an action at law when the matter can be dis- tor bills and medicines in endeavoring to cure posed of in these proceedings. the said injury caused by defendant's negli This conclusion seems to be justified by Ma- gence and unskillfulness. That the said injury guire v. Heraty, 163 Pa. 381. In accordance with the foregoing we find that the plaintiff is not entitled to a decree for specific performance, but is entitled to recover from the defendant, Florence K. Bradshaw, as damages for failure to complete his contract of December 14, 1899, the sum of $1,102, with interest thereon from the 24th day of January, 1900. And it is further order that the said Florence K. Bradshaw pay the costs of these proceedings. Let a decree be drawn accordingly. so caused by plaintiff has not been, and, as defendant is informed and believes, never will be entirely cured, wherefore defendant is injured and has sustained damages in the sum of $5,000, and defendant will ask for a certificate for said amount in his favor upon the trial of this cause. Defendant avers that he is not indebted to said plaintiff in the sum of $143 or any sum whatever." A supplemental affidavit of defense set forth "that plaintiff was negligent, unskillful and guilty of malpractice in this case, to wit, in attendance upon defendant's wife in child-birth, For plaintiff, Wm. Macrum. For defendants, W. A. Challener and James and that by reason of his unskillfulness and negH. Payne. BINGAMAN v. LEWIS. ligence in his attendance upon and treatment of defendant's wife and child, caused great physical injury, pain and suffering to defendant's wife and child, and caused defendant to expend Affidavit of defense-General and vague aver-large sums of money, to wit, the sum of two ments therein. hundred ($200) dollars for doctor bills and medi To a suit by a doctor for services rendered and medicines in endeavoring to cure the said injury cines, the affidavit of defense made the general averment that the charges were unreasonable and more than the usual charges. It then alleged that the charge of $4 a visit was more than such visits were worth. The affidavit charged unskillfulness and negligence in treatment without giving particulars, that defendant was thereby put to additional expense and the defendant's wife was permanently injured, and asks damages in the sum of $5,000. Held, that the affidavit was insufficient. It was too vague and general and not in accordance with the rules of court. caused by plaintiff's negligence and unskillfulness. That the charges attached to plaintiff's statement are unreasonable and more than the usual charges of physicians, and that the charges marked visits in Exhibit ‘A', attached to plaintiff's statement, to wit, the sum of four ($4.00) dollars per visit, are more than such visits were worth in this case, and that the item marked 'visits and remedies and destruction' for which is charged the sum of seven ($7.00) No. 443 Oct. T, 1899. Rule for judgment for dollars is more than such services were worth." want of a sufficient affidavit of defense. Assumpsit by the plaintiff, a physician, for medical services and medicines. Plaintiff attached to his statement a copy of his book entries of charges made against the defendant and averred that the charges were fair and reasonable and the ordinary charges of physicians for such attendance and medicines. Plaintiff entered a rule for judgment for want of a sufficient affidavit of defense. For plaintiff, Dalzell, Scott & Gordon. Opinion by WHITE, P. J. Filed March 13, 1900. The original affidavit of defense was so vague and indefinite it was wholly insufficient, under The affidavit of defense was as follows: our rules of court. It was so stated by the court "Defendant avers that he is informed and at the argument on the rule. At the close of believes that Exhibit 'A', attached to plaintiff's the argument defendant asked leave to file a statement, is not a true copy of plaintiff's books supplemental affidavit of defense, which has of original entry and that said charges are ex- since been done. It is nearly as defective as tortionate and unreasonable and more than the the first. The plaintiff filed a copy of his book ordinary and usual charges of physicians for entries, and in his affidavit said that the charges such services and more than said services were "are fair and reasonable, and the usual and ordireasonably worth. That said plaintiff by rea-nary charges of physicians for such attendance son of his unskillfulness and negligence in his and medicines." In his affidavit the defendant attendance upon and treatment of defendant's | makes the general averment that the charges wife and child, caused great physical injury, "are unreasonable and more than the usual pain and suffering to defendant's wife and charges of physicians." This averment is too child, and caused defendant to expend large general, under our rule, because it does not sums of money, to wit, the sum of $200 for doc- | specify any items. He then says the charges of $4 per visit "are more than such vlsits were worth," but does not deny they are the usual and ordinary charges of physicians. It is simply an expression of his opinion as to their worth. The same remark is true as to the charges for visits and medicines, $7. There is no denial but that they are the usual and ordinary charges of physicians, but he says it "is more than such services were worth." The affidavit charges "unskillfulness and negligence in his attendance and treatment" of defendant's wife and child, but gives no particulars, or statement, of such unskillfulness or negligence, which was required under our rules, so that the plaintiff might know what the charges were, and be prepared to meet them. He is left wholly in the dark. Defendant says he spent $200 for doctor's bills and medicines "in endeavoring to cure the said injury caused by plaintiff's negligence and unskillfulness," but does not state, or give any intimation of, what the "injury" was. After these vague and indefinite averments, the defendant concludes by claiming $5,000 damages, and asking for a certificate for that amount. This is simply a general and sweeping affidavit of defense, not in conformity with our rules of court. Rule absolute. Court of Common Pleas No. 1, ALLEGHENY COUNTY. MOONY v. THE CITY OF PITTSBURGH. Damages awarded property holders for opening of streets under Act of May 16, 1891– Right of property owner to interest. Property holders who are awarded damages for the grading of streets abutting their property, under the Act of May 16, 1891, are entitled to interest from the final confirmation of the viewers' report. to the laying out, opening, widening, straightening, extending or vacating streets," etc., approved May 16, 1891, P. L. 1891, p. 75, and its several supplements, and on said petition the said court did, on said 2d day of September, 1899, appoint Joseph Abel, J. B. Heard and Daniel McWilliams as viewers for the purposes aforesaid, who proceeded to discharge their duties as such viewers, and, on December 9, 1899, prepared their report, showing the costs, damages and expenses and assessment of benefits for the grading of said Lang avenue between the points above recited, which said report was filed in said court January 13, 1900, and, on the same day, confirmed nisi, to become absolute in thirty days from that date, unless exceptions thereto were filed or appeals taken in the meantime. In said report the said William R. and E. G. Moony were awarded damages done to their property by the grading of said Lang avenue to the amount of ten thousand five hundred and sixty ($10,560.) dollars No exceptions were filed and no appeal taken from the said report, either by the plaintiffs herein or the city of Pittsburgh, as to the damages therein awarded to the plaintiffs, and said report, as to plaintiffs' damages, was confirmed absolutely by said court on February 17, 1900. All of which said proceedings are entered in said Court of Common Pleas No. 3, at No. 187 November Term, 1899. On the 23d day of February, 1900, the plaintiffs made a written demand on the controller of said city of Pittsburgh for the amount of damages so awarded to them, as appears by the paper hereto attached marked Exhibit “A," and payment thereof was refused. On the 23d day of April, 1900, plaintiffs received notice from said controller to call at his office and receive a warrant for their said damages awarded to them as aforesaid, and, in response thereto, William R. Moony, one of the plaintiffs, called at the office of said controller, and was informed by him that he would issue his warrant to the plaintiffs for the principal sum of said damages, to wit, $10,560, but declined to pay interest thereon from the date of the final confirmation of said viewers' report, to wit, February 17, 1900, or any interest whatever on said award, and plaintiffs declined to accept the same, and demanded interest thereon from the date of the final confirmation of said viewers' report, viz., February 17, 1900. No. 305 June T., 1900. Case stated. And now, April 28, 1900, it is hereby agreed by and between the parties to the above suit that the following case be stated for the opinion of the court in the nature of a special verdict: On the 2d day of September, 1899, the city of Pittsburgh, the defendant above-named, presented its petition to the Court of Common Pleas No. 3 of said county of Allegheny, praying for the appointment of viewers to ascertain the costs, damages and expenses and assess the benefits for the grading of Lang avenue from the Pennsylvania Railroad to Monticello street, It is also admitted that the said city of Pittsin the 21st ward of said city, under and by virtue | burgh collects interest on such sums assessed of an Act of Assembly of the Commonwealth by said viewers against property specially beneof Pennsylvania entitled "An Act in relation | fited by said grading of Lang avenue as were not paid within thirty (30) days from date of final confirmation of said report, to wit, February 17, 1900. that the appeal was not taken within the time limited by law. It is claimed that this case is ruled by the opinion of this court in the case of Reed v. Palmer, No. 93 Dec. T., 1896 [44 PITTSBURGH LEGAL JOURNAL, 310]. The cases, however, are entirely different. In Reed v. Palmer the appeal was regularly taken and the bail entered before the magistrate in due form. The appeal in that case was dismissed for the reason that it was not filed in this court within the time required by law. At the time the bail was en It is also admitted that $28,229.30 of the amount assessed by the viewers against property specially benefited by said grading of Lang avenue was collected by the said city of Pittsburgh prior to March 19, 1900, on which sum no interest was collected by the said city of Pittsburgh, and such sum was more than sufficient to pay the claim of plaintiffs herein, and was subject to their claim, but no notice was given to the said plaintiffs by the said city of Pitts-tered before the magistrate the appeal was good burgh that there was sufficient money collected to pay their said claim until April 23, 1900. If the court be of opinion that the plaintiffs are entitled to receive from the city of Pittsburgh interest on the amount awarded to them by said viewers, viz., $10,560, from the date of final confirmation of said report, or from any other date, then judgment to be entered for the plaintiffs accordingly, but, if the court be of opinion that plaintiffs are not entitled to receive interest on said award, then judgment to be entered for plaintiffs for the amount awarded to them by said viewers, viz., $10,560, without interest. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein. For plaintiffs, L. B. D. Reese. For defendant, Clarence Burleigh. Opinion by STOWE, P. J. Filed May 3, 1900. Being clearly of opinion that the city is liable for interest on the amount of damages awarded by the viewers from the final confirmation of the report by the court, judgment is directed to be entered for plaintiffs for $10,560 with interest from 17th February, 1900, to wit, $10,692 and costs. (See Weiss v. South Bethlehem, 136 Pa. 307.) DAVIS v. MERCANTILE TRUST COMPANY. Appeals from alderman—Liability of bond. In an action upon a recognizance of bail given for an appeal from the judgment of an alderman, a rule for judgment will be dismissed where it appears that the appeal was not taken within the time required by law. In such a case there is no appeal to which the obligation of the defendant can attach. No. 530 Dec. T., 1899. Rule for judgment. Opinion by SLAGLE, J. Filed March 3, 1900. The action in this case is upon the recognizance of bail for an appeal from the judgment of a magistrate. A transcript was filed in Common Pleas No. 3 by which court it was stricken off for the reason and only became invalid by subsequent default The rule will therefore be discharged. Orphans' Court, ALLEGHENY COUNTY. In re Estate of JOHN GRAHAM, Deceased. Trust estate- When accretion of personal property is considered corpus of the estate and not income. The premium received from sales of bonds secured by mortgage, in which trust funds were invested, is an accretion to the corpus and not income distributable to legatees for life. Stocks of the Monongahela Navigation Company, ap praised at $42 per share, were part of a trust estate. The Government took the property of the corporation, paid it the value of its franchises, locks and dams, as fixed by viewers, and the trustee received $98 per share on the stock. Held, that the excess above the appraised value was corpus and not distributable as income to the legatees for life. No. 112 March T., 1900. Audit of trustee's account. OVER, A. J. John Graham died testate in 1869, having made the following disposition of his residuary estate: "8th. As to all the rest and residue of my estate, real, personal and mixed not hereinbefore specially devised or bequeathed, I give, devise and bequeath the same to my said exeeu. tors and trustees to be held by them and their successors for and upon the following purposes, uses and trusts, viz: That they will receive and collect the rents, profits and dividends and income of my said residuary estate, with power and authority to sell the same or any part thereof, if they or a majority of them deem it best so to do, conveying such portion thereof as may be realty in fee-simple and to execute and deliver all and any deeds or other instruments of writing that may be necessary for that purpose, and to reinvest the proceeds of any such sale or sales to be held by them upon the same uses and trusts in such property or securities as they may deem safe and for the advantage of my estate, and I direct that my said executors and trustees shall not be held responsible for any losses that may arise to my estate out of investments made by them in good faith, and I further direct that my said executors and trustees and their successors shall use and apply the income yielded by my said residuary estate as follows, viz., they shall semi-annually divide said yearly income into three equal parts or shares, one of which shall be paid by them into the hands of each of my said sons, Stafford, Alexander R. and John, to be used for the support, maintenance and education of themselves, their wives and children and for no other purpose, and in case of the death of any of my said sons during the continuance and existence of this trust in regard to said residuary estate the strare payable to him semi-annually for the purposes aforesaid, shall be paid, onethird thereof to his widow and two-thirds thereof to his children, but if he shall have left no widow, then the whole shall be paid to his children and issue of deceased children, if such there be, but if he have left no children or issue of children then it shall be paid to the children of my other sons then living and the issue of such as may be deceased in equal shares in the manner herein before provided, the issue of deceased children in all cases taking together the same share as the deceased child would have taken if alive. "9th. I further direct that this residuary trust shall cease and terminate when all my said sons and their present wives, Martha, Annie and Cecilia shall have died, and I direct that my then acting trustees shall then, viz., after the death of all of my said sons and their said wives, divide and distribute the said residuary trust estate among the children of my said sons then living, and the issue of such of them as may be then deceased, equally in the manner herein before directed, that is to say, the issue of a deceased child taking the same share as the parent would have taken if alive at that time, and to execute all such deeds of conveyance or other instruments of writing as may be necessary for the purpose of making said division and distribution." William Roseberg, the accountant and surviving trustee, on March 27, 1896, sold part of the residuary real estate for fifty-five thousand dollars, taking a bond and mortgage to secure the payment of the purchase money and interest. On the 24th of July, 1897, he accepted in payment of the principal debt of said mortgage fifty-five bonds of the Fox Pressed Steel Company, dated the 3d of April, 1897, payable the 1st day of May, 1917, with lawful interest payable semi-annually, free of all taxes, and at the same time he purchased at par with a part of the proceeds of the sale of certain other residuary real estate, twenty bonds of said company, all of them being secured by mortgage. These bonds were a part of an issue of 150 bonds of $1,000 each, with a condition that the company should, commencing with the year 1898, redeem eight of them annually, those redeemed to be determined by lot. On the 24th of December, 1897, he sold or surrendered the said bonds at a premium of $17,750, and reinvested the proceeds of said sale, to wit, $92,750, in other securities which yield interest at the rate of five per cent. per annum. There were eight hundred and ninety-eight shares of stock of Monongahela Navigation Company included in the trust estate, appraised at $42 per share. By virtue of an Act of Congress of June 3, 1896, proceedings were instituted in the United States courts for the condemnation of the franchises and property of the company, and on July 2, 1897, the report of the viewers was confirmed and judgment entered thereon for $4,056,973, which amount was paid to the company. The trustee has received $98 per share on 898 shares held by him, being $50,288 in excess of the appraised value. No part of this amount represents surplus earnings or income. In his account he claims credit for this excess and the premuim received on the Fox Pressed Steel Company bonds as part of the corpus, to which exceptions are filed by the legatees for life, it being claimed that both should be distributed to them as income. OPINION. Filed May 7, 1900. Although a trustee may be ever so pru. dent, there is more or less risk attending his investments, a trust fund cannot be absolutely protected, and there is no assurance that the original amount invested in the bonds of the Fox Pressed Steel Company will be in the hands of this trustee at the expiration of the the trust, for distribution to the legatees in remainder. A trust fund is its own insurer against all risks except the negli gence of the trustee, and especially so here, as the trustees are not to be held responsible for any losses that might arise out of investments made by them in good faith, and have great discretion in making investments. The hazard of the risk is borne by both the legatee for life and in remainder, for if there be a diminution of the corpus by reason of unfortunate investments the income as well as the corpus is thereby depleted and the loss falls on both, the former receiving less income and the latter less corpus. If, then, in case of a loss by reason of an unfortunate investment, it falls on both the legatees for life and in remainder, it seems but equitable that if there be a profit arising from the sale of a trust security, they should both participate in it in the same manner they would bear a loss, the former receiving more income from the increased corpus and the latter more corpus. If the profit in such a case be given as income to the legatee for life a case might arise which would be disastrous to the legatee in remainder whilst the former would be greatly benefited. To illustrate: Suppose that this estate consisted of ten thousand dollars invested in these bonds; that they were sold for twenty thousand dollars and the premium of ten thousand dollars distributed as income. The next investment might prove unfortunate, the whole of the original corpus be lost, and the legatee in remainder receive nothing, whilst the legatee for life would have received absolutely the amount of the original investment. As a loss on a trust investment is deducted from the corpus, on the other hand, if there be a profit surely it should be held to be an accretion to the corpus and part of it. In Hill on Trustees, page 175, it is said: "That any extraordinary bonus or addition to the usual annual income of stock or other property which is held in trust for one for life with remainder | over, must be treated as capital and added to the principal fund. | chase of other securities yielding as high and as certain a rate of interest. Another is that the fund takes the place of the original real estate as to which if the life tenants take more than the annual product they would commit waste, and from whose enhancement in value they would derive no profit beyond a possible increase in rental." Hubley's Estate was also referred to, distinguished and approved in Thompson's Estate, 153 Pa. 332, where it was said that "it was the case of an increase in the value of a trust investment, not of the income from it." In Van Vleck v. Lounsberg, 34 Hun. 569, where executors purchased mortgaged premises on the foreclosure of their mortgage, and afterwards sold the property at a profit of $1,300, it was held that the profit belonged to the principal of the estate. Where the value of real or personal estate held as an investment increases from natural causes, such increase is principal and goes to the remainder-man: Lawrence's Estate, 26 N. Y. 238; In re Townsend, 3 Redfern, 220; In re Vedder, 40 N. Y. 119. The general rule upon the subject of increase in value of corpus held by trustees is well stated by the Surrogate In re N. Y. Life Insurance & Trust Co., 87 N. Y. 382: "The loss or gain in the value of securities purchased by the trustee in the exercise of his sound discretion should go to the diminution or accretion, as the case may be, of the capital and not to the income, unless a contrary intention must be inferred from the trust instrument." In Accounting of Gerry, 103 N. Y. 445, it was held by the court that where an investment was made by trustees in securities other than those named in the will, and surplus over the original amount of the investment was realized by the sale of the securties after the death of the life tenant, the accretion was a part of the principal and not income, and the same rule was applied in McLouth v. Hunt, 154 N. Y. 179. "A rise in the value of trust investments, like a rise in the value of lands held in trust, has always been regarded as an accretion of the In Gray v. Darlington, 15 Wallace 63, it was principal, and therefore belonging to the re- held that where bonds of the United States mainder-man:" Hubley's Estate, 16 Phila. 327. were sold by the owner after being held by him This case was affirmed by the Supreme Court four years at an advance of $20,000 over their at No. 355 January Term, 1884, and is on all cost to him, that this amount was not taxable fours with the one at bar. There land had as gains, profits or income of the owner for the been sold to the city of Philadelphia, the pro- year in which the sale was made, under the ceeds had been invested in municipal bonds of revenue law, Mr. Justice FIELD, delivering the the city and they had been sold at a premium. opinion of the court, said: "The mere fact that It was held that it belonged to the remainder- property has advanced in value between the man and not to the life tenant, Judge ASHMAN date of its acquisition and the sale, does not ausaying: "One proof that the premium is an ad-thorize the imposition of the tax on the amount junct of the capital is that it will be required in of the advance. Mere advance in value in no addition to the par value of the loans for the pur- sense constitutes the gains, profits or income |