a certain credit balance in the account of the 1896." It is impossible to understand why this estate of Thaddeus S. Gardner, deceased, on the was not competent proof. The objections that plaintiffs' books, and amounting to $1103.50, it was not specially declared upon, and was not should be turned in by the administrator of T. S. the subject of a book entry, are quite untenable. Gardner, as a payment on account of the over- The cause of action was an overdraft upon an draft. The defendants claimed that such a con- entire account and the payment of the note was tract had been made, but the plaintiffs denied it, an item in the account. The plaintiffs paid it for and this was the issue of fact upon which the case the defendants, they settled the whole account of turned. It was necessarily left to the jury and which this entry was a part, they delivered to the the jury found by their verdict that such a con- defendants the note, along with other checks and tract had not been made. The learned trial Judge drafts which they had also paid for the defenvery carefully explained this question, and very dants, and also the bank book, showing the settlefairly and impartially charged the jury in refer- ment, including this note, and they were most ence to it, stating at some length the evidence re- undoubtedly entitled to have the whole account lied upon on each side, and their respective con- go to the jury, together with all the vouchers tentions; and directing them to decide the ques- sustaining it in the shape of checks, drafts and tion as they found the preponderance of the notes. The first, second and third assignments testimony to be on one side or the other. Having are dismissed. The only remaining assignment read the whole of the testimony and the argu- is the fourth, which relates to the competency of ments of counsel in this Court, we are constrained James P. Gardner as a witness, to testify to a to say that the whole controversy was fairly and contract alleged to have been made by him with fully presented by the Court to the jury, and as Anthony S. Morrow, a member of the plaintiff it seems to us the verdict of the jury was right firm, during his life, he being then dead. The under all the testimony. But however that may contract, which was offered to be proved in this be, there was testimony in support of the integ-way, was an agreement that the plaintiff firm of rity of the plaintiffs' claim, sufficient to sustain Gardner, Morrow & Co. should pay to the Secthe finding of the jury, and we are therefore ond National Bank of Altoona the $3000 note of bound by the verdict. The fifth, sixth and sev-the defendant firm which had been discounted by enth assignments are dismissed. The remaining that bank, and that the plaintiff firm should assignments relate to offers of testimony. As to charge the amount thus paid to the account of the first three of these the checks and drafts of- T. S. Gardner, in the bank of Gardner, Morrow fered constituted a part of the account of the & Co. and credit thereon the balance due to T. S. plaintiffs against the defendants, the account it- Gardner on his account with Gardner, Morrow self had been settled in the manner usual with & Co. It was further offered to prove that T. S. all banks, the bank book of the defendants was Gardner was the father of the witness and had offered in the same connection showing the died intestate, leaving a widow and two children. credits of the defendants in the plaintiffs' bank, Paul D. Gardner and James P. Gardner (the and the whole offer was made as preliminary witness), and that the widow and Paul D. Gardproof leading up to the proof of an overdraft. ner had released the witness from any liability We know of no reason why this offer was not on account of the transaction. competent. The establishment of the fact of an The witness was rejected as incompetent to overdraft necessarily involved the state of the testify to any matters occurring between him and entire account. The individual checks and drafts the deceased member of the plaintiff firm, in the were offered as parts of the account and not as lifetime of the latter, but was allowed to testify independent causes of action upon each instru- to matters occurring subsequently to the death ment to establish a separate contested liability of the adverse party.

on each. If upon the whole account there result- We do not see how there can be any question ed a balance in favor of the bank as against the as to the propriety of this ruling of the Court depositor, a cause of action would arise as for a below. The witness was a living member of the loan or advancement of money to the extent of defendant firm. He was called to prove a conthe debit balance. Such a claim could not be tract made by him with a dead member of the considered without a knowledge by the jury of plaintiff firm, in order that his firm, and consethe state of the whole account. The $3000 note quently himself, might escape a liability to which, itself was then offered after having been produced upon the face of the plaintiffs' claim, they and he by the defendants on notice, having been deliv- were otherwise subject. His testimony was adered by the plaintiffs to the defendants on the set- verse to the plaintiffs and to their dead member tlement of the account, and marked on its face, as one of them, it related exclusively to a con"Paid by Gardner, Morrow & Co., January 15, tract which, it was alleged, was made between

that dead member and himself, and the purpose in which Joanna DeRoy and others were plainof the offer was to relieve the witness and his tiffs. firm from a liability to which they were otherwise This was an action brought against James F. subject. It is difficult to imagine a plainer case Richards, sheriff of Allegheny County, by Joanna of incompetency. It comes exactly within the DeRoy, wife of Emanuel De Roy, Bianca DeRoy, prohibitive words of sec. 5, clause (e), of the Act Abraham E. DeRoy, Benjamin E. DeRoy, Corof 1887, P. L. 158: "Nor where any party to a nelia DeRoy, Jacob E. DeRoy, Israel DeRoy thing or contract in action is dead. . . . . and and Nina DeRoy, minor children of Emanuel his right thereto or therein has passed either by DeRoy and Joanna DeRoy, by their guardian, his own act or the act of the law, to a party on the said Emanuel De Roy, and Emanuel DeRoy, the record who represents his interest in the sub-trustee of the said Joanna DeRoy, Bianca DeRoy, ject in controversy, shall any surviving or re- Abraham E. DeRoy, Benjamin E. DeRoy, Cormaining party to such thing or contract . . . . nelia DeRoy, Jacob E. DeRoy, Israel De Roy and be a competent witness to any matter occurring Nina DeRoy, to recover for an illegal sale of before the death of said party." These are the property levied upon as belonging to Emanuel precise conditions in the present case. It mat- DeRoy. ters nothing whether A. S. Morrow was insolvent or not, and no release executed by the mother and brother of the witness could possibly relieve him of the disqualification imposed by the Act. The fourth assignment is dismissed. Judgment affirmed.

Superior Court.

April, '98, 183.

Superior Court.
DeRoy v. Richards.

W. C. S.

April 27, 1898.

On the trial, before STOWE, P. J., the facts appeared as follows:

Emanuel De Roy sometime in 1882 became inHis brothers advanced certain money solvent. under a deed of trust executed by them and dated April 28, 1882, by which DeRoy was to carry On a business as trustee, to repay the advance and afterwards for the benefit of his wife and family. DeRoy accordingly put up a sign "Emanuel De Roy, Tr.." and carried on a jewelry and loan business at No. 643 Smithfield street, Pittsburgh.

Emanuel De Roy, Tr., on or about February 27, 1896, made and delivered to the firm of Leopold Weil & Co., who were at that time in the Business trust for benefit of family of insolvent-wholesale jewelry business, in the city of New Insolvent as trustee-Fraud-Promissory note York, a promissory note for $220.40, which note, -Practice-Assignments of error. with others amounting to between nine and ten Where capital is advanced by third persons for the thousand dollars, were given as an accommodaestablishment of a business under a trust to refund tion, for and on behalf of the firm of the said the capital to those advancing it and afterwards to Leopold Weil & Co., and not for the benefit of carry on the business for the benefit and use of the the trust estate, of which said Emanuel DeRoy family of an insolvent, such trust if made and car

ried out in good faith is valid in law, even if the was acting as trustee; the said note was not for insolvent be the trustee; and the property of the merchandise bought from said Leopold Weil & said business is not liable to execution for his indi- Co., or for a debt contracted for the benefit of vidual debts.

A trustee so carrying on business cannot render the trust estate liable by giving a note as trustee where the estate receives no benefit therefrom and the note is not given in the course of the estate's business.

A promissory note is presumably the obligation of the person giving it; if he intend to sign in a representative capacity only, that fact must be indicated with reasonable certainty, in order to give notice to subsequent purchasers and endorsers.

the trust estate, as at that time the trust estate owed nothing to said firm of Leopold Weil & Co.: the said note was discounted by the National Bank of North America, of New York, through a note broker of New York, and the proceeds realized from discounting said note was paid to Leopold Weil & Co., by said broker and E. DeRoy, or E. De Roy, Tr., and the firm of Leopold Weil & Co., never came into contact with any officer of the bank; when the note fell due, it was not paid and was protested. The bank brought action against said E. DeRoy, Tr., and recovered judgment for want of a sufficient affidavit of defence. On the argument of the rule, the Court Appeal of James F. Richards, defendant, from held, "That the word 'tr' had no significance in the judgment of the Common Pleas No. 1, for law, meant nothing, and that said note was the the County of Allegheny, in an action of trespass individual note of E. DeRoy." An execution

An assignment of error to the admission of testimony which does not give the testimony objected to, the names of the witnesses, or the page of the paper book containing it, is defective.

was issued. James F. Richards, the defendant, "7. Where the property of the ward is in the the sheriff of Allegheny county, levied upon the possession of the agent or trustee, and it is levied goods and chattels in the store at No. 643 Smith- upon and sold as the property of the agent on a field street, whereupon Mrs. Joanna DeRoy, wife debt of the latter, the principal may maintain of Emanuel De Roy, on her own behalf, and on trespass against the sheriff, notwithstanding the behalf of her children, gave verbal notice to the fact that the agency was disclosed or undisclosed sheriff at the time of executing said writ, and to the execution creditor." Answer-"That is afterward written notice, that the goods and chat- affirmed. When the sheriff undertakes to sell tels levied upon, were not the property of said property upon execution, he has to take care that E. DeRoy, Tr., but belonged to her and her chil- he does not sell the property of somebody else, dren; and claimed said goods and chattels, by and if he has notice that the property belongs to virtue of the deed of trust, dated April 28, 1882, somebody else, but undertakes to sell it, and it and the sheriff on receipt of said notice directed turns out to be the property not of the defendant the bank to give an indemnity bond, which bond in the execution, but of somebody else, he is liawas given by the said bank, and thereupon, he ble for the property he does sell." (Seventeenth proceeded with the levy and sale of sufficient assignment of error.) personal property to satisfy the costs and claim In the general charge, the Court said, inter alia: of the said bank, notwithstanding the said notice. "But when we come to consider the evidence The trust deed not being forthcoming the re- further, it shows that this was not a note given in cord was offered, but was rejected by the Court, connection with the transaction of the business, and the plaintiffs were allowed to prove the con- and therefore it having been an accommodation tents by parol testimony given after the witnesses note and given by him in a way that he had no had examined the record. (First, third, fourth, and fifth assignments of error.)

The plaintiff submitted, inter alia, points which with the answers thereto, were as follows:

right to give it, so as to bind the trust, if you are satisfied that the property there was the wife's and not his, the plaintiffs are entitled to recover damages in this case to the extent of the injury done by the levy of the sheriff." (Tenth assignment of error.)

"2. That the trustee appointed under the deed of trust to carry on the business, to buy, trade, barter and sell cannot make accommodation "I presume you have come to the conclusion paper, either as maker or endorser in the ab- that there was such a deed of trust as claimed by sence of express authority for that purpose." the plaintiffs, that the money was advanced in Answer-"That is affirmed. Striking out the pursuance of that deed of trust and was paid back word 'express,' it may be implied. But without to the donors after a series of years, four or five, authority to do so, he has no authority, and there or whatever length of time it was, and that the is no evidence of any authority in this case of business was carried on apparently by Emanuel any kind." (Fourteenth assignment of error.) DeRoy with the letters Tr. in small characters "3. If the jury believe that the trustee acted in after his name on the sign, and that he did busithis case in his individual capacity, then the es-ness generally as Emanuel De Roy, Tr." (Elevtate which he holds in trust is not chargeable enth assignment of error.)

with his act, he having acted outside of the scope "Then the whole question comes to this: If or authority vested in him by the trust deed cre- you believe that there was such a trust, that it ating the trust." Answer-"That is affirmed, if was given by parties who had a right to have the you believe there was such a trust made in good money placed for the benefit of the wife and chilfaith and carried out in good faith, as claimed by dren, the law allows just such a trust as this to the plaintiff." (Fifteenth assignment of error.) be created, and the man's friends or the wife's "4. If the jury believes that the trustee, Em- friends may come to his relief, and for the beneanuel DeRoy, assumed control of the property. fit of his wife and children, advance money for subject to all the conditions and limitations of the purpose of carrying on the business, and the trust, he may not alter nor dispense with any either provide that the money be paid back to of them, nor impose new conditions and powers; them if enough is made out of it, or provide that and if the trustee violates his instructions or ex- the whole may go to the wife, and that the busiceeds his authority, he does so at his own peril." ness shall be carried on for the use of the wife Answer-"Affirmed. The party acting as the and children by the husband, the party in whose trustee of another is bound by the limitations of hands the property is left. So that the transacthe trust, and if he undertakes to bind the trust tion, so far as the appearance of things is conestate beyond the powers given him, he makes cerned, indicates nothing upon the face of it that himself liable, but he cannot make the estate lia- would be any violation of law." (Twelfth asble in this way." (Sixteenth assignment of error.) signment of error.)

Verdict and judgment for plaintiffs. The de- to be held out to the world as the owner of the fendant took this appeal and filed assignments of business. error, inter alia, as above indicated.

This case is distinguishable from Holdship v. A. Leo Weil, (Charles M. Thorp with him), for Patterson, 7 Watts, 547; there the business was appellant. to be carried on in the name of the daughter. It was error to instruct the jury that if they The Court below has misapplied the principle did not believe there was a scheme between De-laid down in the Patterson case. Besides the Roy and his wife to defraud creditors, in the fact that DeRoy was to do business in his own making of the trust deed in 1882, they should find name, and has done so, it nowhere appears in this for the wife. This ignores anything and every- case that the said trust was known and frankly thing that was done subsequently. The fraud, communicated to all who chose to entrust goods as we contend, on this branch of the case, was, or credit to the concern, as in the Patterson case. if not an actual, a legal fraud, independent of the This is a most important requisite and is the one intention of the husband and wife, and the jury, essential to save these trusts from the condemnain order to find for the wife's title, under such tion of the law. Appellees may claim that they circumstances, must also find that the execution recorded the alleged trust agreement, and thus creditor was not defrauded by the method in gave notice to the world. But such a paper is which business was done; that, notwithstanding not within the recording Acts, and the recording the possession of DeRoy, the creditor had notice of it, if in fact it was recorded, is not notice to of the wife's title, and was not, therefore, a bona anyone. fide creditor without notice.

Janney v. Howard, 150 Pa. 339.

Fitler . Shotwell, 7 W. & S. 16.
Hellman r. Hellman, 4 R. 440.
Maul v. Rider, 59 Pa. 167.

Conceding for the purpose of the argument. The only evidence, then, of notice, is the misthat the alleged trust agreement was proved, and erable makeshift of the letters Tr., which instead was honest and free from actual fraud, and that of being a frank and honest attempt to communithe title to these goods was undoubtedly in the, cate notice, was rather an effort to disguise and wife and children, it appeared that the business conceal the alleged trust.

was being conducted by DeRoy in his own name, DeRoy as agent had a right to bind the busihe being in possession and the ostensible owner., ness by the note signed.

Under these circumstances, the bank discounts The act of an agent binds his principal, even De Roy's promissory note for value, without any if in excess of his authority, if the act is within other notice as to the ownership of the goods the scope of the apparent authority of the agent. than that indicated by possession. Under such circumstances the title of the wife and children is plainly void as to the bank.

Brooker. Railroad, 16 WEEKLY NOTES, 514.

Joseph Crown, (with him R. H. Jackson and Charles P. Lang), for appellees.

In Pennsylvania the doctrine which protects The whole of appellant's contention against the a bona fide creditor even goes to the extent of validity of the deed in question, seems to be that making it the duty of the Court to give binding; it provides that "DeRoy was to be employed as instructions in favor of such creditor, where per-agent, to trade, deal, barter, buy and sell in his sonal property is in the possession of the debtor, name," that E. DeRoy after repayment to the without any thing to put the creditor upon notice, donors, was made the "guardian and trustee." of the claim of title by the true owner.

Clow . Woods, 5 S. & R. 275.
Stephens . Gifford, 137 Pa. 219.
Janney r. Howard, 150 Id. 339.

Brawn . Keller, 43 Id. 104.

Brunswick & Balke Co. v. Hoover, 95 Id. 312.
Farquhar t. McAlevy, 142 Id. 233.
Caulfield v. Van Brunt, 173 Id. 432.

We submit that the deed in question is drawn in conformity to the Patterson deed, in Holdship v. Patterson, 7 Watts, 547, and to the Stephenson deed, in Mathews 7. Stephenson, 6 Pa. 496.

In the latter case, Thomas Stephenson, the father of the "cestuis que trustent," was made the trustee of the estate created for their benefit, so in this case. Emanuel DeRoy was made the trusIt was error for the Court to charge that the law allows just such a trust to be created as that tee and agent, the title vested in Mrs. DeRoy under which plaintiffs claim; that is, a trust in and her children, the plaintiffs in this case. The which certain friends or relatives contributed right to create such estates and their security money to a trader to carry on business in his against execution issued for personal debts of the own name for the benefit of his wife and chil-trustee seems to be firmly established.

dren. Such a trust is, we submit, void as against bona fide creditors, whose claims arise after a trust is created, because it permits the husbandj

Holdship v. Patterson, 7 Watts, 547.
Mathews r. Stephenson, 6 Pa. 497.
Evans v. Kilgore, 147 Id. 19.
Rife v. Geyer, 59 Id. 393.

As to the purpose of Israel and Joseph De-alleged secondary evidence, and to the inadequacy Roy, the brothers of Emanuel De Roy, in the of the preliminary proofs to warrant its admiscreation of this trust estate, there can under the sion. Even if error to the introductory and secevidence, be no question, the good faith of all ondary evidence could properly be assigned in parties stands' unchallenged. one specification, the testimony referred to noIt is, however, contended by appellant, that, where appears in the assignment, nor is the name though the estate was created in good faith, the of a witness who testified on the subject, or the business was subsequently carried on, as that of page of the paper book given. The second and E. DeRoy, and that this was so done with the full third specifications are also defective in this reknowledge of Mrs. DeRoy. That thus persons spect; not giving the testimony objected to, the with whom E. DeRoy had dealings were liable to names of the witnesses or the page of the paper be misled and legal fraud perpetrated. book.

The evidence discloses that the business was The fourth, fifth, sixth, seventh and ninth carried on under the name of E. DeRoy, Tr.; specifications allege error in the admission of that all goods were bought in this capacity, all testimony not contained in the assignment, nor notes and checks so signed. is its whereabouts otherwise designated. These

The terms of the trust show that Mr. DeRoy specifications are in disregard of the specific rehad no power to execute such a note as trustee. quirements of Rules XV. and XVII. of this The estate was therefore not bound, and the note Court. These rules are exactly similar to Rules to have validity must be construed as merely the XXII. and XXIV. of the Supreme Court, and individual note of E. DeRoy.

Story on Promissory Notes, sec. 63.
Taylor v. Davis, 110 U. S. 334.
Woddrop r. Weed, 154 Pa. 307.
Young v. Weed et al., 154 Id. 316.

receive a like construction. Where they are not complied with, the specifications will not be considered: Hawes v. O'Reilly, 126 Pa. 440; Battles v. Sliney, 126 Pa. 460; Sticker v. Overpeck, 127 Pa. 446; Title Company v. Gray, 150 Pa. 255: Reynolds v. Cridge, 131 Pa. 189; Rodovinsky . Knitting Company, 5 Pa. Superior Ct. 636: Taylor v. Sattler, 6 Pa. Super. Ct. 229.

Those who deal with trustees are presumed to do it with notice of the legal limitation of their power; and when they go outside of this, do so at their own risk. Administrators, executors and Whether the promissory note for which the guardians are quasi-trustees, with duties pre- judgment against E. DeRoy, Tr., was obtained scribed by law, which everyone is obliged to was an accommodation paper, or given in the know, and notice of whose character is notice of business of the trust, became pertinent under the the limitation of their power. issue of fraud in the trust raised by the defendant.

Appeal of Bank of Pittsburgh, Hind's Estate, 183 So far as it served to throw light on that sub

Pa. 260.

Marshall's Estate, 138 Id. 285.

Perry on Trusts, sec. 475.

Anewalt's Appeal, 42 Pa. 416.

Swift's Appeal, 87 Id. 502.

Peterson's Appeal, 88 Id. 397.

Jones v. Caldwell, 97 Id. 42.

Rice . Jackson et al., 171 Id. 90.

Sadler's Appeal, 87 Id. 154.
Persch v. Quiggle, 57 Id. 247.
Kerns v. Piper, 4 Watts, 222.

ject, it was admissible to show the nature of the paper. This allegation of fraud became the principal question at issue. There is no doubt that the note held by the Bank of North America was a personal obligation of E. DeRoy. The addition of Tr. to his name was not of itself sufficient to qualify his personal liability. The rule is that the name of the principal intended to be charged must appear on the paper. If it be intended to Whether taken as the note of De Roy, trustee, charge a maker or endorser in a representative or DeRoy in his individual capacity, this was then capacity, this must be indicated with reasonable a mere personal obligation of E. DeRoy, and certainty, so that subsequent purchasers and enthe judgment against him upon it, could not bind dorsers may be informed of the fact: Roberts the trust estate, in his hands, and the sheriff, up-| v. Austin, 5 Wharton, 313; Tassey v. Church, on making levy, and being notified in writing, 4 W. & S. 346; Sharpe v. Bellis, 61 Pa. 69: Seythat the property levied on was the estate of Mrs. fert, McManus & Co. v. Lowe, 7 WEEKLY DeRoy and her children, and not the property NOTES, 39. This rule does not preclude proof of E. DeRoy, and in disregard of said notice, that the note was given by an agent or trustee proceeded to sell the property, was a trespasser in the business of the agency or of the trust esand liable in damages.

tate when the action remains between the parties to the contract: Wanner v. Emanuel Church, 174 Pa. 466. It is designed for the protection of innocent purchasers and endorsers.

July 29, 1898. SMITH, J. Specifications 1, 2, 3, 4, 5, 6, 7 and 9 are not in accordance with our rules of Court. The first raises an objection to It is not contended in the present case that the