itle to the lot sometime about January, 1902. The Mechanic's lien laimant failed and neglected to ascertain how the claim was indexed and to have it corrected. The defendant never had any written contract for the lot.

DISPUTED FACTS.

In connection with the claim as shown by the alleged lien that. the work therein mentioned was done between the 6th and 25th of September, 1900, the auditor has found that lot 6 in block K "was purchased by the defendant, Jesse G. Colvin, of the Tripp, etc. Company prior to the first day of September, 1900, and that the said defendant was in possession of said lot on and before that date in pursuance to said purchase." (1st finding of fact.)

Also that, "The description in said mechanic's lien is sufficiently certain so that one familiar with the locality could locate it and identify it." (16th finding of fact.)

I take this to mean, "Locate the property and identify it with the lot described in the mortgage.

The same finding in effect is again made in answer to the claimant's first request, coupled, however, with the addtion that it "is certain to a common intent."

Both of these findings are seriously controverted by the plaintiff, who contends that they are unwarranted by the evidence.

As to the first one we confess that we are very doubtful, to say the least, as to there being such evidence. Manifestly there was no evidence to warrant the finding of a vestige of title to this lot in Colvin as early as. February, 1900, when, according to the index, the claim was filed. If the searcher may rely on that date in and about his inquiry as. to the inception of the defendant's title, the claimant, as between himself and the subsequent encumbrancer, being at fault and responsible for the error, must suffer the loss, if any, and in such case as this must be postponed to the mortgage. There is strong ground for the argument that he may rely, on the index, as well as for date of filing as for the name of the defendant. Had he found the name "Coleman," "Colgate," or any name other than "Colvin," or its idem sonans he wouldn't have been chargeable with knowledge of a lien against the defendant. But under the view we take of the other disputed question of fact we deem it unnecessary to decide this point at this time.

This claim as set forth on its face might possibly be held good on a motion to strike it off, but, if so, it would be in disregard of the lack

of description of an erected building and solely for the reason that the lot would be regarded as sufficiently identified by the adjoiner's name. We fail to see any other distinctive mark of identification, except so far as the dimensions of the foundation are given, viz: “About 18 by. 36 feet." When filed there was no house to describe. Hence the terms of the statute if strictly applied were not met. Had the house been erected it might by its peculiarities have furnished other matters of description sufficient to identify and locate it. But as it was, the mortgagee would have to rely on the lot which in every particular except the width was erroneous. It did not appear in which block nor on which side of the street the supposed lot was located. Its length was given as 150 feet. The lot in question is on the northeasterly side of the street, and like every other lot in the block has a depth of 112 feet. The adjoining lots are vacant, but neither of the persons named were ever connected with them in any way nor reputed so to be. Their lots were in another part of the block. The defendant had been connected in title, possession, and as builder with several other properties on the street, notably with No. 8 in this block where he lives. On both 6 and 8 a' house was standing when the mortgage was placed. The dimensions as stated in the claim and the design of the foundation so far as indicated varied in some degree from the foundation under the house on No. 6. The learned counsel for the claimant lays stress on the tact that at the time the lien was filed, the defendant had no other house in process of construction on that street. We are at a loss to see how the mortgagee can be reasonably required to find out and govern himself by that fact as a means of locating and identifying the lot' intended to be described in the claim. Such information is very fleeting. It could easily become impossible of ascertainment in the lapse of a short time. On the face of the papers the description in the lien can not be identified with the lot described in the mortgage. This clearly appears by the facts reported. The auditor's 16th finding, therefore, must rest on the parol testimony. That, however, is entirely to the contrary. Colvin, who was a witness for the claimant, by dint of repeated leading question, which ought not to have been allowed, was induced to affirm these statements of counsel: "Q. And if you were familiar with the neighborhood you would be able to identify it? A. Yes, if I was familiar with the neighborhood and knew the house; I suppose if a man wanted to go to a certain house I could send him there. Q. And from the description of the land, the general size of the house being given, and the size of the lot being given correctly in front, you would

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be able to locate it for them, wouldn't you? A. Yes, sir, I think I would." This was after the witness had joined in a written agreement with the claimant at the same hearing, by which it was attempted to correct the description, and after he had testified circumstantially on cross-examination to the effect that the lot in question could not be identified by the description in the lien even by him except as he knew the house. The answers above quoted are the only evidence to support the finding in this particular. All the other witnesses testified unequivocally the other way. We feel constrained, therefore, to hold that there was no evidence to warrant this finding.

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The legal conclusion of the learned referee can not be sustained in our judgment in the absence of this finding of fact. We have carefully examined the cases referred to by him in connection with his conclusion that the description in the lien was certain to a common intent. We' have also examined many others, particularly as gathered together and discussed by Judge Bechtel in Holland vs. Garland, 13 Phila., 544, by Edward P. Allison, Esq., in his report as auditor in Packing & Provision Co.'s Est., 4 D. R., 57. While the cases are difficult to harmonize, yet one common criterion runs through the whole line where the validity of the lien depends upon the identification as a question of fact to be found by a jury; that is the presence of decisive characteristic circumstances. As for instance peculiarities of a building as described in the lien which would differentiate it, or, more generally, the fact that the owner had no other property on the street or in the locality described. Both of those means of identification where conspicuously absent in this case.

Short vs. Ames 121 Pa., 530, which was discussed by Mr. Allison in the case above referred to is in point. It was there held that a lien "for materials furnished for and about the erection and construction of several buildings and a certain oil refinery," without further description of the buildings and with an erroneous description of the locality where they are situated is radically defective under the provisions of Sec. 12 of the act of 16th June, 1836, relating to mechanic's liens. In that case the size of the buildings was not given.. In this case the size of the foundation only was given, but like the locality it was erroneous. Referring to Kennedy vs. House, 41 Pa., 39, and McClintock vs. Rush, 63 Pa., 203, upon which the claimant here relies, the Supreme Court by Mr. Justice Clark said: "It is said that if there be enough in the description of the locality and other peculiarities of the building to point out and identify it with reasonable certainty, it is a

sufficient compliance with the requirements of the act. But in this case the buildings are not described at all. There is an attempted description of the tract or piece of land upon which the buildings and refinery are erected; even this is erroneous, however, as the land is described as being in Foster Township, when in fact it is in Kendall borough; but there is no description of the structures themselves. The claim does not state whether the buildings are of brick or wood, it does not state their form, size, height, or the manner of their construction

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it is plain that the act of 1836 applies only to buildings erected.” The question that was raised by a feigned issue to try the validity of certain liens. The court below submitted the case to the jury, who found the facts in favor of the claimants and the judgment on the verdict was reversed without a venire.

I do not find that this case was called to the attention of or considered by the learned auditor. So far as his findings of fact and conclusions of law are in conflict with the views herein expressed, the exceptions are sustained, and the distribution set aside so far as it awards any part of the fund to the mechanic's lien, and the fund less the cost of audit is now awarded to the plaintiff.

In the Orphans' Court of Lackawanna County, No. Series. PETITION FOR LEAVE TO APPEAL FROM THE DECISION OF THE REgister refUSING TO REVOĶE PROBATE OF WILL.

Estate of Maria Donnelly Nallin, Deceased.

With the probate of the will the register's judicial powers cease. Under the constitution all questions thereafter touching the probate or the validity of the will are to be determined by the Orphans' Court, on appeal from the register's decision, when the proper issue may be framed.

A register is a statutory official and may exercise no powers except those expressly granted; and the only instance where he is authorized to revoke letters of any kind granted by him is contained in the 28th Section of the Act of 1832, where insufficient security has been given.

His power to revoke letters of administration rests on exactly the same ground as does his power to revoke letters testamentary and the latter power being declared unwarranted, it follows that the present practice of petitioning the register to revoke letters of administration must be abandoned.

The register has no power to review his action in probating a former wil. The proper course for a petitioner is to take an appeal to the Orphans' Couri from the action of the register in probating the first will and not from his refusal to revoke it.

Hon. J. J. O'Neill and Hon. T. J. Duggan for petitioner.

Messrs. M. J. Donahoe and T. J. Donahoe for respondent.

Opinion by Freas, P. J., of the Eleventh Judicial District, Specially Presiding. February, 1904.

The petition sets forth that the testatrix died July 7, 1903, leaving a will dated July 7, 1902, which was duly probated July 9, 1903. Subsequently a will dated April 16, 1903; was discovered, and on July 21, 1903, a petition was presented to the register praying for a rehearing and that the decree of probate of the will dated July 7, 1902, be set aside and the letters granted thereon be revoked. In pursuance of said petition, the register issued a citation to the parties in interest, who fiied an answer with the register, alleging that the will dated April 16, 1903, was procured by fraud and undue influence, and that at the time of its execution the testatrix did not possess testamentary capacity. Several hearings were had and testimony was taken. The register entered his decis on refusing to set aside the decree of July 9, 1903, probating the will dated July 7, 1902, and holding that the testatrix did. not possess testamentary capacity at the time the will of April 16, 1903, was executed by her. The petitioner in his present petition to the Orphans' Court, prays leave to enter his appeal in this court, and that a citation may issue to the parties interested in said estate commanding them to show cause why said appeal shall not be sustained and why the decision of the register shall not be set aside.

The appeal here is clearly from the last action of the register in refusing to set aside the probate of the will of July 7, 1902, and this requires us to review the practice in appeals from the decisions of the register.

Until the decision in Matthews vs. Biddell, 8.Superior Ct., 114, was rendered, the undoubted practice in contesting a will where a caveat had not been filed, and the will had been probated and after grant of letters, was to present a petition to the register, setting forth the facts and praying to be allowed a rehearing and that the letters previously granted be revoked, and from his decision on such petition an appeal was taken to the register's, now Orphan's Court. 3 Rhone O. C. Practice, 942; Farrell's Estate, I W. N. C. 15; Schaufuss' Estate, 5 Kulp, 275; Potts Estate, 37 L. I. 182; Commonwealth vs. Thomas, 163 Pa. 446; Hoopes' Estate, 152 Pa. 105; Irwin vs. Hawthorn, 1 Superior Ct. 152.

In Matthews ys. Biddell, 8 Superior Ct., 112, the register filed a bill of costs in the matter of rehearing on a petition praying for the revocation of the probate of a will. The register held several meetings