would be an absolute want of evidence showing that this deposit was made." Again, in affirming defendant's third point, he explicitly charged: "That unless the jury are satisfied from the evidence that on the 24th of May, the alleged deposit in currency and checks was received by the defendant, as averred by the plaintiff in his statement, the verdict must be for defendant." him, it refused to credit him therewith, or, in any manner, to recognize him as depositor of the same. Why then require him to perform the idle ceremony of demanding payment of that which the bank persistently denied, and still denies, he ever deposited, and, as to which, he him self does not claim that the relation of deThat relation cannot be created without positor and depositee was ever created? the meeting of two minds,-one to propose and the other to accept. In this case, plaintiff offered to deposit the curUnder these and other instructions, rency and checks with defendant bank, quite as favorable to the defendant bank but the latter never accepted the offer, as they should have been, the verdict for and has always denied that it was made. plaintiff was rendered, subject to the The jury found as a fact that it was made, question of law reserved. The verdict and that the currency and checks in questhus rendered necessarily implies a find- tion, accompanying it were retained by ing by the jury of each and every material the bank. In these circumstances, the fact relied on by the plaintiff, as above existence of which has been conclusively stated, including, of course, the main established by the verdict, there was, in fact that the money and checks, amounting to $1385, were remitted to and received by the defendant bank on or about May 24, 1887, as averred in his stateFor the purposes of this appeal these facts must be regarded as having been conclusively established by the verdict; and the sole question is whether, in view of the facts thus established, the court was warranted in reserving the question and afterwards entering judg ment thereon for the defendant, non obstante veredicto, solely for the reason that no formal demand was made by the plaintiff before he brought suit. If the relation of depositor and depositee had been admitted, or established by the verdict, it cannot be doubted that no action could ment. my opinion, no necessity for any demand before bringing suit. On all occasions, before suit as well as after, the bank positively denied that it had ever undertaken to act as depositee of the checks and currency in question, and actually repudiated plaintiff's claim thereto. Having done this, the defendant, on the score of consistency, should not be permitted, by way of further defence, to insist that there was no demand for that which it declares it never had. In view of the clearly established and undisputed facts, I would hold as a matter of law that the plaintiff had a right, without more, to maintain an action for the amount of his claim. But, assuming that this position is have been maintained by the depositor either doubtful or untenable, and that it until a formal demand had been made by was incumbent on the plaintiff to prove, him or waived by the bank. The princi- inter alia, that demand was made, or that ple applicable in such cases is too well it was waived by the bank, or that the recognized to require either argument or necessity for demand was obviated or discitation of authority; but, as we have pensed with by unequivocal acts of the bank which were tantamount to an exseen, that is not this case. As to the currency and checks, in question, the press waiver, can there be any doubt that only items of claim and subjects of conthe latter alternative was conclusively estroversy in this case,-the defendant bank tablished by uncontradicted evidence to has, from first to last, persistently denied which some reference had been made? that the relation of depositor and depos- We think not. itee, between it and plaintiff, ever had any existence in fact; and the plaintiff While the duties of depositor and dedoes not base his right to recover on the positee are, as a general rule, reciprocal, existence of any such relation, but on the the one to pay on demand, and the sole ground that, while the bank received other to make such demand, before a the currency and checks transmitted by right of action accrues, there are,—as in other transactions where previous demand bringing suit. The necessity for such is required, several exceptions to the demand was clearly obviated by the unrule. When, for example, a bank has equivocal acts and declarations of the suspended payment and closed its doors, bank in positively and repeatedly denya demand would be unavailing; the bank ing plaintiff's right to make any claim by its acts has waived the necessity for a upon it in respect to the currency and demand; Cooper v. Mowry, 16 Mass. 7. indorsed checks in controversy. "Notice by a bank to its depositor that If there was any question as to the his claim will not be paid," renders de regularity or validity of the verdict,mand unnecessary; Farmer's Bank v. whether it was against the weight of the Planter's Bank, 10 Gill. & J. 422; 2 Am. evidence, or contrary to the charge, etc., & Eng. Ency. Law, 102. So also, send- the proper forum for that was the court ing a depositor an account claiming the below. From the fact that defendant's money as its own; Bank of Mo. v. rule for new trial, etc., was discharged, Benoist, 10 Mo. 519. "Discontinuing it may be inferred that the verdict was banking operations with knowledge satisfactory to the court. Whether that thereof by depositor," is equivalent to was so or not, it is not a matter for our express waiver of demand; Planter's consideration. As an approved verdict, Bank v. Farmer's &c. Bank, 8 Gill. & J. 419. And, generally, where it is shown that demand, if made, would be disregarded or prove useless, the necessity of making it is obviated and need not be proved; Heard v. Lodge. 37 Mass 53; Ables v. Glover 15 La. An. 724; 5 Am. & Eng. Ency. Law, 528 b; 1 Morse on Banks and Banking, (3rd. Ed.) 548. Sec. 322, e.; Thompson's National Bank Cases 260; Bank v. Bailey 12 Blatchford, 480. we must accept, as verity, the findings of fact of which it is necessarily predicted. It follows from what has been said that the question of law reserved;-"Whether the plaintiff, not having shown or proved any demand or refusal, before suit brought for the value of the deposit, is entitled to recover in this suit, if otherwise entitled to recover?"-is irrelevant and immaterial, and judgment for the defendant, non obstante veredicto, was unwarranted. Both assignments of error are therefore sustained. Judgment reversed, and judgment is now entered in favor of the plaintiff, on the verdict, for $1385, the amount found by the jury, with interest from date of In Heard v. Lodge, supra, it is said: "It is a fundamental principle that the necessity for a formal demand is often waived or obviated by the conduct of the other party, or when the state of the case is such as to show that a demand would the verdict. have been unavailing. It is peculiarly true in a case where the party wholly denies the right of him who seeks performance." "If the bank, by words or conduct, denies the depositor's right to his balance, it becomes presently liable to an action without formal demand, and interest would be recoverable as damages." Thompson's National Bank Cases, supra, 263. There is no sounder maxin than that upon which all the foregoing and other so called exceptions to the general rule, as to demand are founded: "The law compels no one to do vain or useless things." According to the positive and uncontradicted evidence in this case, in connection with the facts conclusively established by the verdict, it would have been an utterly vain and useless thing for the plaintiff to have made a formal demand on the defendant bank before C. P. of COMMON PLEAS. Lancaster Co. Levy v. Metropolitan Life Ins. Co. Insurance companies-Suits against-Service of summons. Where, on certiorari of a suit brought before a magistrate against an insurance company, there is nothing in the proceedings to show that the defendant was a foreign insurance company, the judgment will not be set aside on the ground that the service of the summons on the local general agent was not a proper service. Certiorari. B. Frank Eshleman for certiorari. October 7, 1895. LIVINGSTON, P. J.From the record of the magistrate as produced and filed, it appears, that, on the 17th of June, 1895, a summons was issued by Jeremiah Rife, an Alderman of the Walker v. The Phila., Wilm. & Balto. R. R. Co. Evidence-Action for damages for land taken by railroad company-Admissibility of borough plan, adopted after the location of the road. Upon the trial of an action for damages for land taken by a railroad company, a plan of the borough streets, bearing the names of the proper officers, produced by the borough surveyor and proved to be a correct plan of the streets as adopted by proper borough ordinances, is admissible in evidence notwithstanding that the plan may have been made after the location of of the suit. the railroad, or even after the commencement Rule for new trial. The facts are sufficiently stated in the opinion of the court. We The transcript does not show that either of the parties appeared before the Alderman between 10 and 10:30 o'clock on June 22, 1895. The suit was then conJohn B. Hannum for the rule. tinued until June 27, 1895, between 10 and 10:30 o'clock a. m., and both parties V. Gilpin Robinson, contra. notified of continuance, and "now June December 2, 1895. CLAYTON, P. J.27, 1895, (the hour is not stated,) plain- The damages are certainly full. tiff appears, claims $15 on non-perform- cannot say, under the evidence, that they ance of contract embraced in receipt or are excessive. The case was well concontract-defendant does not appear. ducted on both sides and the jury were Lewis P. Levy, Plaintiff aff'd. Receipt fully, carefully and correctly charged. and contract dated May 17, 1895, pro- The only substantial error alleged was duced. Demand made of the agents of the admission of the borough plan. I do defendant company to deliver policies of not see how this plan could be lawfully insurance as agreed upon; policies not excluded. We must bear in mind that delivered, and demand made for the re- the borough is authorized by law to turn of the amount paid on account of make an official plan. Granting for the premium as stipulated in receipts; policies not delivered nor money returned. Upon hearing parties' proofs and allegations, judgment is entered publicly by default, June 27, 1895, at 10:30 o'clock a. m, in favor of pltff. and against dfts., in the sum of $15, with costs of suit." The exceptions filed are: ,'1. The service was not had upon any deputized or authorized agent of the company defendant. 2. The record does not show that the constable appeared before the Justice to be officially identified as required by law." There is nothing in any of the proceed ings, or exceptions to the proceedings, to show that the defendant is a Foreign In surance Company; and if it is not, the service was sufficient. sake only of the argument, that this plan had not been adopted in strict accordance with the law, it had nevertheless the names of the proper borough officers upon it, was produced by the borough surveyor and was proved to be a correct plan of the streets of the borough as adopted by proper borough ordinances, and was the recognized official plan. The objection urged upon the argument that there was no proof as to when it had been officially adopted and that it, for all that appears upon it, might have been adopted since the location of the defendant's railroad, is without weight, for the simple reason that the borough having the power to plot its streets and to change, vacate, etc., streets already laid out, could lawfully make a plot after the loca tion of the road, or even after the commencement of the suit, and its action could be offered in evidence to show that Abstracts of Recent Decisions. (Cases not otherwise designated are Su streets on the ground had since been preme Court cases.) The plan was only admitted as prima decedent, at time of his death, was a memfacie evidence of what it contained. I apprehend a private map, with nothing objectionable upon it, and duly proved, would be proper evidence. The rule for a new trial is discharged. C. P. of Donovan v. Foley. Decedent's Estate-Surcharges.—Where ber of a partnership (a co-operative association that had not complied with the law) which is insolvent, and his adminis tratrix (the widow), acting under advice of counsel, purchases all the assets of the partnership and assumes all the debts for purpose of protecting the estate, as far as Montgomery Co. possible, against loss, the administratrix is not liable to be surcharged if the transaction, turning out to be a bad one, causes loss to the estate. Administrators are not liable for losses when they act as others do, with their own, in good faith, especially when acting under advice of counsel. Where, as matter of fact, the administration has been unwise, and losses has resulted to the estate from it, and where there has been long delay in accounting, though the administrator will not be surcharged, he will not be allowed Breach of Promise-action for. Damages for breach of promise of marriage were recoverable in an action of assumpsit. It follows that under the Procedure Act of 1887 the action is still "assumpsit" and not "trespass." The form of action may be amended from trespass to assumpsit. Demurer to plaintiff's form of action. Holland & Dettra, Esqs., for plaintiff. November 18, 1895. SWARTZ, P. J. The plaintiff brought an action of trespass to recover damages for a breach of promise of marriage. The procedure act of 25th of May, 1887, provides that all demands hereto fore recoverable in debt, assumpsit or covenant, shall hereafter be sued for and recovered in one form of action, to be called an "action of assumpsit." Damages for breach of promise of marriage were recoverable in an action of assumpsit: Von Storch v. Griffin, 77 Pa. 504; Troubat & Haley, Sec. 1490; American and English Encyclopedia of Law, Vol. 2, p. 525; Chitty's Pleading, Vol. 2, p. 236. The form of action may be amended assumpsit to trespass, Com. v. Press Co., Limited, 156 Pa. 516, to action on the case for damages from trespass, Yocum v. Zahner, 162 Pa, 468. See also Col lins v. Barnes, 130 Pа. 356. Upon application by the plaintiff leave will be given to amend the form of action as well as the statement should the same be found insufficient, such application to be made within twenty days. compensation. A widow, who is, herself, administratrix, need not make demand on herself for the exemption; she may take it and claim credit in her account.Atherton's Estate, (Luzerne O. C.) 8 Culp 150. Construction of will-Residuary legacy to "legal heirs"-When distribution per stirpes.-The testatrix, after making certain specific bequests in her will, directed that the residue of her estate should be "equally divided amongst my legal heirs." In a codicil the testatrix gave $1,500 to her sister Fanny for life, and the same at her death I give and bequeath to all my legal heirs the same as if I had died intestate as to said amount." Fanny died after the testatrix without issue. The heirs of the testatrix were children and grandchildren of deceased brothers and sisters. HELD, that the codicil requiring the distribution of the $1,500 legacy per stirpes under the statute of distributions, the testatrix presumably intended the entire residue of her estate to be divided among her heirs in the same manner. HELD FURTHER, that a share of the $1,500 legacy should be awarded to Fanny's executor.-Miller's Estate, (LancasIter O. C.) 13 Lancaster Law Review 33. York Legal Record. solutely the grades, and the slopes, and The Supreme Court will not reverse a judg ment on a verdict in favor of the plaintiff in an action against a city to recover damages for personal injuries suffered by a fall on a defective sidewalk, where it appears that the city authorities knew of the defect, and had refused to repair the sidewalk, and the court below properly submitted to the jury the evidence of plaintiff's contributory negligence tending to show his knowledge of the condition of the sidewalk, his manner of passing over it on the night of the accident, and his acquaintance with other streets and sidewalks in the neighborhood. ous the heights, and to exercise all these Now, this they had a right to do. They were not bound by any rule or principle f law to adopt the grade that existed in Springgarden township, or to maintain the previously existing grade. It was a matter within the power and within the discretion of the city, so far as to determine what that grade should be; and they did determine on grades eighteen or twenty inches above the grade, as I have said already, of the adjoining township; and the pavement was laid under the orders of competent city authorities Appeal by the defendant from the to the grade given by the city surveyor. judgment of the Court of Common Pleas This made an offset, as has been repeatof York county, Pa. Mortality tables are admissible in evidence in an action to recover damages for personal injuries, but the trial judge should instruct the jury that the value of such tables when applied to a particular case depends very much upon other matters, such as state of health, habits of life, liability to contract disease, social condition, etc. The facts is this case are stated in the following charge of the Court, Latimer, P. J., to the Jury: The city of York is a municipal corporation. It is charged with the duty of maintaining the public highways within the city in such a condition of reasonable repair as will make them safe by day and by night for their ordinary use by those who have occasion to use them as highways. Its duty extends not only to the traveled portion of the street between the pavements, but to the sidewalks also. They have control over the height, the width, the slope, the grade, etc., of sidewalks, as well of streets; and in exercis ing the powers and performing the duties which are imposed upon them in this behalf, as I said before, the measure of duty and the measure of responsibility is the maintaining of highways, or preserving them in such a condition as to make them safe and convenient for ordinary use or travel by foot passengers as well as drivers. I have already said that they have the power to control ab ed very often in this case-a difference of elevation of about eighteen or twenty inches, so that anybody going east on that sidewalk must step down, when he reached that place, or go down eighteen or twenty inches to continue his walk. The city having done this-having made this change of grade-in pursuance of lawful right, was bound to protect that place. They were bound to adopt some device, or use a device, which, notwithstanding that abrupt change of grade, would made the sidewalk still safe and convenient for ordinary passage by day and by night; for that is the measure of their responsibility. Municipal corporations are not insurers against accident. Municipal corporations are not responsible for every injury or accident which occurs, even through slight defects in their highways and their sidewalks. They are held to due vigilance and care; and that always varies under the circumstances of each particular place, and each particular case. But they are bound to that degree of vigilance and care that will, as I have already said, make their highways safe |