ship like a parcel of drowning rats, but imperilled their private fortunes in an effort to keep it afloat. Under such circumstances it would be an act of gross injustice to hold them liable for the frauds of others, in which they had not participatedof which they had no knowledge and which have only been brought to light with the aid of experts. We must measure this transaction by the light which these directors had at the time the transaction occurred. It would be unfair to judge them by the calcium light which has been turned on for six years, and which has enabled us to trace at last the sinuous path of Riddle and his confederates in crime, and the means by which this bank has been robbed and plundered. We are of opinion that the Master and the Court below were right in their conclusion, and the decree is affirmed upon the appeal of the assignee, and the appeal dismissed at his costs. APPEAL OF HUTCHINSON ET AL. that the hands of these directors are stained by fraud. The bank was wrecked by its president with the cashier and some of the clerks aiding and abetting. It was adroitly done, so far as the means were concerned, and it was concealed wholly from the directors. False entries were made in the books, and false accounts or accounts with fictitious persons were opened so as to hide the theft. The reports of the bank's condition, made by the president to the directors from time to time, showed it to be in good condition, while in point of fact it was honeycombed with fraud and its assets squandered in wild speculations. It may be asked, why did not the directors discover this by an examination of the books? The answer is, that, if they had examined every book in the bank with a single exception, they would not have found the fraud. That exception is the individual ledger. All the frauds were dumped into this book, and appeared nowhere else. The individual ledger contains the accounts of the individual depositors, and this book by the rules. of a large majority of the Pittsburgh banks, the directors are not allowed to see. This is a rule of policy on the part of most city banks, and the reason for it is, at least, plausible. A director largely engaged in business, may have a number of rivals in the same business who are depositors in the bank. If he is permitted to examine their accounts it gives him an advantage and an insight into a rival's affairs that few business men would tolerate. Hence, it is a question however, the directors have been compelled to with many banks whether to adopt this rule or defend themselves for years against litigation, lose valuable customers, and they generally prefer which a careful and dispassionate examination of the former. We are not speaking of the wisdom of the rule, only of its existence, as bearing upon to be without merit. Having succeeded in vinthe case, at the proper time, would have shown the question of the directors' negligence. Are they to be held to be guilty of gross negligence dicating themselves from the charges made do not think they should in not examining a book which, by the rules of against them, we The general now be compelled to pay the costs. his unsuccessful litigation, and we see nothing in rule is that the losing party shall pay the costs of this case to take it out of this rule. their own bank and of four-fifths of the other banks in Pittsburgh, the directors were not permitted to see? Nor do we think the directors were bound to regard the statements submitted to them as false, and the president, cashier, and clerks as thieves. They had nothing to arouse suspicion. All of these gentlemen stood high; they were the trusted agents of the corporation; paid for their services, and regarded in the community in which they lived as honest men. Aside from this, the directors were among the heaviest stockholders of the bank. They collectively owned a large proportion of it. And so thoroughly were they deceived by the president as to its condition, that when the first stoppage occurred, they not only believed the suspension was temporary, but they showed their faith by their works, and upon their individual credit raised the sum of $289,000 to enable it to resume. They did not desert the This was a cross-appeal from the same decree as that in Warner's Appeal. It was taken by the directors of the bank, and they complain that "the Court below erred in imposing upon the directors, the defendants below and appellants fee of $2500." here, the costs of this case, including a Master's the Court, and we always hesitate to reverse for Costs in equity are in the sound discretion of the exercise of such discretion. In this case, The decree is reversed as to costs, and it is or dered that the costs here and below, including the Master's fee, be paid out of the funds in the hands of the assignee. APPEAL OF HARE. Thomas Hare, one of the defendants, assigns as error upon this appeal, that the Court below erred in making and entering the sixth paragraph of the decree, which orders him to pay to the said assignee the sum of $3716.23, with interest thereon from May 26, 1884, less five and seveneighths per cent. of the principal sum, said deduction being the amount of the dividend paid by the assignee to creditors upon the distribution, heretofore made by said assignee. The facts are as follows: Thomas Hare & Son, appellant's firm, had the sum of $3716.23 | gheny County, in an action of ejectment whereon deposit in the Penn Bank, on the day the in C. C. Elcessor et al., the children and heirs bank finally closed. Being in the bank at the of Lewis Elcessor, deceased, were plaintiffs. time, he drew this money out. The Master and the Court below held that he had no right to do so, and thus obtain a preference after the bank had closed. There could be no doubt about this if the money had been his individual money. But he contends, that because it belonged to his firm he had a right to withdraw it. We think it is a distinction without a difference. It was his act, and even if we treat it as the act of the firm, it was done upon information obtained by him in his confidential relation as a director of the bank. We think the decree against him was properly entered, and his appeal is dismissed at his costs. Oct. '91, 80. R. H. N. this On the trial, before EWING, P. J., the following facts appeared: Lewis Elcessor died intestate May 7, 1889, having been seised in fee of the premises in dispute, a lot of ground in the city of Allegheny. The decedent had been married three times and left him surviving his third wife, the defendant, and children by his first and second wives, who were the plaintiffs. He had no children by his third wife. Plaintiffs having proved seisin in said decedent of the premises in dispute, rested. The defendant then offered in evidence deed of Lewis Elcessor and Mary his wife to Jacob W. Keffer, dated March 12, 1889, and deed of Jacob W. Keffer and wife to Mary Elcessor, dated the same day, and rested. The plaintiffs attacked the deed by decedent, averring, inter alia, that the decedent was at the time of its execution of unsound mind. October 27, 1891. Considerable evidence was introduced upon question by both plaintiffs and defendant. Reuben Logan, a witness called and examined on behalf of the plaintiffs, having testified that he knew Lewis Elcessor for over forty years; that he had conversations with him during the last two or three years of his life about dealing in pork or grain; that he was a brother-in-law; was further asked: Q. What other subjects did you talk about besides his speculation? A. Sometimes he would speak of his family affairs and how they were getting along, and that was his conversation as a general thing. Q. How did he look in those latter years of his life? A. Very different from the former part of his life. Q. Did you ever see him crying? A. Yes, sir; at my house. Q. How often? A. That is something I couldn't tell; dozens of times. Q. In your judgment, the last year of his life was he of sound or unsound mind? Elcessor v. Elcessor. Witnesses When a gift by a husband in his lifetime to his wife of a not clearly undue portion of his estate is attacked after his decease on the ground of mental incapacity, substantially the same standard is to be applied in determining the question of his mental capacity as is applied in determining a question of testamentary capacity, viz: that the donor or testator must have, at the time of making the gift or will, a fair appreciation of the nature of the act, of what property he has, and of what he wishes to do with it. As evidence of mental capacity of a decedent the opinions of witnesses who knew him are admissible when their opinions are founded on facts, which must first be given to the jury that they may determine the weight to be given to the opinions founded on them, and the facts must be such as afford a fair foundation for an opinion on the particular point of dispute. Witnesses who have known a decedent many years, but have not for a long time had any business transactions with him, and the most of whose testimony relates to changes in the physical appearance of the decedent, are not competent to express an opinion as to his mental capacity. When witnesses who are incompetent, as stated in the preceding paragraph, are permitted to give their opinions as to the decedent's mental capacity, the admission of such evidence will be ground for reversal, although the trial Judge subsequently characterizes the evidence as probably of not very much importance in the case, and cautions the jury as to the weight of such evidence, and tells them explicitly that they were not to distribute the decedent's property for him, but to determine if the deed in dispute Defendant objected, that the witness has disclosed no facts to justify him in expressing an opinion. Objection overruled. Exception. The witness further testified: A. You mean in business? Q. Yes, sir. A. I think not, sir. (Fourth assignment of error.) John Alston, a witness sworn and examined on behalf of plaintiffs, testified that he went to work for Lewis Elcessor and lived with him for eight or nine years, and was then asked: Q Did you see him in the latter years of his life? A. Yes, sir; I passed him frequently on the street; I think the last time I spoke to him was about the first of March; I think the last time I spoke to him was about the first of March or the last part of February. I was going up along Dawson Street and at the Park I caught up Appeal of Mary Elcessor, defendant, from the with him, and walked up to him and stuck my judgment of the Common Pleas No. 2, of Alle-arm in his and walked the same way he was go was his own act. ing, and he turned around and spoke to me and asked me how I was getting along. He was very slow in talking and was walking very slow, and I suppose it took us ten minutes to walk up to Webster Street, and he asked me how much work I was doing and how I was getting along, and when we got within three or four doors of Irwin Avenue he asked me where I was going, and I said down to the barn there, and he turned around to me and he says, "Who are you?" and I says, "Johnny Alston," and he turned around and shook hands with me and asked me the same things over again-how I was getting along and whether I was doing as much work as he did before and I walked along and he kept up the street. I met him in the street frequently and spoke to him and he would speak to me and call me by name-other times he would be looking right at me and wouldn't answer when I spoke, and walk along. Q. Did you ever have any conversation with him? A. I don't think I did any more than to give him the time of day. I spoke to him once in the Diamond and asked him how he was getting along, and another gentleman came up and spoke to him and he went off with him. Q. Can you recall any subject of conversation you had with him during the last year or two of his life? A. Only this one when he asked me how I was getting along and I thought Q. How did he go along the street the last year of his life? A. Very stupid, very slow. It used to be when I walked with him on the street, when I learned my trade with him it would keep me running to keep up with him, and that day he was going along stoop-shouldered and weak and trembling like. Q. From your observation of this man and his conversation was he of sound or unsound mind and fit to do business the last year of his life? Defendant objected on the ground that the witness had not testified to sufficient facts to warrant an opinion. THE COURT (to plaintiffs' counsel): I do not think it would be safe if there should be a verdict for you. Mr. Marshall: We will risk it. time I don't think he was. (Fifth assignment of error.) The Court, in charging the jury, having stated the subject of the controversy, then said: In determining a question about which there has been a great deal of testimony, and a great deal of it that is probably of not very much importance in the case, it is important to exclude from consideration things that are not in the case. Now, first, you and I are not to make a will for Lewis Elcessor; we are not to distribute his property; that is not to be considered; and whether or not it is a just distribution-too much or too little for this woman-you and I have nothing to do, because from the admitted testimony it is not a case of a man divesting himself of his whole property, and as a matter of law no Court would say, or could say, that it was an undue provision to make for a wife, provided he made it was competent mentally to make it, and made it of his own will. Now, bear that in mind, and divest yourselves of any idea that you are to be controlled by what you think is the justice or injustice of this act, because a man has a right, if he is not defrauding his creditors, to give away his property, and has a right to will it as he pleases. It is his legal right, and the business of Courts and juries is not to make laws nor to distribute estates against the will of the owner. In the next place, the relation of husband and wife is a lawful one, a proper one, a holy one, and there are influences that can be brought to bear on the husband by the wife, or the wife by the husband, that the law recognizes, that they may do properly, without avoiding a deed or a will, that a stranger could not do. The question you are to determine is, whether or not Lewis Elcessor, at the time he made this deed, was mentally competent to execute a deed for the property. The Court then instructed the jury at length upon the question of insanity. Verdict for plaintiffs and judgment thereon; whereupon the defendant took this appeal, assigning as error, inter alia, the admission of evidence as above set forth. John S. Ferguson (E. G. Ferguson and J. A. Emery with him), for appellant. A witness who has testified to no facts indicating want of capacity in a testator and has not attested the will, is not competent to give his opinion as to the testator's mental capacity. Dickinson v. Dickinson, 61 Pa. 401. The Court overruled the objection. Exception. The witness then testified: Q. At the time you saw him and talked to him in the latter part of February or the first part of March, 1889, from his appearance and conversation, in your judgment was he fit to do business; of sound or unsound mind? A. My opinion of him at that time when I saw him, his memory from what he had been when I had a great deal of dealings with him, had failed wonderful, and he was about as great a changed man as ever I knew, because for appellees. he would come right at me with the same ques- There can be no harm in admitting the opinion tion over and over. Q. Was he fit to do business of a witness when proper caution is observed by in your judgment? A. In my judgment at that the trial Judge in his charge. We respectfully The rule, of course, is the same in a case such as the one now before the Court. Thomas M. Marshall (D. M. Alston with him), invite the attention of this Court to the extreme caution exercised by the Judge in his charge. Indeed, the charge is open to criticism on our part, but as the verdict was right we do not complain of the propriety of receiving the evidence appearing in this case. Our witnesses were all well informed by association and otherwise with Elcessor. Rambler v. Tryon, 7 S. & R., 90. January 4, 1892. MITCHELL, J. The learned Judge during the course of the trial admitted a good deal of testimony that he subsequently characterized to the jury as "probably of not very much importance in the case," and some apparently against his own judgment out of regard to the urgency of counsel who assumed to "risk it." It is true that he cautioned the jury as to the weight of such evidence, and told them in correct and explicit terms that they were not to distribute Lewis Elcessor's property for him, but to determine if the deed was his own act. But, unfortunately, to redistribute a man's property after he is dead, in a manner different from that which he has chosen to do for himself, is one of the things that few juries can resist if they are allowed an opportunity, and this is a class of cases in which the jury must not only be held with a strong hand to a decision in accordance with the evidence, but also in which care must be taken not to give them a chance to decide except upon evidence strictly competent. The present is the case of a deed from the grantor to a third party for the purpose of reconveyance to the grantor's wife, drawn by counsel, acknowledged before a notary who had known the grantor fourteen or fifteen years, and who explained the effect of the deed at the time, and executed openly in the presence of one of the plaintiffs. There was no evidence of coercion, fraud, collusion, or even secrecy about it, and it was attacked after the death of the maker solely on the ground of mental incapacity. To overcome such a prima facie case the evidence should be clear and unquestionable. This State has been reasonably free from disgraceful scrambles over the property of dead men, who passed as men of business character and capacity in the community while they lived, and it is the duty of the Courts to see that no encouragement is given to any but really well-founded contests. The general rule as to testamentary capacity is that the testator must have a fair appreciation of the nature of the act, of what property he has, and of what he wishes to do with it. Substantially the same standard applies to the present case of a gift during life of a not clearly un due portion of his estate to his wife. As evidence of such capacity it is settled that opinions. of witnesses who knew him are admissible, but only opinions founded on facts which must first be given to the jury that they may determine the weight to be given to the opinions founded on them. They must, therefore, be facts that afford a fair foundation for an opinion on the particular point in dispute. The rule is expressed with the clearness and force that always characterized our late brother CLARK, in Bank v. Wirebach's Ex'r, 106 Pa. 37: "One not having the pretensions of an expert, cannot be permitted to give an opinion as to another's mental soundness or unsoundness until he has first testified to facts within his own knowledge, tending to show that mental condition. The particular facts stated by each of these several witnesses must be taken alone as the basis of the proposed opinion of that witness; thus considered they are found to be in themselves inconclusive in their nature, of such neutral character as in some instances at least to be consistent either with soundness or unsoundness of mind. Such facts could not reasonably be assumed as the basis of an opinion as to either." Tested by this standard, the facts related by Logan and Alston were not sufficient to justify the reception of their opinions. The burden of their testimony was as to change of physical ap pearance, which was not surprising, as one of them had known Elcessor forty years and the other eighteen. Neither had had any business transactions with him for years, and though Logan testifies to conversations about making money and about dealing in pork and grain and oil, and to visits to bucket-shops, yet he never saw Elcessor buy or sell on such occasions. That a man such as Elcessor was shown to be, of good natural mind, but entirely illiterate, " carrying his business in his head," as one witness said, because unable to read and write, and shut out thereby from mental occupation through those channels, should when disabled for his trade by a physical breakdown at a rather early age occupy his mind with visions of speculative fortune and hang around the edges of the dangerous maelstrom, but with no evidence that he ever ventured in, was certainly no fair indication that he did not know what property he had and what he wished to do with it. Such testimony was at the most of that neutral character consistent with soundness as well as unsoundness of mind, which, as said in Bank v. Wirebach, supra," could not reasonably be assumed as the basis of an opinion." The fourth and fifth assignments of error must therefore be sustained. Judgment reversed, and venire de novo awarded. C. K. Z. The 14th section of the Act of June 1, 1885, P. L. 37, requiring all contracts relating to city affairs to be in writing, is mandatory, and the city may not delegate to a subordinate authority the right to waive or vary their terms by oral agreements. The powers of a subordinate city official to vary the terms of a contract are limited by the terms in which they are conferred, and must be exercised in strict conformity with his authority. M. entered into a contract with the city of Philadelphia to erect a bridge within twelve months from the date of notice to commence work; and if for any reason, except for the "written consent" of the chief engineer and surveyor, the completion of the work should be delayed beyond that period, they would pay the city as liquidated damages, and not as a penalty, the sum of $50 for each and every day during which the work should be so delayed. It was also provided that the chief engineer and surveyor upon written notice from M. of the existence of causes over which they have no control, which must delay the completion of the work, may extend the period of its completion, and in such case the damages for delay shall begin to run from the period to which the date of completion shall have been so extended." Upon the completion of the work the chief engineer withheld from M. the sum of $50 per day, for sixty-two days' delay after the period at which the work should have been completed, to recover which M. brought suit. The evidence showed that M. did the work under a verbal assurance from the chief engineer and surveyor that the time clause in the contract would not be enforced, if the work was completed as rapidly as M. could do it: Held, that M. could not recover; the extension of time which the engineer was authorized to grant was required to be in writing and for a definite period. The material facts, as they appeared upon the trial, before ALLISON, P. J., are set forth in the opinion of the Supreme Court. The Court directed the jury to find for the Verdict accordingly. Whereupon defendant. plaintiffs appealed, assigning error as set forth in the opinion. Held, further, that the sum of $50 per day withheld for delay, was liquidated damages, and not a penalty. It is to be inferred that parties intend a sum agreed to be paid upon breach of a contract, as liquidated damages, whenever the damages are uncertain, and not capable of being ascertained by any satisfactory rule. David W. Sellers, for appellants, cited:- March v. Allabough, 103 Id. 336. Abraham M. Beitler and Charles B. Mc- Addison on Contracts *399, *1110 to *1119. Gillis v. Hall, 7 Phila. 422; S. C. 2 Brewst. 342. February 22, 1892. HEYDRICK, J. The contract upon which the plaintiffs declared was for the erection of a bridge over the Schuylkill River at Market Street. It contained a covenant on the part of the plaintiffs that they would complete the bridge within twelve months from the date of notice to commence work; and that if for any reason except for the written consent of the chief engineer and surveyor, as therein provided, the completion of the work should be delayed beyond that period, they would pay the city as liquidated damages, and not as a penalty, the sum of fifty dollars for each and every day during which the work should be so delayed. The delegation of authority to give the "written consent" which should relieve the contractors from the payment of damages for delay was in the following words: The chief engineer and surveyor, upon written notice from the parties of the second part (the plaintiffs) of the existence of causes over which they have no control, which must delay the completion of the work, may extend the period of its completion, and in such case the damages for Appeal of R. A. Malone, R. B. Malone, and delay shall begin to run from the period to which R. J. Malone, trading as R. A. Malone & Sons, the date of completion shall have been so explaintiffs, from the judgment of the Common tended." The contract was dated June 15, 1886; Pleas No. 1, of Philadelphia County, in an action notice to commence work under it was given Sepof assumpsit, brought against the city of Phila-tember 7, 1886, and the bridge was not completed delphia, to recover the sum of $3100 alleged to until February 25, 1888, one hundred and seventybe due plaintiffs under a contract for the erection one days after the time limited for such compleof Market Street bridge over the river Schuylkill. tion. By another clause of the contract it was An affidavit of defence having been filed, a provided that thirty days after completion of the rule for judgment for want of a sufficient affi- work the chief engineer and surveyor should davit of defence was discharged, which judgment" make a final estimate, including all legal and was affirmed by the Supreme Court: Malone et equitable deductions," from the contract price. al. v. Philadelphia, 132 Pa. 209. That officer was of opinion that the neglect of the |