was evidence that the gripman was looking at the houses on the side of the road, and not on the track in front, and also that the child was seen on the track when the car was two lengths and a half away; and, although there was contrary testimony, it was necessary to submit it all to the jury. The case of Iaquinta v. Traction Co., 166 Pa. St. 63, 30 Atl. 1131, is also relied upon for the appellant, but in that case also there was a conflict of testimony as to the acts and conduct of the boy, and this required a submission of the testimony to the jury. In the very recent case of Fleishman v. Railroad Co., 174 Pa. St. 510, 34 Atl. 119, a child six

The

years old suddenly turned, when in the street, and ran towards an approaching car, and on the track. We said: "There is no evidence of negligence on the part of the motorman. He could not anticipate the sudden action of the child in attempting to cross the track immediately in front of the car, and his failure to do so was not negligence." Upon a careful review of all the testimony, we find that there is no conflict of evidence as to the acts and position of the plaintiff at the time of the accident, and as they make out a clear case of sudden and unexpected movement on the part of the plaintiff, which resulted in the injury, he cannot recover in this action. Judgment affirmed.

MCLAUGHLIN v. PHILADELPHIA TRACTION CO. et al.

(Supreme Court of Pennsylvania. May 25, 1896.)

HIGHWAYS-CONDITION OF OTHER STREETS - EVIDENCE-INSTRUCTIONS-ORDINARY CARE-CONTRIBUTORY NEGLIGENCE-TRACTION COMPANYDUTY TO REPAIR STREET.

1. In an action involving negligence in permitting a highway to remain in a dangerous condition, defendant cannot show that the road in question was in the same condition as any other road of that kind.

2. In an action to recover for persona! injuries, caused by a hole in the street, alleged to have been covered with water at the time of the accident, it was not error to instruct that, if an ordinarily careful driver would reasonably infer, from the fact of water being there, that it was dangerous to go over, he was negligent, but if there was nothing to indicate that the hole was dangerous, then he had the right to take chances of crossing, and running along the side of it, just as he might think proper.

3. In an action against a traction company to recover for an injury caused by a defect in the street alongside of said company's tracks, it was not error to charge that, if it was the traction company's duty to know that the defect was there, and that it was dangerous, then it was negligence in said company to allow the hole to remain there, and it would be liable for all the consequences resulting therefrom.

Appeal from court of common pleas, Philadelphia county.

Action by William McLaughlin against the Philadelphia Traction Company and the city of Philadelphia, for personal injuries alleged to have been sustained by plaintiff while driving over a street in said city, by reason of a defect in the street alongside of said traction company's tracks. There judgment for plaintiff against defendant Philadelphia Traction Company, and said company appeals. Affirmed.

Assignments of error:

was

a

"(1) The court below erred in sustaining an objection to a question asked witness John F. Dougherty, and in ruling in that connection as follows: 'What was the condition of that dirt road, as compared with other dirt roads? (Objected to. Objection sustained.) Mr. Finletter: I can show that the road