66 whole amount; but if not money, appli- | securities representing money. Applicacation shall be made to the orphans' tion has been made to the Orphans' court having jurisdiction of the accounts Court, not "to make an apportionment," of the executors or administrators to because the case does not require it, and make apportionment, if the case requires if not for the distribution of "money it, of the sum to be paid by such lega- for such "order as equity shall require." tees, and for such further order relative If the life-interest was to a lineal dethereto as equity shall require." scendant, an apportionment might be necessary. If that which has been done was exactly fair, mathematically accurate, and as equity shall require, can more be asked? By the sixth section the tax shall be retained upon the whole amount," which in this case is $18,314.32. Five per cent of this is $915.72, which is the whole tax, including that on life-interest and remainder, and is what has been awarded. This is $20.75 more than it would have been had there not been an unnecessary general appraisement of the estate or if it had been appealed from and the amount thereof reduced to the actual balance. Because of the tax, the life-beneficiary's income is inextricably reduced $45.78 yearly, which is five per cent of $915.72, the amount by which the principal is reduced by the payment of the tax. Assuming that there should have been an apportionment, we find by reference to the Carlisle tables that the life-beneficiary's expectancy of life, assuming his age now to be fifty years, is twenty-one years, and its value $11,739.47, the tax on which would be $586.98, making the value of the interest in remainder the difference, or $6,574.84, and the tax on it $328.74. Five hundred and eighty-six dollars and ninety-eight cents at compound interest for twenty-one years, which would be 178.5963 per cent, will amount to $1,635.30, or $45.78 a year. The remaindermen will receive $328.74 less of principal by reason of the payment of the tax in the beginning, but will be obliged immediately upon coming into possession to pay out of it $915.72, which would be neither a loss nor a gain to either the Commonwealth or them, for $328.74 at compound interest for twenty-one years will make exactly $915.72. (Interest has been computed at five per cent.) Wherein has lifebeneficiary, remainderman or Commonwealth been injured, and what would be This section, which seems to have been intended for cases such as this, the exceptants contend cannot be applied. What to them appears an insurmountable barrier is the result of a misreading of the section, and to make it so appear it was necessary to disregard punctuation and arbitrarily convert nouns into adjectives, take a class from a categorical system, make it qualify other classes of the same system, and thus cancel itself. It was read as if the words "upon a condition or contingency" qualified “for life," "for a term of years and "for any other limited period." That is, if a legacy was given for life, for a term of years or for any other limited period upon a condition or contingency, then only shall it prevail. The error of this is self-evident, and, therefore, does not admit of demonstration. Each class of the system is separated by a comma. That a legacy given upon a condition or a legacy given upon a contingency is as much subject to the provision of this section as one given for life, is too apparent for controversy, and to exclude such would be a nullification of a legislative enactment. To most people this would be apparent if the last class had been put first. It is not likely that the mistake would have been made if the section read: "If the legacy subject to collateral inheritance tax be given upon a condition or contingency, for life, or for a term of years, or for any other limited period, if the same be money, the tax thereon shall be retained upon the whole amount." The Act also says: "If not money, application shall be made to the orphans' court having jurisdiction of the executors or administrators to make an apportionment, if the case requires it, of the sum to be paid by such legatees, and for such further order relative thereto as equity shall require." Money is distributing, with the exceptants' gain or loss if the third | section could be applied. How is it possible for any collateral legatee to be injured by the prompt payment of the tax, whatever his interest or however the bequest may be divided, and would not any other practice distort the Act and violate the policy of the law. But let the sixth section of the Act be construed in any way anyone chooses. Let "such further order relative thereto as equity shall require" be strictly applied to life-estates, conditional or contingent estates, or to conditional or contingent life-estates, or let it be expunged, what is the situation? The tax from which there can be no escape has been ordered to be paid. It is to be paid out of a fund which is subject to the tax. It is as small a tax as will meet the requirements regardless of the fund from which it is paid, by whom it is paid, or when it is paid. No one is injured, inconvenienced or deprived of anything. It is exactly just and comprehensively equitable. No one is in a position to say that he has been wronged. If there has been no wrong, there is no remedy. The nothingness of nothing cannot be exploited. The exceptants have nothing from any point of view on which to stand. Disregarding this section, it is the duty of the executor to pay the tax and for the Court to award it, because it is a collateral bequest-nothing did nor could change it into anything else. A division of its enjoyment worked no change in its character nor did it alter the toll attached to it. A gift to a wife for life, with the remainders to brothers and sisters, is not a collateral bequest. Part of it is, and for the part the third section is provided. We are not passing on the question as to a devise of real estate, but a stronger argument confirmative of the construction given the third section of the Act can be offered as to it than has been as to personal property. In none of the cases cited did the question of jurisdiction arise, and therefore they are not in that respect analogous, but they have dealt with section three as operated by section twelve of the Act. One of the latest decided is Henris's Estate, 53 Sup. Ct., 633. In this case only the life-beneficiary's interest was subject to the tax, the remainder was exempt; therefore, it is not pertinent. In Commonwealth's Appeal, 127 Pa., 435, only the remaindermen were taxable; the same in Coxe's Estate, 193 Pa., 100. Brown's Estate, 208 Pa., 161, has not been reported so that we can understand it, but owing to a similarity between the words of the will in that case and those of the will in this one, it might be argued that it was the intention of the testator that the collateral tax should be paid out of the income, as was ordered in that case, because the testator so intended it. But what would be the purpose of it? If only the tax owing by the life-beneficiaries was to be paid out of the income, we fail to see why another should complain. Of course, if it referred to the whole tax, there was something to disturb the life-beneficiaries, for the remaindermen would be relieved. This would be such an unusual condition that hardly would such intention have been gathered from the testator's words, and it is not understood that it was. If the income of the estate in that time was insufficient to pay the tax on the lifeinterests, could the Act be temporarily annulled or the Commonwealth indefinitely held off until the income had accumulated to meet the tax, because the testator intended the tax to be paid out of the income. The Court do not respect the directions of testators who specifically declare their intention to have income accumulated beyond the statutory period, and not much importance, we imagine, would they attach to a testator's intention if it conflicted with the Act "for the better collection of collateral inheritance tax." It can be inferred that in Brown's Estate a feature was the payment of the whole tax on the lifeinterests, and that there was ample income with which to do it, and therefore the intention of the testator was a negligible quantity; or a question may have been raised as to the payment of the tax on other legacies, and it was not only one as to life-beneficiaries and remaindermen. Mr. Justice Mestrezat con cludes the opinion in Brown's Estate | inheritance tax assessed on the value of which conclusion our mathematical calculation and finding are consistent. The exceptions are dismissed and the adjudication is confirmed absolutely. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster County, October Term 1914, No. 36. Coyle & Keller, for rule. January 9, 1915. Opinion by LANDIS, that the defendant is indebted to them in The plaintiffs in their statement claim the sum of $170.46, being the balance due which is thereto attached, and in response on a book account, an itemized copy of to the same, the defendant has filed an affidavit of defense, in which he does not but he, in a general way," denies that the dispute any of the items in the account, prices charged in said account for said goods and merchandise were fair and reasonable and the goods so sold and de livered were reasonably worth the prices respectively charged for the same. Thereupon this rule was obtained for judgment for want of a sufficient affidavit of defense, and the case was submitted without argument. I do not see how it can be contended that such an affidavit is sufficient. The law is very plain upon the subject, and it would seem a mere waste of time and effort to attempt to elaborate upon the matter. A few illustrations appear to me to be all that is required. Thus, in Jenkinson v. Hilands, 146 Pa., 380, a defense was made that "the goods charged to the defendant were excessive in amount.” The Supreme Court said: "This is too vague. It impliedly admits that some goods were furnished, and, if the amount charged was excessive, the defendant should have specified the excess, so that the plaintiff could have judgment for the amount admitted to be due." "An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasion in the mode of statement, it will be insufficient to prevent judgment": Sprissler v. McFetridge, 37 Sup., 607. In our own case of Reilly Bros. & Raub v. Martin, 29 LANC. LAW REVIEW, 93 the affidavit of defense admitted the purchase and re ceipt of the goods, but averred that the prices to be paid were the usual and ordinary prices, whereas they were exorbitant and in excess of the market prices. It was held that the affidavit of defense was insufficient, in that it should have specified in what particular and to what extent they were exorbitant. The rule is now made absolute, and judgment is entered in favor of the plaintiffs for the sum of $170.46, with interest from May 14, 1914, making $177.16. Schock v. Mettfett. Sale-Lack of quality in goods-Resale -Repurchase. In an action for the price of lumber sold to but rejected by the defendant as not of the proper quality it is not error to charge the jury that if the lumber was of proper quality, the plaintiff properly resold it and credited the proceeds on his claim, and if it was not of the proper quality the defendant was entitled to set off against the plaintiff's claim the amount required to buy in open market lumber of the proper quality. Rule for new trial. C. P. of Lancaster County. November Term 1912, No. 28. John A. Nauman and IV. U. Hensel, for defendant and rule. Coyle & Keller, contra. January 9, 1915. Opinion by HASSLER, J. Three questions are involved in this case, which is a sci.-fa. on a mechanics' lien, only two of which need be considered. They are, first, what was the contract between these parties, and, second, did the plaintiff comply with his part of it in furnishing the kind and quality of lumber he agreed to furnish? The contract was not in writing. In compliance with a request from the defendant, accompanied by a list of the lumber wanted, the plaintiff made a bid, offering to furnish it for $3,091. Before the bid was accepted, according to the plaintiff's testimony, it was agreed that there should be a change in the kind of pine flooring and posts; that instead of No. 2 pine flooring, No. 2 common yellow pine flooring was to be furnished, and instead of locust posts, chestnut or cedar. When this change was made the price at which the plaintiff agreed to furnish the lumber was reduced from $3,091 to $3.000. The defendant's deny that these changes in the contract were made, but the jury found that they had been made, and as there is no complaint of our submission of this question to the jury, we must assume the fact to be as testified to by plaintiff's witnesses and found by the jury. The remaining question is whether the plaintiff furnished the kind and quality of lumber he had agreed to furnish. The defendant complains that we erred in submitting the question to the jury in two particulars. One in instructing the jury that if the lumber was the kind that was to be furnished according to the contract, then the plaintiff acted within his rights in selling what the defendant had rejected, and crediting the amount realized from that sale on his claim against the defendant. We think this is a correct statement of the law. The other is that if the lumber furnished was not in accordance with the contract, the defendant was entitled to set off against plaintiff's claim the amount which he was required to pay in the open market for lumber of the kind agreed upon to take the place of that furnished. We think this is a correct statement of the law, but even if this was error we do not think it is such of which the defendant can complain, as it is rather favorable to him than otherwise. We have examined our whole charge, and are not convinced that any error was committed in submitting the case to the jury, and we discharge the rule for a new trial. Jarrett v. McCaskey. An execution must follow the judgment and will be set aside where it is issued only against one defendant and the judgment is against two defendant's jointly. Rule to set aside execution. C. P. of Lancaster County. August Term 1914, Nos. 282 and 283. Fi.-fa.'s to November Term 1914, Nos. 37 and 38. John E. Malone, for rule. January 9, 1915. Opinion by HAS- | his old friend Blackstone, who never fails. SLER, J. The two judgments upon which the above fieri faciases were issued were entered against Donald McCaskey and John K. Trewitz jointly. The fi-fa.'s were issued against only one of them, Donald McCaskey, who now asks us to set them aside. The reason upon which he bases this application is that the fi.-fa.'s do not follow the judgment in that they are not issued against both defendants. In Troubat & Haly's Practice 1046 and Patton on Pennsylvania Common Pleas Practice 589, the rule is stated that the execution must follow the judgment and be against all of the defendants. In Shaffer v. Watkins, 7 W. & S. 219, it is said, on page 228, "If the judgment is joint then the fi.-fa. ought to be joint, because execution must ensue the nature of the judgment." Saul v. Geist, 1 Woodward 306; Mortland v. Himes, 8 Pa. 265; Sheetz v. Wyncoop, 74 Pa. 198, are other cases where the rule is similarly stated and applied. From this source it is gratifying to learn (III., 218) that a market is an "incorporeal hereditament," and so is subject to nuisance, aliter, liable to hurt, inconvenience, or damage; and moreover (I. 274) that its establishment and maintenance pertains to the King's prerogamarket can only be set up by virtue of tive, which necessarily implies that a the King's grant, either express or implied from immemorial usage and prescription. And since only sovereign power may establish and maintain a market, nothing less than sovereign power can discontinue it. This truth found the good citizens of Michigan, to their great comfort and happiness, when divers and sundry progressives of the city of Detroit sought market of that city, fronting on the Camto discontinue and divert the central pus Martius, which had been their resort and joy since the time Detroit was Cadillac's village. Then Taggart, not Tom, but Moses, came to their rescue as attorThe fi.-fa.'s were, therefore, improperly issued in that they do not follow the judg-ney general, and, by a well-framed informents in being joint, and we make abso lute the rule to set them aside. Legal Miscellany. Markets. BY HON. HENRY H. INGERSOLL. Promise to contribute to Case and Comment an article on " Markets" is as readily given as asked; but breach of such promise is not actionable, or, if so, damages are only nominal, since reasonable expectation of an abundant supply of material may not be indulged. If you doubt this, consult Britannica or Americana or the International Encyclopedia, or Glanville's Treatise, or Holmes' Common Law, or Sullivan's Business Law, and note the dearth. From these sources one gets nothing ancient or modern, general or technical, and so is inclined petere fontes. Bacon's Abridgment would surely enlighten if only it had such a title; but it leaves to the veteran lawyer 1 in re a bill in equity against the mation in re a bill in equity against the city, stayed the progress of this improvement. Thus it is written in the volume 71 of Michigan Reports beginning at page 103, wherein was stoutly and effectively maintained the ancient and wholesome doctrine that a market was not only to promote direct traffic and commerce and eliminate the middleman, but also to provide such victuals as people need (Bract. lib. 2, chap. 24), and for the preservation of public order and the prevention of irregular behavior (1 Bl. Rep., 580). The liberty, privilege, or franchise to hold a market was sometimes granted to the lord of a manor, but usually to a village or town; and the conduct thereof was prescribed in the grant, whereby was established not only the place, but the time, for holding the same. Usually they were kept once or twice a week, and upon days fixed (Bract. lib. 2, chap. 24), as in Rochester on Wednesdays and Fridays, and in Chatham on Tuesdays only. Rex v. Butler, 3 Lev. 220. But in London every day was Market day except Sunday and the principal feasts, viz., |