order in which counsel should address the jury. Smith v. Frazier, 3 P. F. S 226; Richardson v. Nixon, 8 Harr. 23. Judgment affirmed. A. Ricketts, Esq., for plaintiff in error. Gustav Hahn, Esq., contra. Supreme Court of Pennsylvania. MCDERMOTT'S APPEAL. 1. The deposit of money arising from a husband's business, by the wife, in a bank in her own name, even though it be with the husband's knowledge, is not presumptively a gift of the money to her. 2. The wife's possession of such money in bank is the husband's possession, and is not of itself sufficient evidence of her ownership. 3. The fact that the account for such money is in her name is no evidence of her ownership. Appeal from the Orphans' Court of Luzerne county. The opinion of the court was delivered April 28, 1884, by PAXSON, J.-The money in controversy was the money of the husband, and the fact that his wife helped him to earn it does not make any difference. It is settled by authority that the earnings of the wife belong to the husband save in certain exceptional cases specified in various acts of assembly. Unless, therefore, it can be shown that there was a gift of the money by the appellant to his wife, the decree of the court below cannot be sustained. In the report of audit, the learned judge came to the conclusion. that it was a gift, and in his opinion upon the exceptions says: "Was it a gift? Why not conclude that it was? What is there unreasonable about it?" We answer, that we cannot conclude it was a gift, because there was no evidence of it; and money which confessedly belongs to a man cannot be taken from him. without evidence. We do not differ from the learned judge as to any of the facts found, but we cannot concur in his deductions from those facts. The reasons upon which he based his conclusions may be summarized as follows: that the business was carried on at the old place of business of the wife; that it was chiefly through her skill, industry, and economy, aided by her friends, that the money was acquired; that he had a special deposit of his own, and that she did not conceal from him the fact that she was keeping the particular deposit in question in her own name; that immediately after her death, he enquired for the savings bank book, and said to the daughter something about the money of right should belong to him; and lastly, assuming that he knew the fact of deposit in her own name, he could not have placed the fund more completely under her control and exclusive possession. Upon such weak and inconclusive facts as these, we are asked to hold that the appellant intended that the amount of this deposit, $4,840.73, by far the larger part of his estate, should become the absolute property of his wife, so as to be entirely beyond his control, and go to her next of kin in case of her death. There is no evidence that he knew of this deposit in his wife's name until after her death; there is evidence that he was an ignorant man, and could neither read nor write; that his wife was an active business woman, that she attended to the shop, kept the books, and did most of the bank business. Even had the fact been that the proceeds of the business were kept by his wife in her own name with his knowledge, it would afford no presumption under the circumstances that he intended an irrevocable gift to her of the money. Her possession of it was his possession as much so as if she had kept the money in a safe or a bureau instead of in the bank. It is a common thing in everyday experience for a woman to have the possession and control of her husband's money, and the husband of the wife's; and if, from such fact, we were to draw the conclusion that the custodian was the owner of the money, it would lead to unexpected results. But in this case there is no satisfactory evidence that he ever knew the deposit was in his wife's name; on the contrary, the presumptions are all the other way. And, as before observed, no matter how much the wife's aid may have contributed to make the money, that circumstance did not change the fact of its ownership, nor does it raise any presumption of a gift, while the claim he made when inquiring for the bank book tends to negative such presumption. That the mere possession of money by the wife is not sufficient evidence of her ownership was settled by Parvin v. Capewell, 9 Wright, 89, where it was said: "A mere gift of money to a wife is not a settlement of it as her separate estate, for it may be for safe keeping and deposit, without any intention to divert the husband's title. And her possession of funds ordinarily implies no more than she is holding them for her husband." This is settled law, and is peculiarly applicable to this case. There is not a scintilla of proof of any intention of the appellant to make a gift of this money; nothing can be implied from the facts. beyond a mere custody thereof on the part of the wife. The cases cited by the learned judge do not sustain his conclusions. Herr's Appeal, 5 W. & S. 494, was a case in which there was strong evidence of a gift, and this conrt said: "But such gift must be established by clear and convincing proof, not only of the act of donation and delivery, but of her separate custody of it." The same doctrine is held in Tribner v. Abrahams, II Wright, 220. In Bachman v. Killinger, 5 P. F. S. 414, it was held that the possession by the wife of the husband's moneys, security, and property is very slight evidence of the transfer of the ownership, and his possession of her chattels ought to be considered still less evidence of title in him. In Crawford's Appeal, 11 P. F. S. 52, the husband informed his wife that he had added $3000 to her money; he directed his clerk to credit her on his books with the $3000 as cash received from her, and it was done. He credited her regularly with the interest on that sum in connection with the other sums belonging to her until his death. Held, that this was an executed gift followed by an express trust for his wife, and payable to her from his estate, but that it could not be supported as a debt. In addition, it appeared that the husband had that amount of his wife's money in his possession. Here, there was a plain intent to make a gift, followed by a positive unequivocal act. But where there is a mere permissive act, such as to allow the wife to be a custodian of his money, I know of no case in which it has been held that a gift can be implied from such act. We need not pursue the subject further. We can see nothing in the case from which a gift of this money by the husband to the wife can be reasonably implied. The money appears to have been received by the administrator from the cashier with the understanding that the question of ownership should be settled in the Orphans' Court upon distribution. There also appears to be a proceeding pending in the Orphans' Court to strike this item from the administration account. As the money has actually gone into the estate of the wife, we may treat the appellant as her creditor; and to prevent circuity of action, we have concluded to dispose of the main question upon this appeal. The decree is reversed at the costs of the appellees; and it is ordered that the deposit, less the amount due the attaching creditors, be paid to appellant. Q. A. Gates, for appellant. H. W. Palmer and John Lynch, contra. See McDermott v. Miners Savings Bank of Pittston, 2 Kulp, 170. Court of Quarter Sessions of Schuylkill County. RYAN TOWNSHIP ROAD. If only two of three road viewers participate in a view, the error is fatal. It must affirmatively appear that the viewers were sworn. The opinion of the court was delivered February 18, 1884, by GREEN, J.-There are two fatal objections to this report as shown upon its face: 1st, The view was made and report made by only two of the three viewers appointed. The law requires that all three should participate in the view, though only two need concur in the report. 2d, The report does not show that the viewers were either sworn or affirmed, nor does it otherwise appear. This is fatal. Bryson's Road, 2 Pen. & W., 207; Road from Morrison's lane, 3 S. & R., 210; Road in Macungie township, 2 Casey, 221. And now, February 18, 1884, report set aside. Supreme Court of Pennsylvania. PETERS' APPEAL. 1. Stale claims against dead men's estates should not be encouraged. 2. After the lapse of twenty years, mortgages, judgments, recognizances, and all evidences of debt, are presumed to be paid. 3. Such presumption stands until rebutted, gathers strength as time advances, and cannot be overcome by proof, vague and uncertain. + Whether the presumption of payment is sufficiently rebutted is a question of law for the court. Appeal from the Orphan's Court of Luzerne county. The opinion of the court was delivered April 28, 1884, by PAXSON, J.-Stale claims against dead men's estates should always be scrutinized, especially so where the claim might have been brought against the decedent in his lifetime, but has been delayed until death has sealed his lips, and placed it beyond the power of his legal representatives to defend with a full knowledge of the facts. The claims, the allowance of which forms the subject of the two assignments of error, belong to this class. One of them was allowed to sleep for over thirty years, and the other for about twenty-five years, before any one was called upon for payment. The first claim was for the sum of $583.33, which, it was alleged, Mrs. Peters paid at the request of her husband and on his account in 1851. There was evidence that Mrs. Peters had this amount of money, and that she did pay Jacob Weiss and William Hess some money on account of notes they held against her husband. But as to the amount of the notes, or the amount Mrs. Peters paid at that time, there is not a word of testimony. It is true one witness speaks of an admission of decedent that he received something like $600 from his wife, but the admission was coupled with the further statement that the money was given to him by his wife to enable him to keep their home. The admission, taken as a whole, does not strengthen the appellee's case. This leaves the claim wholly uncertain in amount. The learned court below fixed it at $583.30. I have looked in vain through the evidence for anything which would lead to this result, but conceding its |