tion of the Attorney General, against the ly right in his view that its reasoning applies American Steel Hoop Company. Judgment for defendant, and the Commonwealth appeals. Affirmed.

Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Frederic W. Fleitz, Deputy Atty. Gen., J. E B. Cunningham, Asst. Deputy Atty. Gen., and M. Hampton Todd, Atty. Gen., for appellant. M. E. Olmsted and A. C. Stamm, for appellee.

with equal force to this claim. A certain class of foreign corporations, of which the appellee was one, transacting business and employing capital here prior to May 8, 1901, were doing so practically on invitation from us, and it is not disputed that the appellee in coming had observed all the terms of the legislative invitation extended to it. By the act of June 9, 1881, and its supplements, manufacturing corporations like the appellee were encouraged to come and invest their capital here by the permission given them to purchase and hold real estate necessary and proper for their corporate purposes, and each corporation so coming knew the terms upon which it was to come and the right given it to invest some of its capital here in land. These terms included no bonus which is not

We

BROWN, J. The bonus which the commonwealth would exact from the appellee, a corporation organized under the laws of New Jersey and engaged in business here, is claimed under the act of May 8, 1901 (P. L. 150). By that act a bonus of one-third of 1 per cent. is imposed upon the capital of foreign corporations actually employed or to re employed wholly within this state, and aa tax, but a consideration for the grant of a like bonus is imposed upon each subsequent increase of capital so employed. In Com. v. Danville Bessemer Co., 207 Pa. 302, 56 Atl. 871, the claim of the commonwealth was for a bonus upon the capital of the company which had been employed in this state prior to the passage of the act of 1901, and, in sustaining the lower court's disallowance of the claim, we held that the act did not affect that portion of the capital which was wholly employed here at the time of its passage. In the present case it is conceded that, under that ruling, the commonwealth is not entitled to a bonus upon $2.820.424.34, the amount of capital which the appellee had employed here prior to May 8, 1901, but a claim is made for the bonus upon that portion of the capital subsequently brought and employed here, amounting to $1,596,078.58. This claim was disallowed by the learned court below for two reasons, first, because it was of opinion that we had decided in the Danville Bessemer Company case that the act of 1901 did not apply at all to foreign corporations which were engaged in business and employing a portion of their capital here at the time of the passage of that act, and, second, even if the Legislature did intend to impose a bonus upon capital employed after the passage of that act by corporations that had come here prior to its passage in pursuance of the provisions of the act of June 9, 1881 (P. L. 89) and its supplements, such imposition would be in violation of section 10, art. 1, of the Constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts.

In Com. v. Danville Bessemer Company the question before the court was the right of the commonwealth to collect a bonus from the company on capital employed here prior to May 8, 1901, and that case is not to be regarded as authority for anything else than that such capital is immune, but the learned

privilege or franchise: Com. v. Erie & West-
ern Transportation Co., 107 Pa. 112. The
appellee claims no privilege, and is not at-
tempting to exercise any franchise which it
did not possess under our statutes prior to
May 8, 1901, and nothing but a clear expres-
sion of the legislative intent that it must pay
a bonus upon that portion of its capital
brought here since May, 1901, will subject it
to the same. even if it be conceded that the
Legislature had the power to do so.
need not now repeat the reasons given in
Com. v. Danville Bessemer Company why
the act of 1901 was intended to be operative
only upon corporations coming into the state
after its passage. For those reasons we
now hold, because the question is now before
us, that a foreign corporation which was
here with a portion of its capital employed
here before May 8, 1901, is not within the
provisions of the act approved that day. At
that time it had invested in its plant here
the sum of $2.820,424.34. To successfully fur-
ther conduct its business and protect and ren-
der useful the investment of capital it had
already made in this state, it became im-
perative upon it to remodel and reconstruct
its plant. The remodeling and reconstruction
were progressing on May 8, 1901, and it is
hardly to be assumed for a moment that on
that day the Legislature intended to say to
the appellee that its improvements must
cease, and its plant could not be remodeled
or reconstructed in the effort it was making
to save the almost $3,000,000 which it had
already invested in compliance with the
terms of the state's invitation to do so, un-
less it paid a bonus for the privilege of sav-
ing its jeopardized property. No such legis-
lative intent can be gathered from the stat-
ute. For the first reason given by the learn-
ed president judge of the court below, as set
forth in his opinion, the judgment is affirmed.
We are not called upon to consider the sec-
ond.

[Ed. Note.-For other cases, see Wills, Cent. ness my signature,' 'See these different sigDig. §§ 305-313; Dec. Dig. § 119.*]

of the statute except that which makes it [ qualified notwithstanding. The language of essential that the witnesses be disinterested. the act is "at the time disinterested." Was The argument in support of the proposi- any other time meant by this than that contion that the witnesses must be disinterested templated in the general rule? This was the as well at the time of the probate as at the question put in the opinion, and the answer time of the execution of the instrument, pro- was: Certainly another time was meant; ceeds on a clear misapprehension of what the purpose of the act could not have been was said in Paxon's Appeal, supra. We merely to give legislative sanction to the genquote from the opinion in that case: "Noth- eral rule; it clearly defined a disability ing is easier than to antedate a writing, reaching further back than the time when whether a deed or will, and the statute the party was called to testify. Giving to guarded against that danger by the require- the expression "not merely" the significance ment that it should be not merely proved, for which the appellant contends, that it is but 'attested,' by two witnesses, and those the equivalent of "not only," it expresses extwo must be 'at the time disinterested.' At actly the thought intended to be conveyed, what time? Certainly not merely at the time and the law as it stood at the time of the of probate, for that was the general rule un- passage of the act of 1855. The general rule der the act of April 8, 1833 (P. L. 249), and which excluded a witness on ground of indid not need any re-enactment. Those whose terest was deemed inadequate in view of the memory goes further back than the evidence purpose of the act, and a certain positive act of 1887 (P. L. 158) will recall the amount disqualification was defined which would opof time and argument spent over questions erate to exclude in cases where by reason of of the interest of witnesses, and whether the divestiture of interest, before the party was interest had been or could be released. The called to testify, the general rule would fail act closed all controversy on this point by to operate. The opinion is clear of all posthe requirement that the witnesses should be sible obscurity, and the decision is directly disinterested 'at the time.' At what time? to the point that the time of qualification of Clearly at the time the instrument was exe- the witnesses must be referred to the time of cuted in the manner required by the statute." the execution of the will. The words "certainly not merely at the time of the probate, for that was the general rule under the act of 1833, and did not need any re-enactment," as they here occur, are seized upon as giving rise to an implication that the witness must, in order to be qualified, be disinterested both when the instrument is executed and when probated. No such meaning was intended, and it requires ingenuity to extract any such implication. The reference is to conditions existing when the act of 1855 was passed. Prior to the act of 1855 a subscribing witness to a will who was a beneficiary thereunder was incompetent to testify in connection with the probate, not, however, because of anything in any statute relating to wills, but by reason of a general rule of evidence which excluded from the stand any one having pecuniary interest in the matter in controversy. The act of 1855 had no effect whatever upon this rule; it remained operative after the act as before. The disqualification under the rule had relation to the time when the person was called to testify. No matter how much he had been interested before, if he had in fact divested himself of that interest when called to testify, he was competent. The act imposed another and wholly distinct disability, not in any way affecting the disability under the general rule, namely, a disability in consequence of having an interest at the time of execution of the instrument. So that after

the passage of the act, where a subscribing witness having an interest under the will was called to prove the will, even though that interest had been divested, he remained dis

It is conceded that when this will was executed and attested the subscribing witnesses were wholly without interest. Five months after its execution the testator added a codicil, unattested, in which he gave legacies to the witnesses who had previously attested the will. By the act of 1887, disqualification on account of interest in such cases had been removed. These parties therefore stood clear of all disqualification by reason of interest, except as the act of 1855 interfered. But under that act the disqualification by reason of interest must arise in connection with the factum, otherwise it does not exist. When the will which they attested was executed, they were without any interest in or under that will, and were therefore competent.

Judgment affirmed.

CONNEAUT LAKE AGRICULTURAL
ASS'N v. PITTSBURG
SURETY CO.

(Supreme Court of Pennsylvania. Oct. 11,
1909.)

1. ARBITRATION AND AWARD (§ 6*)-AGREEMENTS TO ARBITRATE.

Agreements to refer disputes to arbitration will be upheld, where the power to pass upon the subject-matter in dispute is clearly given to the arbitrator.

[Ed. Note.-For other cases, see Arbitration

and Award, Cent. Dig. § 27; Dec. Dig. § 6.*]
2. CONTRACTS (§ 284*)-AGREEMENT TO ARBI-
TRATE-POWER TO AWARD DAMAGES.

Under an agreement to refer all differences arising between a contractor and the other par

[Ed. Note.-For other cases, see Contracts, Dec. Dig. § 284.*]

3. CONTRACTS (§ 290*)-AGREEMENT TO ARBITRATE-WAIVER.

Bringing a suit, subsequently discontinued, on a building contract was not a waiver of the arbitration clause therein.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 290.*]

4. PRINCIPAL AND SURETY (§ 143*)-FAILURE TO APPEAR BEFORE ARBITRATOR-ESTOPPEL. A surety on a building contract containing an arbitration clause, who, though notified of the time and place of hearing before the arbitrator, did not appear, is not in a position to raise questions, in a subsequent action upon its bond, which should have been raised by its principals, the contractors, and which were clearly within the arbitrator's jurisdiction.

ty in reference to the work to the engineer of the | performance of the work to which they relatter party, his decision to be final, the engineer late, or in any way connected with the work, had power to award damages for delay in com- will be referred to the engineer, and his depleting the work. cision will be final and binding." The contract required the work to be completed within 50 days from its date, and provided that, if the contractors should fail to complete it as agreed, they should forfeit the sum of $100 for every day, excluding Sundays, that it should "remain unfinished after the time agreed upon (for) its completion, the sum so forfeited to be retained as liquidated and ascertained damages out of any money that may then be due or owing, or may hereafter become due or owing, to the said contractor, on account of his work under this contract." The statement further averred that the contractors had failed to carry out or comply with their covenants and undertakings in the said contract, to the damage of plaintiff in the sum of $3,700.30, and that "upon violation of the contract as aforesaid on the part of L. C. Klosterman & Co., the plaintiff, as is provided in section 11 of said contract, presented and proved its claim for damages before W. T. Dutton, the duly authorized and appointed engineer of the said plaintiff, who after due notice given to all parties in interest, reported upon the same, a copy of which report or decision is hereto attached and marked 'Exhibit C,' and made a part

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 392; Dec. Dig. § 143.*]

Appeal from Court of Common Pleas,

Crawford County.

Action by the Conneaut Lake Agricultural Association against the Pittsburg Surety Company. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed.

Argued before MITCHELL, C. J.. and FELL, BROWN, MESTREZAT, and POTTER, JJ.

John P. Hunter, Manley O. Brown, E. Lowry Humes, and George J. Shaffer, for appellant. Frank J. Thomas, for appellee.

hereof."

By the award of the engineer it appeared the plaintiff had referred its claim for damages to him, and that he had appointed a meeting for the purpose of considering them, of which notice was given to the plaintiff, POTTER, J. The appellant in this case to the contractors, and to the surety comwas sued in its capacity as surety upon a pany, defendant. Neither of the latter parcontractor's bond. In the statement of claim ties appeared at the time fixed or at any by plaintiff it is averred that the defendant, other time before the engineer. The engineer the Pittsburg Surety Company, had duly ex- found and assessed damages sustained by ecuted and delivered to plaintiff a bond, of the plaintiff from the failure of Klosterman which a copy was attached, and by which & Co. to fulfill the contract in the sum of defendant bound itself in the sum of $3,500 $3,700.30. Suit was thereupon brought in "for the faithful performance on the part the present case to recover the full amount of L. C. Klosterman & Co., of Pittsburg, Pa., of the bond. An affidavit of defense was of all and every the covenants, agreements filed, in which was set up in the first place and conditions to be kept and performed a pending and undetermined suit brought beby the said L. C. Klosterman & Co., contain- fore the award of the engineer was made, ed in a certain contract entered into between directly upon the contract by plaintiff against the plaintiff and the said L. C. Klosterman, L. C. Klosterman & Co., the contractors. It dated the 12th day of May, 1905." The con- appears, however, from the opinion of the tract referred to, which was attached to and court below that, after the affidavit of demade part of the statement, was for the con- fense was filed, the former suit was disconstruction of a race track on plaintiff's grounds tinued, by leave of court, nunc pro tunc as at Exposition Park, Crawford county, Pa., of a date prior to the commencement of the for the total cost of $3,500. The work was present suit. In the affidavit of defense the to be done "under the direction and inspec- validity of the award was denied, and it was tion of the company's engineer and to the averred that the matters passed upon by the full satisfaction and acceptance of the en- engineer were not within the terms of the gineer." The contract also provided that "all submission as contemplated in the contract. questions, differences, etc., which may arise It was also alleged that the engineer who between the company and the contractor un- made the award was not the same person der, or in reference to this agreement, these who was engineer for plaintiff when the specifications or to its performance or non- work was begun, and that the award was

fraudulent and void, and was improperly se- | pany, while the former suit was brought cured by plaintiff. No specifications were directly upon the contract, against the conmade of the alleged fraud, except that the tractors. We agree with the court below award bore date December 20, 1907, which that the affidavit of defense is insufficient was prior to the last hearing before the to prevent judgment against the surety. The engineer on March 12, 1908. Plaintiff, how-award was conclusive and binding upon it. ever, was permitted to amend its statement The appellant was notified of the time and by averring that the date December 20, 1907, was a clerical error, and that the award was not actually made until April 20, 1908. This averment is not denied by defendant. Upon a rule for judgment, the court below held that the bringing of the prior suit against the contractors could not be pleaded in bar in this case, and that both the contractors and the surety company were concluded by the award of the engineer as to the liability of the former under the contract and as to the amount of damages sustained. Judgment was entered against defendant for want of a sufficient affidavit of defense in the full amount of the bond.

It is firmly settled by the law of Pennsylvania that agreements to refer disputes to arbitration will be sustained and upheld, where the power to pass upon the subjectmatter in dispute is clearly given to the arbitrator by the terms of the agreement. Hunn v. Institution, 221 Pa. 403, 70 Atl. 812, 18 L. R. A. (N. S.) 1248; Somerset Borough v. Ott, 207 Pa. 539, 56 Atl. 1079. The terms of the submission in the case at bar as noted above, were: "All questions, differences, etc., which may arise between the company and the contractor under or in reference to this agreement, these specifications, or to its performance, or the work to which they relate, or in any way connected with the work, will be referred to the engineer, and his decision will be final and binding." This lanage, it will be seen, is very broad, and eems to cover all the questions passed on by the engineer and enumerated in his award. They all relate to the performance or nonperformance of the agreement, and are connected with the work to be done thereunder. The contention that the engineer had no power to award damages for the delay in completing the work is met by the principles laid down by this court in Clark & Sons Co. v. Pittsburgh, 217 Pa. 46, 66 Atl. 154, in construing an agreement in which similar broad powers to arbitrate were conferred upon the director of the department of public works.

place of hearing before the arbitrator. It
did not, apparently, see fit to appear and de-
fend when it had the opportunity to be
heard. It is not now in a position to raise
questions which if they had any merit
should have been raised by its principals,
the contractors, and which were clearly
within the jurisdiction of the arbitrator
chosen by the parties to the contract to de-
cide all matters of difference between them
connected in any way with the work.
The judgment is affirmed.

In re SMITH'S ESTATE.
Appeal of SMITH et al.
(Supreme Court of Pennsylvania. Oct. 11,
1909.)

EXECUTORS AND ADMINISTRATORS (§ 17*)
RIGHT TO ADMINISTER-ADOPTED CHILD.

minister on the estate of his adopting parent.
An adopted child acquires no right to ad-
[Ed. Note.-For other cases, see Executors
and Administrators, Cent. Dig. § 47; Dec. Dig.
§ 17.*]

Appeal from Orphans' Court, Fayette County.

In the matter of the estate of Berthena

Rosanna Smith. From a decree dismissing petition to remove administrator, John R. Smith and others appeal. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, POTTER, and ELKIN, JJ.

F. M. Estes, F. X. Geraghty, and J. G. Carroll, for appellant. roll, for appellant. E. C. Higbee, D. M. Hertzog, and Crow & Shelby, for appellee.

POTTER, J. It appears from the record in this case that there was an appeal to the orphans' court of Fayette county from the decree of the register of wills, refusing to revoke letters of administration granted to Herman M. Kephart on the estate of Berthena Rosanna Smith, deceased. The petitioners and appellants are children of Robert L. Smith, deceased, and of his first wife. They were stepchildren of the decedent, Berthena Rosanna Smith, and not of her blood. The decedent died intestate and without known relatives, leaving a large estate, mostly realty. Information was given to the commonwealth, and proceedings were instituted to escheat the estate, Herman M. Kephart being appointed escheator and subsequently administrator.

There is no merit in the suggestion that the bringing of a suit against the contractors was a waiver of the arbitration clause. This suit was not brought to trial, but was discontinued. The ruling of the trial judge in this respect is amply supported by the case of Barclay v. Deckerhoof, 171 Pa. 378, 33 Atl. 71. We might add that this is hardly a proper question to raise in the present The children of Robert L. Smith claimed case. The parties are not the same. This to be interested in the estate upon three is a suit upon the bond of the surety com- grounds: (1) They claimed to have been