for the making of such an agreement. It is clear that neither party meant that plaintiffs were to be bound to come in to whatever might be agreed to by the creditors, and that not all of them, as is averred in the supplemental affidavit. This very looseness shows that what passed on either side could not have been meant as a bargain, binding on the plaintiffs; though at the time, it is evident, without mutuality, and without that general accord of creditors, which supplies the valuable consideration upon which alone rests the validity of a composition.

Rule absolute.

Whereupon the defendants took this writ of error.

The opinion of the Court was delivered by

BLACK, J.-We affirm the judgment for the reasons given in the Court below.

Judgment affirmed.

In the Supreme Court of Pennsylvania.

SCHAEFFER'S APPEAL. SCHOLL'S ESTATE.

(Vol. IV., p. 756, 1857.)

1. A compensation of about three per cent. on an estate of $7,273 98, the greater part of which consisted of the proceeds of realty, held sufficient. 2. An executor cannot be allowed credit for payments made for a debt of his co-executor, even though the debt had been contracted in paying the

debts of their testator.

3. An executor who is merely trustee to sell the real estate after the expiration of a life estate is not entitled to credit for sums expended in repairs ; nor for payment of interest and taxes which the tenant for life was bound to pay; nor for payment of physician's bills and funeral expenses of the testator's widow, incurred after the testator's death.

APPEAL from the Orphans' Court of Northampton County. Schaeffer, who was co-executor with the widow, of the estate of Peter Sholl, deceased, filed an account of the estate on his own behalf alone. After reference to an auditor and report filed, the Orphans' Court allowed the executor upon the personal estate, which amounted to $990 41, and upon the proceeds of real estate

amounting to $6283 57, a compensation of $227 64. The accountant claimed credit for $110 paid for a debt contracted by his co-executor to raise money to pay a matter for which the testator had been security. The money raised was handed over to him by his co-executor, but he did not charge himself with the amount in the debtor side of his account. He also claimed credit for some $1300 expended for repairs upon real estate which was left to the widow for life, and for payments made for interest and taxes, but the credits were disallowed. The Court also disallowed credits claimed for physician's bills and funeral expenses of the widow of testator, paid by the accountant.

Schaeffer took this appeal, and assigned for error that the Court did not allow him greater compensation, and disallowed the credits claimed.

The opinion of the Court was delivered by

LOWRIE, J.-We see no sufficient reason for interfering with the amount of compensation found by the Orphans' Court for the services of this executor. It is very clear the credit claimed for the payment of debts of his co-executor were properly stricken out, even though those debts had been contracted in paying the debts of the testator.

There were credits claimed for about $1300, of repairs to the estate; and these were properly disallowed, for the accountant was not such a trustee of the estate as to entitle him to make any such repairs, he being merely trustee to sell the land after the termination of the widow's life estate. Moreover he never did make the repairs, but they were made on account of his co-executrix, the tenant for life, and were her debt.

In relation to the other errors, we find no facts stated in the auditor's report to sustain them. There seems to have been interest and taxes which the tenant for life was bound to pay, and we cannot discover that any necessity imposes the payment on the accountant. Certainly he was not bound as executor for the funeral expenses and physician's bills of the testator's relations incurred after the testator's death.

The parties have allowed themselves very little chance of a satisfactory review of this case on this auditor's report; for it

does not state the facts upon which the decision of the disputed items depend, and no exception has been taken to this defect so as to entitle us to refer it back for correction. It would be well for all auditors to pay some attention in the performance of their duties to the ordinary rules of their office, collected in Mengas' Appeal, 19 State R. 221.

Decree affirmed at the appellant's costs.

In the Supreme Court of Pennsylvania.

SMITH V. COLUMBIA INSURANCE COMPANY.

(Vol. IV., p. 756, 1857.)

Smith v. The Columbia Insurance Company, 5 Harris 260, explained and approved.

CERTIFICATE from Nisi Prius.

The facts are given in the report of the case when it was before the Court on a former occasion, 5 Harris 260. Upon the second trial, the plaintiff called a number of witnesses to show that he had paid an outside premium for the insurance. The learned judge who tried the cause (Knox, J.), instructed the jury that upon the whole case, their verdict must be for the defendant. The plaintiff took this writ of error.

The opinion of the Court was delivered by

LOWRIE, J.-It seems to us that all the principles of this cause were fully discussed and announced in the opinion of this Court at the time when it first came up before us. We think those principles are correct, and we do not see how we can state them more clearly and justify them more completely than we have done.

It seems to be supposed that in that opinion, we threw open the question of interpretation of the policy to the influence of parol evidence, and it was sought to bring this influence to bear on the second trial; but we do not discover any sufficient grounds

for the supposition. The interpretation is so very plain, that we can hardly conceive of any view of it but one that would not be directly contradictory of the express words of the policy.

Judgment affirmed.

In the Supreme Court of Pennsylvania.

BROWN ET AL. v. SPALDING.

(Vol. IV., p. 764, 1857.)

A., owning lands upon the north side of a creek, in 1841 built a mill and erected a dam across the stream, abutting it upon the south side upon lands of B., who made no objection, although he lived in full sight of it, and frequently passed the men at work upon it. In 1843, A. conveyed the mill property to C., who built a new dam and repaired the mill. B. still lived in the same house, and his son lived near his father in sight of the dam. The new dam was built according to the advice and suggestions of B., to prevent the water washing his bank below. C. had no notice that the son claimed any interest in the land on which the dam abutted, although he passed the place constantly, and conversed with C. and his workmen. In 1845 the son became entitled to the possession of the land on which the dam abutted, under an agreement with the purchaser at a sheriff's sale made in 1844 under a mortgage given by B. in 1835. Without the right to have the dam across the creek, the mill was useless. In 1854 the son, without any notice to C. to remove the dam, brought ejectment for the land on which the dam abutted and overflowed by its erection. Held: that even if B. had granted an express license to erect the dam, it would have been extinguished by the sale under the mortgage, C. could have no claim under any implied license from him; and that no license could be implied from the fact of the son's living and constantly passing in sight of the dam; and that C., having given no evidence of an express license from him, or of his own title to the land on the side of the creek where the mill was erected, must be considered as being fully acquainted with his rights, and, therefore, the son was entitled to recover.

ERROR to Bradford County.

Ejectment. In 1841, O. W. Dodge owned lands upon the north side of Towanda Creek, upon which he built a mill, erecting a dam which extended across the creek and abutted upon the south side. Some twelve years before this, W. B. Spalding, the father of the plaintiff (defendant in error), went into possession

of the lands on the south side, upon which the dam abutted, cleared them, and remained in possession up to 1844. When the dam was built he lived within sight of it, about a quarter of a mile distant, but made no objection to the dam, although he often passed the men at work in building it. In 1843, Dodge conveyed the mill property to the defendants (plaintiffs in error), who in 1844 put in a new dam (the old one having washed away), and repaired the mill. W. B. Spalding still lived in the same house which he occupied when the dam was built; and Ezra, the plaintiff, lived in a house of his father's at the same place and in full view of the dam. Ezra and his father worked the place that season, and defendants had no notice that plaintiff claimed any interest in the land on which the dam abutted, although he passed the place constantly and conversed with the defendants and their workmen. The new dam was built according to the advice and suggestion of W. B. Spalding, in such a manner as to guard against washing away the south bank below the dam. The defendants went to an expense of some $250 in putting in the new dam and repairing the mill. In 1845, Ezra Spalding, the plaintiff, became entitled to the possession of the lands on the south side of the creek, including the tract in dispute. This possession was obtained by virtue of an agreement made with the purchaser of the property at a sheriff's sale in 1844, under a mortgage given by W. B. Spalding, his father, in 1835. In 1854, plaintiff, without any previous notice to defendants to remove the dam, brought this action to recover possession of the land covered by the end of the dam and overflowed by its erection. Without the right to maintain the dam, the mill was entirely worthless. Upon the trial defendants offered no evidence of title; but relied solely upon acts and conversations of the Spaldings, as establishing a license to defendants to erect the dam, on the faith of which license they had made expenditures.

The learned judge (Wilmot, P. J.), instructed the jury to find for the plaintiff, whereupon the defendants took this writ of error and assigned the charge of the Court for error.

The opinion of the Court was delivered by

LEWIS, C. J.-The acts and conversations of Wm. B. Spald