author: Read, J.

text:
    Ross et al. versus Baker.
    1. Land was sold by parol. The vendees took receipts from the vendor for the purchase-money, stating the amount paid to be for the u Fleming farm on French creek.” Held to be a sufficiently certain description.
    2. Canfield, by payment of purchase-money, was equitable owner of the *land, and sold to Ross, taking his receipt referring to the land, for the purchase-money. A deed was made to Canfield. Afterwards judgment
    was entered against him, and the land sold by the sheriff as Canfield’s. Announcement at the sheriff’s sale of Ross’s title, and other facts in the case, evidence for jury of notice to put the purchaser on inquiry.
    October 22d 1872.
    Before Thompson, O. J., Read, Agnew aud Sharswood, J.J.
    Error to the Court of Common Pleas of Crawford county: of October and November Term 1871, No. 117.
    This was an action of ejectment, by Sobieski Ross, Arch E. Jones, David E. Olassmire, Pierre A. Stebbins, Jr., Don Carlos Larrabee and Obadiah T. Ellison, against Adam Baker, for a tract of fifty acres in Eairfield township, brought February Í8th, 1869.
    The cause was tried May 16th 1871, before Lowrie, P. J.
    On the 14th of February 1865, James Martin conveyed to Horace R. Stout the land in controversy, the purchase was made with the money of Ira Canfield and Isaac Canfield, his son, they having thus the equitable title, by reason of the payment of the purchase-money.
    On the 2d of March 1865, the Canfields sold the premises for $8000 to the plaintiffs (except Ross), in different proportions, and gave a separate receipt to each of them for his part of the purchase money; Ellison’s part of the purchase-money was paid March 14th, and a receipt for it then given to him. Jones transferred to Ross, the other plaintiffs’ part of his proportion.

      Stout, by deed dated March 22d 1865, conveyed the land to Ira Canfield.
    On the 21st of July 1865, A. P. Funk recovered a judgment for $499.62 against the Canfields.
    Canfield, by deed dated September 1st 1865, conveyed the land to the plaintiffs : — this deed was recorded January 4th 1866.
    Execution was issued against the Canfields on Funk’s judgment, the land in question was levied on and sold to Robert Stitt for $740, and the sheriff’s deed by Stitt’s direction made to.Baker the defendant on the 17th of August 1866. There was evidence of notice at the sheriff’s sale and otherwise, that the land belonged to the plaintiffs, and that the Canfields had no interest in it.
    The evidence is so fully detailed in Justice Read’s opinion, that no further statement here is necessary.
    The court charged: — “ Whether the receipts of Canfields to plaintiffs are sufficient to pass any title as of their dates we reserve, as a point of law, for future consideration, and assume, for the present, that they are.

      “ If you believe that the purchaser at the sheriff’s sale had notice from the plaintiffs, or any one acting under them, of this earlier title, then the sheriff’s vendee takes no title by his deed. Mere loose rumors in the crowd, or indefinite warning by strangers, are of no avail. Notice that the Canfields had no title told only what appeared of record, and nothing about an earlier title in the plaintiffs. Notice, to be valid, ought to have directed bidders to the unrecorded title on which the plaintiffs relied, and to accessible means of ascertaining its nature and validity. Without this it may be a mere slander of title. Without such notice, the plaintiffs cannot succeed on that title. If they gave such notice their title is good.”
    The verdict was for the defendant.
    On the reserved point, Judge Lowrie said: — “ The receipts of Canfield & Son, to the plaintiffs, dated 2d and 14th March 1865, and given in evidence, we think are not sufficient to convey to the several plaintiffs the equitable title to this land as of their dates. They describe no land by either adjoinings, township or county, and there is no evidence that the land was known as the Fleming farm, the last receipt (to Ellison) is still more indefinite, therefore, judgment for the defendant on the reserved point.”
    The plaintiffs removed the record to the Supreme Court and assigned for error the charge of the court and entering judgment on the reserved point.

      JD. O. Me Coy and F. JB. Guthrie, for plaintiffs in error.
    — If inquiry be a duty, whatever puts a party on inquiry amounts to notice: Maul v. Rider, 9 P. F. Smith 167. No particular form of words is necessary for a contract for the sale of land: Colt v. Selden, 5 Watts 525; Lowry v. Mehaffy, 10 Id. 387; McFarson’s Appeal, 1 Jones 503. A receipt showing the terms of the bargain is enough: Shofshall v. Adams, 2 Grant 209.

      PL. L. Richmond (with whom were M. P. Davis and S. IY Pettis), for defendant in error.
    — The notice must be given by a person interested in the property, and in the course of the treaty for tho.purchase: Sug. on Yend. 276. It must be by direct information from a person who has an interest in the estate, or who may be affected by the purchase; Churcher v. Guernsey, 3 Wright 84; Jaques v. Weeks, 7 Watts 261; Kerns v. Swope, 2 Id. 75; Wildgoose v. Wayland, Goldsb. 147.
    January 6th 1873,
   The opinion of the court was delivered, by

Read, J.

— On the 14th of February 1865, James Martin conveyed the land in dispute to Horace R. Stout. This purchase was made at the instance of John Shaw, who was acting as the agent of Ira Canfield and Isaac Canfield his son. The Canfields furnished the money to pay for the land, and Stout conveyed the land to Ira Canfield on the 22d of March 1865. Whilst the Can-fields were the owners of the equitable title, the plaintiffs on the 2d of March 1865, with the exception of Ellison, who paid on the 14th of March, paid the Canfields for the land $8000, by which the whole equitable title became vested in the plaintiffs, Sobieski Ross having acquired an interest in the land, by an assignment from Jones of a part of his interest.

On the 1st of September 1865, Ira Canfield conveyed the land to the plaintiffs, by deed, which was recorded January 4th 1866.

There was no dispute between the Canfields and the purchasers, that the latter became the owners of the equitable title to the land in controversy, in the month of March 1865, and five receipts for the purchase-money were produced in evidence on the trial of the cause. Three of the receipts, embracing eight-sixteenths, were in the following form, varying only in the name of the purchaser, the amount of purchase-money and interest:—

“Received from D. C. Larrabee, five hundred dollars, for one-sixteenth full interest in the Fleming farm on French creek.
Titusville, March 2d 1865. Ira Canfield & Son.”
One receipt, was “ Received, Titusville, March 2d 1865, from A. F. Jones, three thousand dollars for six-sixteenths interest in the Fleming farm of 50 acres on French creek.
(Stamp 10 cents..) Ira Canfield & Son.”
The fifth receipt was in these words: “Received, Titusville, March 14th 1865, of O. F. Ellison, one thousand dollars, for one-eighth in fee in fifty acres on French creek, said land deeded to Ira Canfield & Son, and they hold the same in trust for the said O. F. Ellison, and are to deed the said one-eighth to him at his demand and option.
Ira Caneiedd & Son.”
On the trial the learned judge said: “ Whether the receipts of Canfields to plaintiffs are sufficient to pass any title as of their date, we leave as a point of law for future consideration.”

The reserved point was, “Are the receipts of Canfield & Son to the plaintiffs, dated 2d and 14th of March 1865, and given in evidence (fro wt receipts), sufficient to convey to the several plaintiffs the equitable title to this land as of their dates.” The court said, “ We think not. They describe no land by either adjoinings, township or county, and there is no evidence that the land was known as the Fleming farm, the last receipt (to Ellison) is still more indefinite, therefore judgment for the defendant on the reserved point.” Was the learned .judge right ? In Evans v. Prothero, 21 Law J. N. S. Chanc. 772, s. c. 13 Eng. L. & Eq. Rep. 163, where the documents had been rejected by Baron Parke on the trial of an issue from the Court of Chancery, for want of a sufficient stamp, the receipt was in these words:—

“ Received, this 25th day of August 1827, of Mr. Jenkyn Richards, now and before the sum of 212., being the amount of the purchase for three tenements sold by me adjoining the river Taff. Received the contents.
Witness, John Swaine. Evan Richards.”

The jury found motwithstanding in favor of the plaintiff on both issues. A motion was then made before Knight Bruce, V. C., for a new trial of the issues, and was refused. The defendants appealed from that order and the Lord Chancellor (Lord St. Leonards) said:—

“ This document, if receivable in evidence, would have proved the plaintiffs’ case undoubtedly. I am strongly of opinion that this document was admissible as evidence of the agreement, for on the face of it, it has every ingredient necessary to constitute a valid agreement within the Statute of Frauds. It contains the names of the seller and buyer, a description of the property sold, and the amount of the purchase-money. If I were to direct a new trial, I should not exclude this document, holding the opinion I have expressed that it is admissible as evidence of the agreement. I am perfectly satisfied that, in refusing this motion, I am not only saving the parties from ruinous litigation, but am furthering the ends of justice on the merits.”

This case had been three times tried, Justice Wightman and Baron Parke rejecting the document, and Baron Platt admitting it, and it was heard by V. C. Wigram, Lord Cottenham, Knight Bruce, and finally decided by Lord St. Leonards, and is incorporated by him in the thirteenth edition of his learned treatise on the Law of Vendors and Purchasers, pp. 105 and 461, as settled law.

In the ease before us the receipts contain the names of the seller and buyer, a description of the property, and the amount of the purchase-money and its payment. The Fleming farm is identified by Isaac Canfield, and the locality on French creek is quite as certain as adjoining the river Taff. There was, therefore, error in the decision of the court on the reserved point.

On the 31st July 1865, A. P. Funk obtained a judgment against Ira and Isaac Canfield for $499.62, on which execution was issued, the land in dispute levied on and sold by the sheriff to Robert Stitt for $740, and who made the deed to the defendant (to whom Stitt had sold his right), which was acknowledged August 17th 1866.

At the sheriff’s sale Isaac Canfield, Robert Stitt and Adam Baker, the defendant, were present. Isaac Canfield testified, “ I was present at the sheriff’s sale, and gave notice to the sheriff in the presence of the buyers, that we did not own the land. The plaintiffs also sent notice to the defendant by Gordonier. We called out that we had no interest in the land. We stood fifteen or twenty feet from the sheriff. I forbid, as my father and I did not own the land.”

James T. Morley sworn: “I was present at the sheriff’s sale. Notice given by Isaac Canfield to the sheriff and the crowd that neither he nor his father had any interest in the land. There was also a written notice much the same read by t|ie sheriff. I think Stitt then advised me not to bid. He thought it would end in a lawsuit.”

Daniel F. Glassmire, one of the plaintiffs, sworn: “ I was at the farm in the fall of 1867 or 1868. I asked Baker why he bought the farm when he knew the Canfields did not own it. He said, Finney had warranted he could hold it. I told him then, when we had bought. He said he had notice that other parties had bought. He knew of the notice at the time of the sheriff’s sale that the other parties owned it, and that after Stitt’s purchase he employed Finney to examine the title.”

Pierce A. Stebbins, a plaintiff, sworn: I sent notice to the sheriff of our claims! by Mr. Gordonier.”

Samuel M. Wills sworn: He went with Glassmere to see Baker. “ Baker said he had learned there was something wrong about it, and he would not buy until he had seen Finney.”

W. B. Gordonier, in his deposition, testified: I reside in Coudersport, Potter county, Pennsylvania. In the year sixty-six and sixty-seven I was operating in the oil regions; while there, I learned that the Canfields’ estate was all advertised for sale, and among others, the lot purchased by the plaintiff in this suit was advertised. I came home to Coudersport a week before the sale was to take place, at Meadville, and told the plaintiffs, that the lot was advertised as Canfield’s property. I was going to return immediately and did so. A. G. Olmstead, the plaintiff’s attorney, drew up a written notice of their title to the fifty acres in controversy, and sent it by me to be handed the sheriff of Crawford county, to be read at the sale. I got to Meadville and gave the sheriff the notice while the sale was pending. I knew the sheriff; his name' was Krick. Ira (Isaac) Canfield and a lawyer McAlister were present at the time, and others who were strangers. The sheriff took the notice and made the remark that notice had already leen given of that title. I heard the sheriff, Canfield and McAlister all say that notice had been given already. I then said to the sheriff, that the parties in Coudersport had requested me to hand him the notice and have it read, and he said as notice had already been given, this sale would not affect their title.”

It is clear that at the time of Funk’s judgment, the Canfields were not the owners of the land in dispute, but that the whole equitable title to it was in the plaintiffs. The only question therefore is, was the defendant conusant of the plaintiff’s title, or had such information or notice as to put him on inquiry which would lead to a knowledge of the requisite fact by the exercise of ordinary diligence and understanding. The cases of Barnes v. McClinton, 3 Penn. Rep. 67; Hill v. Epley, 7 Casey 331, and Owens v. Myers, 8 Harris 134, fully establish this doctrine, and the vigorous language of Chief Justice Gibson in the first case is well worthy of an attentive perusal. The evidence above stated shows clearly that the Canfields publicly disclaimed all title to the land, naturally in reference to the time when the judgment was entered. Stitt the bidder put this construction upon it, for Morley says: “I think Stitt then advised me not to bid; he thought it would end in a lawsuit.” The defendant said, “ He had notice other parties owned it. He knew of the notice at the time of the sheriff’s sale, that the other parties owned it, and that after Stitt’s purchase, he employed Finney to examine the title,” which Mr. Finney did, and upon the same state of facts probably was of the same opinion with the learned judge. Gordonier’s evidence shows plaintiff’s title was known at the sale. “ The sheriff took the notice and made the remark that notice had already been given of that title,” and he said “as notice had already been given this sale would not affect their title.”

Upon such evidence, it is certain if believed, the jury might have found that the defendant had notice and full knowledge of the title of the plaintiffs.

The charge of the learned judge “ That notice from the plaintiffs or any one acting under them of this earlier title, then the sheriff’s vendee takes no title ” was calculated to mislead the jury by confining the notice really to the plaintiffs only and excluding all notice by the Canfields, and all actual knowledge of the plaintiffs’ title by Stitt on the defendant.

The circumstances attending the sale show this to be a correct view. The plaintiffs in March 1865 paid for this land $8000 in cash. The judgment was for $449.62, and the sale in the summer of 1866 was for $740, or less than one-tenth of the price paid by the plaintiffs; pregnant proof of knowledge of the title of the plaintiffs by the bidders at the sheriff’s sale.

A decision made to-day makes it necessary, the receipts should be properly stamped before they are again offered in evidence.

Judgment reversed and venire de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Dorsey and Macklin, and Donnelly & Co.’s Appeal.
    1. The title of an act was “An Act relating to the liens of mechanics, material-men and laborers upon leasehold estates, &c.;” one section extended the liens to freeholds : Held tobe unconstitutional, “freeholds” not being a subject clearly expressed in the title.
    2. “ Leaseholds ” excludes estates of a higher grade.
    3. The title of an act should be so certain as not to mislead.
    4. Blood v. Mereilliott, 3 P. P. Smith 391, limited.
    October 22d 1872.
    Before Thompson, C. J., Read, Agnew, ,nd Sharswood, JJ.
    Appeal from the Court of Common Pleas of Venango county: No. 114, to October and November Term 1871.
    In the distribution of the proceeds of the sheriff’s sale of the of G-ood & Harris. The property sold was real estate held by them in fee; and personal property consisting of engine, engine-house, and other machinery, &c. The proceeds of the personal property amounted to $1405, and of the real estate $678.
    The personal property was sold under several writs of fieri facias, and the real estate was sold under a levari facias on a judgment in a scire facias on a lien, for materials and labor, entered by virtue of an act passed April 8th 1868 (Pamph. L.752; 2 Br. Purd. 1029, pi. 26 et seq.,) hereafter set out. There were other judgments entered against the defendants. The question in the case was whether the mechanics’ liens attached by virtue of the Act of 1868, so as to take the fund, in preference to the judgments; and this depended on the constitutionality of the Act of 1868.
    The title of that act was: — “An act relating to the liens of mechanics, material-men and laborers upon leasehold estates and property thereon in the county of Yenango.”
    It enacted: Sect. 1st. That all persons furnishing materials for or about the erection, construction or repair of any engine, engine-house, derrick, tank, machinery, or wood or iron improvement or for or about any building which may be constructed, erected or repaired upon any leasehold, lot or parcel of ground, or material furnished necessary for the improvement or development thereof, held by written lease for any term of years, and which shall or may be so constructed, erected or repaired by the tenants or lessees of said leased estate, or for them or for their use and benefit, shall have a lien upon all such engine or engines, material, machinery, buildings, tanks, wood or iron improvements as may be upon or pertaining to said leasehold, lot or parcel of ground at the time such claim may be filed as hereinafter provided, together with the lease, lot or parcel of ground on which the same is situated, for the price and value of the materials so furnished. Provided, That the lien hereby given shall extend only as to such lease or lot to the interest of the lessee or lessees, tenant or tenants therein.
    Sect. 2. That all persons doing work for, on or about the erection, construction or repair of any engine, engine-house, &e., whether such labor is or may be done by the day, month or year or by contract, for the tenant or tenants, lessee or lessees of such lot or lease of parcel of land or for-their use and benefit, shall have a lien upon the personal property and fixtures on said lot or lease of ground and upon such lot or leasehold itself, for the price and value of such work and labor. Provided, That such lien shall extend as to said lot or leasehold only to the interest of the tenant or tenants, lessee or lessees thereon.”
    “ Sect. 6. The provisions of the Act of June 16th 1836, and supplement approved the 1st day of May 1861, relating to the liens of mechanics and material-men upon buildings, are hereby extended to all laborers, and to all work done, whether by the day, month, year or contract, for or about the drilling, boring afid mining, and for or about the construction, erecting or repairing of any engine, buildings, tanks, derricks, machinery, wood or iron improvements which may be made or done for the mineral development or improvement of any land, and to all materials furnished for the improvement or development thereof and for or about the construction, erection or, repair of any engine, building, tanks, derricks, machinery, wood or iron improvements thereon.”
    This act relates to Venango county only.
    The Act of 1836 (Pamph. L. 696, 2 Br. Purd. 1025) gives a lien to mechanics and material-men on buildings and on the ground of the owner necessary for the useful purposes of the buildings. The Act of 1861 (Pamph. L. 550, 2 Br. Purd. 1028, pi. 20) extends such liens to debts for repairs, &c.
    The distribution was referred to J. D. McJunkin, Esq., who decided that the mechanics’ liens were not valid because “ there was no leasehold connected with any of the property that the defendants owned; ” that the 6th section of the Act of 1868 was ■unconstitutional because the Act of 1868 related to two subjects, viz.: leaseholds and freeholds, and the subject is not clearly expressed in the title as required by the 2d amendment of 1864 to the Constitution of this Commonwealth.
    He therefore distributed the proceeds of the personal property to the writs of fi. fa. in the order of their issue and the proceeds of the real estate to the judgments in the order of their entry, and excluded the mechanics’ liens.
    Upon exceptions, the Court of Common Pleas, Trunkey, P. J., reversed the distribution, and distributed the fund to the mechanics’ liens, holding that the 6th section of the Act of 1868 was constitutional.
    Dorsey andMacldin, and Donnelly & Co., judgment-creditors of the defendants, appealed to the Supreme Court, and assigned for error, that the court below erred in deciding that the 6th section of the Act of 1868 is constitutional, and distributing the funds to the mechanics’ liens.

      E. L. Keenan and James B. KaneoaJc, for appellants,
    cited Grubbs v. State, 24 Ind. 265; Indiana Central Railroad v. Pott, 7 Id. 681; Prosher v. Orr, 12 Ga. 36; Fishkill v. Fishkill & Beekman Plank R., 32 Barbour 634.

      Sherman Beebe and Barry ‡ Johns, for appellees,
    cited Sharpless v. Philadelphia, 9 Harris 147; Penna. Railroad v. Riblet, 16 P. F. Smith 164; Sun Ins. Co. v. New York, 4 Selden 241; People v. McCann, 2 Smith (N. Y.) 58; State v. County Judge, 2 Iowa 280; Blood v. Mercilliott, 3 P. F. Smith 391.
    November 4th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— The question in this case is between the mechanics’ claim creditors and the judgment creditors. The court ■below decided in favor of the mechanics’ liens, reversing the report of the auditor who had found the other way. The case arose under a special act, and the objection is that freehold estates are not within the title of the act, and therefore that the sixth section, under w'hich these claims were filed, is unconstitutional. The title is “An act relating to the liens of mechanics, material-men and laborers upon leasehold estates and property thereon, in the county of Yenango.” The estate sold by the sheriff was a fee-simple, and not a leasehold. Eeasons might be given why leaseholds should be subjected to a lien for work and materials, when a freehold would not be. The former are often of short duration, and ■ engines, derricks, machinery, and even buildings may be removed therefrom during the term. But it is sufficient that the legislature has, by the title of the act, clearly confined the lien to leaseholds. This description ex vi termini excludes estates of a higher' grade. The second amendmenit to the Constitution, adopted in 1864, provides that “ no bill shall be passed by the legislature containing more than one subject, which shall be clearly expressed in the title, except appropriation bills.” The word “subject” has a large signification, often embracing different kinds, different classes, and various modes, all belonging to the general subject. The word estates is itself an example, embracing fees, fee tails, estates for life, and estates for years, commonly called leaseholds. Had the qualifying term leaseholds ” been omitted in this title, all the various kinds of estates of freehold would have been comprehended within the title, and the sale of a freehold interest under the lien would have been good. Mere generality of meaning in the title ought not to avoid a law. For instance, the title, “An act relating to executions,” is quite general as an expression of the subject of the act; yet no one could doubt the power of the legislature, under this title, to provide for the various kinds of executions generally comprised within the term execution; as for example writs of fieri facias, liberari facias, levari facias, venditioni exponas, &c. So an act relating to actions might include covenant, case, debt, &c. But a restriction in a title, which tends to mislead, stands on a different footing. The purpose of the amendment is to prevent a number of different and unconnected subjects from being gathered into one act, and thus to prevent unwise or injurious legislation by a combination of interests. Another purpose was to give information to the members or others interested, by the title of the bill, of the contemplated legislation ; and thereby to prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the bill. The amendment was found necessary to correct the evils of unwise, improvident and corrupt legislation, and therefore is to receive an interpretation to effectuate its true purpose. It would not do to require the title to be a complete index to the contents of the bill, for this would make legislation too difficult, and bring it into constant danger of being declared void. But on the other hand the title should be so certain as not to mislead. The language of the amendment is “ one subject which shall be clearly expressed in the title.” To be clearly expressed ” certainly does not mean something which is dubious, and therefore is not clearly expressed. If then the title seems to mean one thing while the enactment as clearly refers to another, it cannot be said to be clearly expressed. Now in the present case the words leasehold estates certainly do not express estates of freeholds. Perhaps a very cautious man might look into the body of a bill with this title to see whether other articles were embraced in it, but certainly only a few persons would think it necessary. We think the title does not even point to freehold estates, and therefore that the sixth section of this act is not constitutional.

The case of Blood v. Mercelliott, 3 P. F. Smith 391, is not opposed to this reasoning. It was a very close case, standing on the border of the Constitution; but the re-location of the county seat was not thought to be so entirely foreign to the subject of the bill, as to demand a decision against the constitutionality of the law. It is not probable that a case exactly similar to it will again arise, and therefore it should not be used to carry other cases beyond the clear language of the constitutional provision. Certainly nothing was said in that case which would justify us in declaring that there is no difference between a leasehold and a freehold and that the former comprehends estates in fee simple.

The decree of the court below is reversed, and it is now ordered and decreed that the report of the auditor be adopted and distribution made in accordance therewith, and the costs of this appeal be paid by the appellees.


author: Sharswood, J.

text:
    Erie versus Bootz.
    1. Implied repeals are not favored. If two statutes can stand together, | the latter does not abrogate the former.
    2. The whole course of legislation is to be so construed that every part and word shall have its effect, if it consistently can, and the will of the legislature be completely executed.
    3. An Act in 1861 authorized city councils to improve streets, and levy the cost on owners of property on the streets, but such improvement should not be ordained except on the petition of a majority of the property-owners on the street to be improved. A section of an Act in 1864 gave councils power to ordain improvements by a vote of two-thirds, without petition, &c. Held, the last act did not repeal the first.
    4. By an Act in 1868 councils could improve whenever a majority of owners, &c., should petition, “and not otherwise,” except when the ordinance for the improvement should order the payment from the city funds. This act repealed the section of the Act of 1864.
    5. The Act of 1861 provided that if notice were given by publication, &c., of the improvement prayed for, the question whether a majority of owners had petitioned should “cease” after the passage of an ordinance for improvement. This was not repealed by the Act of 1868.
    6. A petition was presented to the councils asking for improvement of a street; notice of it was given in the official paper; a committee of councils reported that a majority of owners desired the improvement, the councils then ordained the improvement. Held, that this action was conclusive.
    October 22d 1872.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Erie county: No. 137, to October and November Term 1871.
    This was a scire facias on a lien for a municipal claim issued February 20th 1870, by the city of Erie against a piece of land fronting on Peach street, and Jacob Bootz owner. The lien was for the amount assessed for making a pavement in Peach street. The city of Erie was incorporated by Act of May 1st 1861.
    Sect. 1. Authorizes the city councils “ to cause to be graded, paved, macadamized, repaired or otherwise improved, any public street or part thereof, which is now or may hereafter be laid out and opened in said city, and have the said street, or part of street, set with curbstone; and * * to provide, by ordinance, for the levy and collection of the cost and expense of work and materials used therefor, from the owners of the property bounded by and abutting on said street, or part of street, by an equal assessment on said property in proportion to the number of feet the same fronts on said street, or part of street: Provided, That said councils shall not order any street, or part of street, to be paved, graded-, macadamized or set with curbstone, except upon the petition of a majority of the persons holding or owning property on said street, or part of street, so proposed to be graded, macadamized or set with curbstone.
    “ Sect. 2. When the said councils shall, by ordinance, direct the grading, &c., the question whether a majority of persons holding or owning property thereon have petitioned therefor, shall cease and determine: Provided, That no ordinance for any of the above-named purposes shall be passed, until--days’ notice of the improvement prayed for has been given in the official paper of the city.”
    The charter was amended April 30th 1864, which provided,
    Sect. 15. That the said councils shall have power to order the paving of any street, or part of street, in said city by a vote of two-thirds of the members elected to each council, without the petition, or proceedings thereon, now required by the acts relating thereto.
    A further supplement of April 2d 1868 provides:—
    Sect. 13. That the mayor and councils shall have the power to construct sewers along any of the squares or blocks of the streets of the said city, and make pavements on the same, whenever the majority of the owners of property on both sides and facing said streets shall petition for the same, and not otherwise, except when the ordinance directing the same shall provide for payment of the cost thereof out of the general funds of the city.
    Sect. 15. So much of any Act of Assembly as conflicts with the foregoing act, is hereby repealed.
    The cause was tried, April 4th 1871, before Wetmore, P. J.
    The plaintiff gave in evidence:—
    Petition of citizens on Peach street for paving that street which was referred to a committee of each council, May 11th 1868; publication May 12th of these proceedings in the “ Erie City Dispatch,” the official paper of councils; report of the committees May 25th that a majority of owners of real estate on Peach street were in favor of the pavement; ordinance June 2d, directing paving of Peach street and the assessment of the cost on the owners of the real estate fronting on the street: publication of subsequent proceedings of councils in relation to the pavement.
    Plaintiff gave evidence also of the cost of the pavement, the assessment on defendants’ property, demand of payment from defendant and entry of lien, amounting to $527.10; and rested.
    The defendant offered evidence for the purpose of showing that the petitions for paving did not contain a majority of owners of property.
    This offer was objected to by plaintiff, admitted by the court and a bill of exceptions sealed.
    He then gave evidence in accordance with his offer.
    ■ The plaintiff submitted these points which were refused :—
    2. The city councils being a legislative body, the presumption of law is, that all the law requires to be done, has been done that related to the enactment of ordinances and the levying of taxes for municipal purposes.
    3. The defendant and others having failed to take the proper and necessary steps, as provided by law, for remonstrating against the enactment of the ordinance for the pavement of Peach street, he is now estopped from denying that a majority of the property-owners did sign the petition asking for the passage of said ordinance for the purpose aforesaid.
    4. The defendant cannot, after having filed a plea in bar, take any advantage of any irregularities in the filing of the lien. The same should be taken advantage of by motion to strike off lien, or by demurrer.
    5. The defendant enjoying all the advantages arising from said improvement, and having neglected to put the city authorities on their guard in the manner provided by law, cannot at this late date under the pleadings, claim that the ordinance for paving said street, was irregularly enacted.
    6. The reputed owner of property and in possession, on and along a street, would have the right to sign a petition for the paving of said street, and it would not be incumbent on the plaintiff to show actual title in the party so signing.
    7. The title of property being in the wife, the law treats the husband as her agent, and any agreement made by him for the improvement of her estate, would be binding on her. More especially if while said improvement is going on, she quietly acquiesces in the same and gives the party no notice.
    The defendant submitted these points which were affirmed:—
    1. To give the councils jurisdiction of the subject-matter, the petition asking for the making of the pavement, must be signed by a majority of the persons holding or owning property on that part of the street proposed to be paved. If the jury find from the evidence that said petition was not signed by a majority of persons holding or owning property on Peach street, between the north side of the Public Square and Fifteenth street, the plaintiff cannot recover.
    2. If the jury find from the evidence that there are the names of persons on the petition, in whom there was not, at the time of signing any estate in fee simple, fee tail, for life, or a perpetual leasehold, or for a term of years, by lease or otherwise, not less than for twenty years, such names, if any, must be excluded from the count.
    4. If the jury find that there was not a majority of the persons holding or owning property on Peach street between the north side of the Public Square and Fifteenth street, signed the petition for the making of said pavement, the council had no jurisdiction and all their action in the premises was null and void.
    The verdict was for the defendant. The plaintiff took a writ of error, assigning for error, the denial of plaintiff’s points and the affirmance of the defendant’s.

      J. JR. Thompson and J. JET. Walker (with whom was JEJ. Babbitt), for plaintiff in error.

      C. B. Curtis and J. C. Marshall (with whom was F. F. Marshall), for defendants in error.
    October 28th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— The question presented for our determination upon this record lies within a very narrow compass. The general principles of the law upon the subject of the implied repeal of statutes are well settled by the decisions, and indeed are not in dispute. Implied repeals are not favored. If two statutes can stand together, the posterior does not abrogate the prior. This is indeed but the application of a general canon of interpretation— that the whole course of legislation, like the whole of a deed or other instrument of private parties, is to be so construed that every part and every word shall have its effect, if it consistently can, and thus the will of the legislature be completely carried into ex-L ecution. It follows clearly that the Act of April 10th 1864, Pamph. L. 672, repealed no part of the Act of May 1st 1861, Pamph. L. 614. Under these-two acts there were two modes provided by which streets in the city of Erie could be ordered to be paved by the municipal authorities: First, upon the petition of the majority of the owners of property fronting on the street, according to the Act of 1861, and second, by a vote of two-thirds of the members of each branch of the councils, by the Act of 1864, without any petition. Both these modes were then subsisting, when the Act of April 2d 1868, Pamph. L. 610, was passed, which provided that the mayor and councils should have power * * * to make pavements * * * whenever the majority of the owners of property on both sides and facing the streets should petition for the same, and not otherwise ; except where the ordinance directing the same should provide for payment of the cost thereof out of the general funds of the city. This section was certainly repugnant to and therefore repealed the provision of the Act of 1864 on the sub- , ject, unless perhaps where the exception applied, which it is not necessary now to decide. Had this section been without the words “ and not otherwise,” it would scarcely have admitted of a doubt that its meaning was simply that no street should be paved except upon a petition of a majority of the owners, according to the Act of 1861. It makes no provision for the assessment of the cost upon the owners. It is not to be supposed that the provisions of the Act of 1861 as to that were intended to be repealed, and that while a petition of the majority of the owners was required, the cost was to be paid out of the treasury by taxation at large. We cannot see, therefore, that the words “not otherwise ” have any such controlling effect. If this be so, which indeed has not been controverted, did these words ex necessitate operate to repeal the second section of the Act of 1861, which declared that upon the passage of an ordinance for paving any street “ the question whether a majority of persons holding or owning property thereon have petitioned therefor, shall cease and determine?” We think not. It is to be observed that this section was modal merely, in fact a part of the proceedings under the act — as much so as the third section, which defined who should be regarded as owners of property. It was not only important that this should be settled, but that the question of the numbers should be conclusively determined before the expense of the improvement should be incurred. If it were left open for contest, no street could be paved without leading to a controversy upon the subject. With this view public notice was provided for, so that all who had an interest might have an opportunity to he heard, and the decision of the councils was made final and conclusive.

Judgment reversed, and venire facias de novo awarded.


text:
    Schlaudecker versus Marshall et al.

    Act of May 10th 1871 required the Quarter Sessions to appoint a of license, “with the same authority to grant licenses to taverns, &c., city of Erie, as the Quarter Sessions by law now has;” the provisions the Act of March 31st 1856; sect. 8, to be complied with before granting Held, that the authority of the board was to be ascertained by the law as to the Quarter Sessions at the passage of the act.
    2. The board had a discretion, and could not be compelled by mandamus to grant license.
    3. The discretion exercisable by the Quarter Sessions as to licenses is a sound discretion on the circumstances of each case, not on a general opinion on the propriety of granting license.
    4. Whether licenses should be granted is a legislative, not a judicial opinion.
    5. It is the duty of the tribunal to hear and determine each case, to ascertain the fitness of the applicant, the necessity for his house for public accommodation, and that he has fully complied with the law.
    6. The Acts of Assembly, in relation to tavern licenses, examined and construed.
    October 24th 1872.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Erie eounty: of .October and November Term 1872, No. 114.
    The writ of error in this case was to the judgment of the court below refusing to award a mandamus to compel James C. Marshall and others composing the Board of Licensers of the city of Erie to issue a license to Frank Schlaudecker to keep an eating-house in that city.
    By the Act of May 10th 1871, the Court of Quarter Sessions of Erie county was required at February term of every year to appoint a board of licensers, with the same authority to grant licenses as the Court of Quarter Sessions had. All applications to this board for licenses were required to be filed with the clerk of the Quarter Sessions, in accordance with the 8th section of the Act of March 81st 1856 (Pamph. L. 201, 2 Br. Purd. 942, pi. 13). Licenses might be granted to keep eating-houses, which authorize the sale of liquors, foreign and domestic wines, &c. The board were to meet on the 1st Monday in April in each year, hold adjourned-meetings, &c.
    In March 1872 Schlaudecker filed his petition, setting out that he was a citizen of the United States, of temperate habits and good moral character, well provided with house-room, &c., for the accommodation of the public and entertainment of strangers and travellers, and asked for license to keep an eating-house at the place designated in his petition.
    Attached to his petition was a recommendation as required by law, signed by twelve citizens of the ward in which the house was located; with the petition he filed a bond with two sureties conditioned according to the Act of Assembly.
    The board declined to grant the license.
    Schlaudecker on, the 7th of May 1872, petitioned the Court of Common Pleas, setting out his application to the board of license, and their refusal, as above stated, and prayed for a mandamus commanding them to grant a license to him. On this petition the court granted a rule on the board to show cause why a mandamus should not be awarded as prayed for.
    The respondents answered, amongst other things, that “ There were thirty-one applications for tavern license, eight for wholesale liquor license, and ninety-five for eating-house license, of which the board granted twenty-five tavern licenses, six wholesale liquor licenses and thirty-nine eating-house licenses. Judging that they had granted a sufficient number of licenses in those different branches to accommodate the public and entertain strangers and travellers; * * * the respondents did adjudicate upon said application and refused the license so applied for.
    “ The respondents claim that under the Acts of Assembly, giving to the Court of Quarter Sessions power to grant licenses to vend liquors by hotel-keepers and eating-house keepers — In order to entitle the applicant to a license there are three facts absolutely to exist, to wit: 1st, The place proposed to be licensed is necessary to accommodate the public. 2d, That the applicant is of good repute for honesty and temperance; and 3d, That he is well provided with house-room. On failure in any one of these prerequisites the Court of Quarter Sessions has no power to grant the applicant a license. The board of licensers for the city of Erie possess the powers of the court, no more nor no less.
    “ The respondents answer and say that they claim it is not only simply their privilege, but an important duty enjoined on them by law fully and carefully to examine every application for license, and when they are found to be in form according to the provisions of the Act of Assembly, that would constitute a primá, facie case. Then it becomes the duty of the board, particularly when there are one hundred and thirty-four applications for license to deal out spirituous liquor in a city of a population of about twenty thousand, first, To see if the public interest requires that number to be licensed; second, Is the applicant a person of good repute for honesty and temperance ? and third, Has he the necessary houseroom ? These facts the board has to ascertain from evidence or personal inspection, and thereupon to judge and determine upon all the cases submitted to the board. These respondents claim that it is their duty, in discharge of' an obligation they owe to the public, not to take the certificate of the twelve citizens as conclusive as to the necessity of the tavern or eating-house for the public accommodation, as to the honesty and temperance of the applicant, and as to his being provided with house-room, but to examine into the matter and upon a full and careful investigation to decide who shall have license and who shall not. These respondents did decree upon Mr. Schlaudecker’s application and rejected it, and believe they acted in accordance with the law in so doing.”
    On the 7th of May 1872 the court discharged the rule, and this writ of error was taken by Sehlaudecker.

      J. Ross Thompson (with whom were Q. P. Biddle and Gi. A. Allen), for plaintiff in error,
    referred to the above-cited Acts of Assembly ; Acts of April 20th 1858; April 11th 1859, Pamph. L. 653, 2 Br. Purd. 943, pl. 15, 16; April 10th 1849, Pamph. L. 574. The words “shall” or “may” are to be construed imperatively; Attorney-General v. Lock, 3 Atk. 164; Turnpike v. Miller, 5 Johns. Ch. 101; Minor v. Bank, 1 Peters 64.

      F. P. Longstreet (with whom was 8. P. Longstreet), for defendants in error, referred to the same Acts of Assembly.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— In the court below this case was a rule for a mandamus to compel the board of licensers of the city of Erie to grant a license to the plaintiff in error to keep an eating-house.

The rule was discharged, and hence this writ of error. The real question in the case is upon the nature and extent of the discretion to be exercised by the board of licensers in granting or refusing licenses for eating-houses. It arises under the Act of 10th May 1871, P. L. 728, giving to thé board “the same power and authority to grant licenses in the said city of Erie as the Court of Quarter Sessions by law now has.” The requirements of the application for the license are governed by the 8th section of the Act of 31st March 1856, P. L. 201. See section 2d, Act 10th 1871. But the power and authority of the board in acting on the application are to be ascertained by the state of the law as to the Court of Quarter Sessions, at the date of $ie Act of 1871. This involves an attentive examination of the legislation of the state for a series of years, a subject of no small difficulty, owing to the fluctuations in the legislature as the temperance or liquor interests prevailed.

The initial point of modern legislation on the subject of licenses, may very properly be said to be the Act of 11th March 1834, P. L. 117, reported by the revisers of the code as the result of all the then existing laws, together with their own modifications and amendments. The discretion conferred upon the Court of Quarter Sessions by this act will be stated hereafter, when we come to the reviving Act of 14th April 1859, P. L. 653. For twenty-one years the Act of 1834 remained without material change. In 1855, the temperance reform movement prevailing in the legislature, the Act of 14th April 1855, entitled “An Act to restrain the sale of intoxicating liquors,” was passed, P. L. 255. This act was nearly prohibitory in its terms, and in derision was called the “ Jug Law.” It lasted but a year and was overthrown by the Act of 31st March 1856, P. L. 200, entitled “An Act to regulate the sale of intoxicating liquors,” an act passed through the influence of what was then known as the “Liquor League.” The Act of 1856 was considerably modified by the Act of 20th April 1858, P. L. 365, and the two, with a few alterations since adopted, form the basis of the present system of licenses for the sale of intoxicating liquors.

Under the Act of 1856 the discretion of the court in granting licenses differed somewhat, but not greatly, from that given by the Act of 1834, and was regulated by the sixth section, which required the court to fix by rule or standing order a time at which applications for license should be heard, and when all persons applying or making objections might be heard by evidence, petition, remonstrance or counsel. This provision was essentially changed by the sixth section of the Act of 1858, which made the granting of the license mandatory “ to citizens of the United States of temperate habits and good moral character, whenever the requirements of the laws on the subject are complied with by any such applicant, to sell the liquor aforesaid for one entire year from the date of his license: Provided, That nothing herein contained shall prohibit the court from hearing other evidence than that presented by the applicant for license: And provided further, That after hearing the evidence as aforesaid, the court, board of licensers or commissioners shall grant or refuse a license to such applicant in accordance with the evidence.”

This act took away the discretion which the courts had exercised under the Acts of 1834 and 1856, and made it a matter of legal judgment on the evidence. The temperance movement rallying again effectuated the passage of the Act of 14th April 1859, P. L. 653, in these words: “ That it shall be lawful for the several Courts of Quarter Sessions of this Commonwealth to hear petitions, in addition to that of the applicant, in favor of and remonstrance against the application of any person applying to either of them for a license to keep a hotel, inn or tavern, and thereupon to refuse the same, whenever, in the opinion of said court, such inn, hotel or tavern is not necessary for the accommodation of the public and entertainment of strangers and travellers. And so much of the sixth section of the Act of Assembly relating to the sale of intoxicating liquors, passed the 20th day of April, A. D. 1858, as is inconsistent herewith, is hereby repealed: Provided, That the several Courts of Quarter Sessions empowered to grant licenses shall have and exercise such discretion, and no other, in regard to the néeessity of inns and taverns, as is given to' said courts by the act relative to inns, approved 11th March 1884.” Thus the discretion of the courts upon the necessity of inns and taverns was turned back upon the Act of 1834, the first section of which merely empowered the court to grant such licenses. The third section provided that “ no court shall license any inn or tavern which shall not be necessary to accommodate the public and entertain strangers and travellers.” The fifth section further enacted that “ no court shall license any person to keep an inn or tavern unless from the petitions and certificate or from their own knowledge or upon evidence sought for and obtained, they shall be satisfied of the fitness of the person applying and the sufficiency of the accommodations as aforesaid.” The fourth section had provided that no court shall grant a license unless upon a certificate of twelve citizens, setting forth the necessity of the inn or tavern to accommodate the public and entertain strangers and travellers, and the good reputation of the applicant for honesty and temperance, and his being well provided with house-room and convenience for the accommodation of strangers and travellers. The bearing of the Act of 1834 upon the discretion of the court is noticeable in the negative character of its provisions to prevent granting unnecessary licenses. The nature of this discretion will be discussed after noticing the legislation on the subject of eating-houses or restaurants as they are termed. They were provided for in the Act of 10th April 1849, P. L. 570, the 20th section of which forbade them from being kept without a license first obtained from the county treasurer, and provided for classifying and rating them. By the Act of 1856 the mode of granting licenses to eating-houses was changed and given to the Court of Quarter Sessions, as may be seen in the 6th, 7th, 8th and 14th sections. The Act of 1858 again changed the manner of granting them, dispensing with the certificate required by the 8th section of the Act of 1856, and returning the power of granting the license to the county treasurer. See sect. 10, Act 1858, P. L. 367. Under this section the treasurer exercised no discretion, except to see that the applicant had complied with the requisites of the law. This was changed after-wards, as to the counties of Erie, Warren and Clinton, by the Act of 11th April 1866, P. L. 560, which adopted the provision for the borough of Warren, contained in the Act of 22d April 1863, P. L. 534, enacting “ that all licenses for the keeping of eating-houses, which shall authorize the sale of domestic wines and malt and brewed liquors within the borough of Warren, Warren county, shall hereafter be granted only by the Court of Quarter Sessions of said county, in the same manner and subject to the same restrictions as licenses to hotels, inns and taverns are now granted, except that said eating-houses shall be classified and rated as provided by existing laws.” This local act was superseded by the general Act of 22d March 1867, P. L. 40. The first section put the hearing of all applications for licenses to sell intoxicating drinks on the same footing, directing that it should be lawful for said court to hear petitions in addition to that of the applicant, in favor of and remonstrance against the application for such licenses; and in all cases to refuse the same, whenever, in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public and entertainment of strangers and travellersand upon sufficient cause shown to re-vote any license granted by them. The second section expressly directs that applications for license to keep- an eating-house or restaurant shall be made in the same manner and to the same authority as applications for license to keep a hotel, excepting that the regulation as to bed-rooms shall not apply; and also repeals expressly the authority in the 10th section of the Act of 1858, conferred on the county treasurer to grant licenses to eating-houses and retail breweries. In conclusion, therefore, we find that the granting of licenses to hotels, inns, eating-houses and restaurants, all stand on the same footing as to the authority to which the power is confided, and it now remains only to inquire into the nature and true character of the discretion to be exercised by the Court of Quarter Sessions in granting these licenses.

No subject has been productive of more difference of opinion and practice than this in the different judicial districts of the state. Some judges holding it to be obligatory on the court to grant every license where the applicant has brought himself within the provisions of the law as to the terms of his application, and others holding that they are not bound to grant any license whatsoever. Clearly neither opinion is right; the discretion which the court exercises being a sound discretion upon the circumstances of each case as it is presented to the court, and not a general opinion upon the propriety or impropriety of granting licenses.

Whether any or all licenses should be granted is a legislative, not a judicial question. Courts sit to administer the law fairly, as it is given to them, and not to make or repeal it. The law of the land has determined that licenses shall exist, and has imposed upon the court the duty of ascertaining the proper instances in which the license shall be granted, and therefore has given it to the court to decide upon each case as it arises in due course of law. The act of deciding is judicial, and not arbitrary or wilful. The discretion vested in the court is, therefore, a sound judicial discretion ; and to be a rightful judgment it must be exercised in the particular case and upon the facts and circumstances before the court, after they have been heard and duly considered; in other words, to be exercised upon the merits of each case, according to the rule given by the Act of Assembly. To say that I will grant no license to any one or that I will grant it to every one is not to decide judicially on the merits of the case, but to determine beforehand without a hearing or else to disregard what has been heard. It is to be determined not according to law, but outside of law, and it is not a legal .judgment, but the exercise of an arbitrary will. Discretion is thus described: “ Where anything is left to aiiy person to be done according to his discretion the law intends it must be done with a sound discretion and according to law, and the Court of King’s Bench hath a power to redress things that are otherwise done, notwithstanding they are left to the discretion of those that do them,” Tomlin’s Law Diet., vol. 1, tit. “ Discretion.” “ And though there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it:” Ibid. It is the duty of the court, therefore, to hear and determine each case on its evidence and facts; to ascertain the fitness of the applicant, the necessity of his house for the public accommodation as a hotel or as an eating-house (and this involves the number of each in the particular locality), and to see that the applicant has fully complied with the law, before his license can be granted. This is a large discretion, and is to be exercised primarily for the public good and secondarily for the private interest; and this being the power and authority of the Court of Quarter Sessions, is the measure also of the duty of the board of licensers. It is an error to suppose, as argued by the plaintiff in error, that the sole duty of the board is confined to the inquiry whether the applicant is a citizen of the United States, and is a man of good moral character and temperate habits. The mandamus was properly refused, and the order of the court below is affirmed.


text:
    Smith versus Van Horne.
    1. That a question of law may be reserved, a party has the right to require that disputed facts should be found specially by a jury, and so appear in the record.
    2. If this be not done, he can require the judge to state a bill of exceptions to the reservation in any other mode.
    3. "When it did not appear, by the certificate of the judge below, that the facts were disputed, it will be presumed that his statement of facts had been acquiesced in.
    4. If it did appear that the facts were disputed, the Supreme Court will not notice this without an exception.
    October 24th 1872.
    Present Thompson, C. J., Read, Agnew, and Sharswood, JJ.
    Error to the Court of Common Pleas of Crawford county: No. 17, to October and November Term 1872.
    This was an action of assumpsit, brought to June Term 1870, of the court below, by James H. Smith against Thomas B. Van Horne.
    It appeared that the plaintiff had sold certain personal property to defendant, and in payment he assigned to the plaintiff his title to certain real estate owned by him. The plaintiff, alleging that the title to the land was worthless, brought this suit to recover the value of the goods sold to the defendant. The parties gave evidence in support of their case respectively.
    The defendants submitted a number of points which the court below (Lowrie, P. J.) did not answer, but reserved certain questions of law.
    The jury found for the plaintiff $1254.
    Judge Lowrie’s opinion, in passing on the reserved points, is as follows:—
    “ The plaintiff sold to the defendant his livery stable stock, and, in part payment therefor, accepted a conveyance of a tract of land in a distant state. The plaintiff afterwards discovered that the title thereto was worthless — or thought he did — and claimed to be paid in money the amount for which he had accepted it. The defendant disputed his liability to make the amount good and according to the theory of the plaintiff’s case (afterwards found by the verdict), a treaty of compromise was held between them, in which it was agreed that in place of the land the defendant should pay the plaintiff $1200, one-half in one year and one-half in two years, with promissory notes and security therefor. The defendant afterwards denied the agreement and refused to perform it, and hence this suit, in which the plaintiff declares in assumpsit on the common counts, including one for goods sold and delivered. The questions reserved on objections made by defendant’s counsel are: ‘ Is assumpsit the proper form of action for the case ? Is any one of the counts sufficient for it? Oan the plaintiff sue without a previous tender of a reconveyance of the land ? ’ and the verdict was taken subject to the opinion of the court on these reserved questions.
    “And now, December 4th 1871, after hearing, we decide all these points in favor of the plaintiff, and direct judgment to be entered on the verdict on payment of the jury fee, and stay of execution thereon until the plaintiff shall have filed with the prothonotary a reconveyance of the land to the defendant, to be delivered to him when he shall have paid the judgment. To which judgment of the court the defendant did then and there except, and prayed the court to seal a bill of exceptions in testimony thereof, which is done accordingly. W. H. Lowbie, [l. s.]
    P. J.”
    The defendant took a writ of error, and assigned the following errors:—
    “ The court erred in entering judgment for the plaintiff in this case for twelve hundred and fifty-four dollars.
    “ The court erred in certifying disputed facts against the consent of counsel.”

      O. B. Marsh and W. B. Bole, for plaintiff in error.
    — Questions of fact are to be determined by the jury or agreement of parties; they cannot be determined by the court: Winchester v. Bennett, 4 P. F. Smith 510; Robinson v. Myers, 17 Id. 9; Campbell v. O’Neill, 14 Id. 292.

      M. P. Davis and S. N. Pettis, for defendant in error.
    — The failure of the consideration of a contract -will sustain an action of assumpsit: Crossgrove v. Himmelrich, 4 P. F. Smith 203. Tort may be waived and assumpsit adopted: Stockton’s Appeal, 14 P. F. Smith 58; Babcock v. Case, 11 Id. 427.
    November 4th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— We have upon this record but a single exception to the judgment of the court below upon points reserved as arising upon facts stated in the bill of exception. If these were the facts of the case there can be no question that the judgment was right. But the plaintiff here assigns as error that the court below erred in certifying disputed facts against the consent of counsel. But how does that appear? Omnia prcesumuntur rite esse acta. If it did appear how can we notice it without an exception ? The plaintiff has no other exception except the bill in question, and that does not show any exception to the statement of the facts. One of the facts, and the principal one, the judge certified to have been found by the jury. This is certainly a very irregular and unlawful manner of making out a bill of exceptions, and if an exception had appeared it could not have stood for a moment. The defendant had a right to require the disputed facts to be submitted and found specially by the jury, so that they should appear in the record as part of the verdict if it was proposed to resérve a question of law. If this was not done he should have required the judge to state a bill of exceptions to the reservation in any other mode. If the judge refused to answer the defendant’s points a bill should have been tendered to such refusal. It is certainly asking too much of this court to presume that the learned judge, without the consent or. acquiescence of the parties, undertook in his bill to find the fact as well as to decide the law.

Judgment affirmed.


text:
    Brown versus The Second National Bank of Erie.
    1. Under the Act of Congress of June 3d 1864 (National Banking Law), on a loan stipulating for usurious interest, a bank can recover the principal only, without any interest.
    2. Where usurious interest has been paid, the penalty is the recovery back of double the amount of the excess over legal interest.
    3. It is the actual payment on a usurious contract,_ in part or in whole, which consummates the usury, from which the limitation of suit for the penalty commences to run.
    4. Lawful interest may be recovered in an action for the principal.
    5. A National Bank discounted notes which were renewed from time to time, all at usurious discount. In a suit against the endorser on the last note, he might set off all the excess of interest retained by the bank. Per Johnson, P. J.

      October 25th 1872.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Erie county: No. 4, to October and November Term 1872.
    This was an action of assumpsit, commenced April 29th 1867, by the Second National Bank of Erie against the executors of Conrad Brown, deceased.
    The suit was on three promissory notes, each at 60 days, drawn by Y. M. Thompson, payable to the order of Conrad Brown, at the Ocean National Bank, New York, endorsed by Brown and discounted by the plaintiff for the drawer. One note was dated November 20th 1866 for $16,000 ; the other two were dated December 6th 1866 for $2000 and $4000 respectively.
    These notes were not paid at maturity and were protested.
    Conrad Brown died March 9th 1869.
    Thompson, the drawer, testified that the notes had been discounted for him under a contract with the president of the bank, who promised to give him a line of discount of from $10,000 to $20,000, and charged him discount at 9 per cent, per annum, which he agreed to allow; the notes in suit were drawn under this arrangement ; the excess of legal interest retained for discount on the notes in suit was $132. Thompson had many notes discounted under the arrangement to pay 9 per cent., and the notes in suit were renewals of previous notes that were usurious, and those were to pay still older ones.
    The aggregate amount of discounts paid Thompson under this arrangement, including that on the notes in suit, was $5184.05, and the proportion of this over 6 per cent, was one-third.
    By the 30 th section of the National Banking Law of June 3d 1864, 2 Brightly’s U. S. Digest 58, pi. 30, it is provided that banking associations under that law may charge on any loan or discount on a note, bill of exchange, &c., “interest at the rate allowed by the laws of the state where the bank is located, and no more.” * * * “ And the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or evidence of the debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back in any action of debt twice the amount of the interest thus paid from the association taking or receiving the same; provided the action is commenced within two years from the time the usurious transaction occurred.”
    Each party submitted a number of points, which are not inserted, the legal questions involved in the case being stated in the charge of Johnson, P. J., viz.:—
    “ The United States Banking Law, under which the plaintiff bank was organized, forbids tbe taking of any more interest for the loan of money than is allowed by the state in which the particular bank is located. The plaintiff being located in Pennsylvania could, therefore, legally charge only 6 per cent, per annum for money lent to its customers.
    “ If this prohibition of the act be violated by the bank a penalty is imposed. It is this:—
    “ 1. If the contract to take a greater interest than 6 per cent, be executory the whole interest for the period of discount is forfeited, and the bank can only recover the principal from and after the maturity of the note or contract.
    “2. If the usurious interest has actually been paid the borrower may sue and recover twice the amount so paid, provided he sues for it within two years from the time of payment.
    “ In neither case does the statute declare the real debtor money borrowed forfeited, or deny the right of the bank to recover it. The Act of Congress having prescribed the penalty for its violation in this respect, no other or different one can be imposed by the court, nor any other consequences declared than such as its framers have ordained.
    “ The proof shows, without denial or contradiction, that in 1864-5-6, Y. M. Thompson, whose endorser the defendant’s testator was, had a continuous line of discounts at the Second National Bank of Erie, and was charged 9 per cent, per annum, besides > exchange. His notes and bills were all made payable at New York, where some of them were paid by him and other parties. Others were paid by renewals or new discounts at the defendant bank, and the usual exchange between this city and New York charged.
    “From this state of undisputed facts the defendants deduce several inferences, and ask us to declare to you as the law:
    “ 1. That the plaintiff having discounted a long series of notes for Y. M. Thompson, of which those in suit are the culmination, in violation of the express words and against the policy of its fundamental law, it cannot recover at all any part of its claim.
    “ 2. That having charged and received unlawful interest on money, notes and bills preceding those in suit, it thereby forfeited and became liable to pay to Y. M. Thompson double the amount of interest so paid, and that he has a right to defalk those amounts and have the same credited on the notes now in suit against his surety.
    “ 3. That if he is not entitled to this credit he should, at least, have credit for the excess of interest or discount that he has paid from time to time as of the date of the notes on which this suit is brought.
    “ 4. That he is entitled to an abatement of the interest on the notes in suit because they were discounted at a higher rate of interest than 6 per cent, per annum.
    “ I believe these embrace substantially all the legal propositions presented by the defendant’s counsel, pertinent to the issues raised by the facts in the case.
    “ From the first and second of these propositions we dissent.
    “ The Act of Congress is the law of these National Banks. It prescribes no such penalty as a forfeiture of the debt for a violation of its restriction as to the amount of interest to be charged. It does impose a penalty, and the only duty of the courts is to inflict it in the mode prescribed. For having taken usurious interest on previous loans the bank might have been sued within two years and double the amount so received recovered by the party injured. This was not done, and therefore all redress for that infraction of the law is gone. It is enough to say of that claim that it is outlawed — without deciding whether, unsued for, it could have been claimed as a set-off even within the two years after the penalty had been incurred.
    “We therefore charge you that the plaintiff is not barred from its recovery upon the notes in suit, by reason of its having taken usurious interest upon them or on any previous notes or drafts discounted by it from the claim.
    “ Nor is the plaintiff entitled to set off or claim credit for double the amount of interest paid by Thompson on notes or bills previously discounted by the defendant for him.
    “ To the third proposition we agree, and say to you that for any excess of interest taken by the plaintiff in the discount of notes or drafts previous to those in suit for Thompson in the regular course of business, he is entitled to a credit, and the defendants may claim it as a set-off in this ease. Such amounts being received in violation of law cannot be retained, and neither time nor contract will sanctify them or legalize the defendant’s possession as against the rightful owner.
    “We also approve the fourth proposition, that the defendants are entitled to an abatement of all interest or discount charged for the loan of money upon the notes in suit prior to their maturity. This is conceded. This amount, Mr. Curry states, was $355, which the defendants are entitled to have credited on the notes and deducted therefrom at their respective dates.”
    The verdict was for the plaintiff for $23,849.50.
    The defendants removed the record to the Supreme Court, by writ of error, and there assigned for error the rulings of the court in the charge.

      J. B. Thompson and O. B. Qurtis (with whom was B. Cfrant), for plaintiff in error.

      J. O. Marshall and J. S. Walker (with whom was F. F. Marshall), for defendant in error.
    November 4th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— A close examination of the words of the Act of Congress of June 3d 1864, under which the defendants in error were organized and incorporated as a National Bank, will show, we think, that it was intended to draw a distinction between the case of the reservation of a discount at an unlawful rate of interest and the actual consummation of the usury by the receipt of it by the payment of the note or loan when due. It is declared by the thirtieth section that “the knowingly receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence carries with it, or which was agreed to be paid thereon.” This has evident reference to the enforcement of the contract by judicial process, in which case it is provided that it shall be held and adjudged that the bank shall forfeit the entire interest — that is, shall recover only the sum actually loaned or advanced without any interest at all. There is a marked difference in the language of the clause which follows and which makes provision for the case where the usury had been consummated by the actual receipt by the bank of the usury. “And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back in any action of debt twice the amount of interest thus paid from the association taking or receiving the same : Provided, that such action is commenced within two years from the time the usurious transaction occurred.” Upon any other construction it would be difficult to make the different clauses of the section consistent. For if on payment simple interest is forfeited, why not also provide for its recovery back by action as well as for the penalty of double the amount ? Nothing would have been easier than to have expressed the intention that the entire interest should be recovered back in all cases, but double the amount only by an action instituted within two years. The maxim well appli es, Expressio unius est exclusio alterius. If there were no special limitations in the act, and it has no necessary connection with the other clauses, no consistent construction could be put upon the language of the section taken altogether, except by holding that no action can be maintained for the simple interest, neither before or after it is paid; but as to that, the remedy is by defence to the action on the note or loan, in which case the entire interest “ shall be held and adjudged ” to be forfeited. There maybe a good reason for this if it was the intention of Congress to give the bank a locus poenitentice so far as the penalty of double the amount was concerned, and allow them to save it by not actually taking it upon the maturity and payment of the debt. This accords with the general current of the decisions upon the construction of the usury laws whenever the contract is not itself declared to be void by the statutes. It is actual payment on the foot of the usurious contract, either in part or in whole, which consummates the usury, and from which the limitation of the action for the penalty commences to run, but lawful interest may be recovered in an action for the principal: Wycoff v. Longhead, 2 Dall. 92; Turner v. Calvert, 12 S. & R. 46; Musgrave v. Gibbs, 1 Dall. 216; Kirkpatrick v. Houston, 4 W. & S. 115; Lamb v. Lindsey, Id. 44; Thomas v. Shoemaker, 6 W. & S. 179; Oyster v. Longnecker, 4 Harris 269; Craig v. Pleiss, 2 Casey 271. These views dispose of the only assignments of error which we consider it necessary to discuss.

Judgment affirmed.


author: Bead, J.

text:
    Williams’s Appeal.
    1. An act incorporated a borough and other territory into a city, and directed a tax of two per cent, to be levied on the property lying in what was the borough, “until the present debt of the borough” should be paid. A subsequent act directed that, after advertisement, the trustees should, four times a year, offer all the money in the treasury publicly, and “award the same to the creditor or creditors who will release the greater sum of indebtedness therefor; and no interest shall be computed on said indebtedness ” after the borough charter was annulled. Held, that the last act was unconstitutional.
    2. If a.municipality be authorized to contract debts, no subsequent legislation can impair them. Per Trunkey, P. J.
    3. The legislature may pass an act which, if not acting directly on the terms of the contract, may change the remedy the party had at its passage. Id.

    October 25th 1872.
    Before Thompson, O. J., Read, Agnew and Snarswood, JJ.
    Appeal from the Court of Common Pleas of Venango county: In Equity : No. 176, to Octobór and November Term 1872.
    A bill was filed by James Bleakley against William H. Williams, John J. Broadhead and William Hassen, trustees of the First District of Oil City, and H. L. Davis, treasurer. The bill averred that Patrick Hughes, on the 23d and 28th of November 1867, respectively recovered judgments against the borough of Oil City for $570.75 and $3924.23, on each of which payments had been made amounting together to $1172.25; that writs of mandamus had been issued in January 1868 and January 1869, to compel the payment of the balances due on the judgments, to which answers were made that there was no money in the treasury to pay the judgments. They had been assigned to the plaintiff.

      By Act of March 1st 1871, the borough of Oil City and adjoining territory were incorporated into the “ City of Oil City,” and the poAvers of the Burgess and Council of the borough of Oil City, &c., were vested in the members of the city council, chosen on the north side of the Allegheny river, which was the 1st district of the city. These members were required annually to assess and collect not exceeding two. per ■ cent, on the valuation of property lying on the north side of -the river until the debt of the borough of Oil City should be paid; “ and the said tax shall be applied to that purpose and none other,” those councilmen to have power to appoint a separate treasurer.
    By the 32d section of the Act of March 11th 1872, the powers vested in the councilmen before mentioned, were vested in a board of trustees, consisting of the defendants who were required to use their efforts to discharge the indebtedness of the borough before its incorporation with the city as speedily as possible, and to the best advantage of the tax-payers of the 1st district.
    The plaintiff complained that the defendants had refused to pay his judgment out of any unappropriated money of the borough treasury, or out of the first money that should be received for the use of the borough, and had refused to levy the tax of two per cent, authorized to be raised to pay the debt of the borough, “ but propose t'o offer publicly all the money in the treasury, and to award the same to the creditors, whether with or without judgments, who will release and discharge the greatest sum of indebtedness therefor,” and that the defendants refused to pay any interest subsequently to March 1st 1871.
    The prayers were for an injunction restraining the trustees from offering the money which might be in their hands, or might come into their hands until the plaintiff be paid; that they be compelled to pay the judgment-creditors of the borough of Oil City, in the order in which the writs of mandamus were served, and to levy taxes to the amount of two per cent, on the valuation of the property on the north side of the Allegheny river, until the judgments should be paid, to pay interest on them, and for further relief. The answer, admitting substantially most of the allegations of the bill, set out at large the 32d section of the Act of 1872, referred to in the bill; the concluding part of Avhich is as follows:—
    “And it is hereby declared to be the duty of the said trustees to use their efforts to liquidate and discharge the indebtedness which accrued against the borough of Oil City before the incorporation of the city of Oil City as speedily as possible, and to the best advantage of the tax-payers of the said First District of the city of Oil City; and to this end they shall, in the months of January, April, July and October of each year, at a time and place of which notice shall be given for three weeks by publication in one or more newspapers published in said city, offer publicly all the money in the treasury, and shall award the same to the creditor or creditors, or their legal representatives, who will release and discharge the greater sum of indebtedness therefor; the said money to be offered in sums of $100; and no interest shall be computed on said indebtedness subsequent to March 1st 1871, (when the charter of the said borough of Oil City was annulled.”
    The parties after filing the bill and answer made this agreement :—
    “And now, to wit, August 20th, 1872, for the purposes of argument and hearing it is admitted that at the time of filing the above bill the defendants refused to apply the money in the hands of their treasurer, the said H. L. Davis, in the order required in the writs of mandamus against said borough of Oil City, including the judgments of the plaintiff and other claims, or to apply the same in any other way except as provided by the Act of Assembly of 1872, set forth in defendants’ answer, and have declined to compute or pay interest on said judgments and other claims against said borough subsequent to March 1st 1871. And it is hereby agreed that the case shall be set down for argument on bill, answer and amendments and this admission.”
    After hearing, the Court of Common Pleas (Trunkey, P. J.), delivered the following opinion, which was adopted by the Supreme Court:—
    44 The plaintiff is the owner of two judgments against the borough of Oil City, one obtained on the 28th of November 1867, the other on the 23d of November 1868. Upon these judgments writs of mandamus were issued, to the former of which the defendant answered February 19th 1868, that there was no money in the treasury with which to make payment, and to the latter a like answer on January 25th 1869. The legislature, by Act of March 1st 1871, incorporated the city of Oil City, embracing within its limits the territory of the late borough, and providing for the payment of the debts of said borough. In pursuance of said provision a tax was levied and collected, but before any part thereof was paid out on the indebtedness of the borough a supplementary act was passed March 11th 1872, which created a board of trustees to take charge of the money and use their efforts to liquidate and discharge the indebtedness which accrued against the borough of Oil City before the incorporation of the city of Oil City, as speedily as possible and to the best advantage of the tax-payers of the said first district of the city of Oil City, and to this end they shall, in the months of January, April, July and October of each year, at a time and place of which notice shall be given for three weeks by publication in one or more newspapers published in said city, offer publicly all the money in the treasury, and shall award the same to the creditor or creditors or their legal representatives, who will release and discharge the greater sum of indebtedness therefor, the said money to be offered in sums of $100, and no interest shall be computed on said indebtedness subsequent to March 1st 1871, when the charter of said borough of Oil City was annulled.’
    .“ The plaintiff’s judgments are among the earliest obtained against said borough. The defendants refused to apply the money in the treasury in the order required in the writs of mandamus against said borough; they refused to apply the money in any other way than is pointed out in the 32d section of the Act of March 11th 1872, and they have declined to compute or pay interest on said judgments from March 1st 1871. Upon the facts the only question for present adjudication is, is that portion of said Act of Assembly valid, which requires said trustees at stated times, to auction the money in the treasury to the creditors who will release the greater sum of indebtedness therefor, and which stops interest on all indebtedness of the borough after March 1st 1871 ?
    “The legislature have absolute control over a municipal corporation, and may alter its character, remove its officers and appoint others, or wipe out its existence: Philadelphia v. Fox, 14 P. F. Smith 169. The municipality is the creature of the state, and if it was authorized to contract debts no subsequent legislation can impair such obligations. The constitutional prohibition takes effect on contracts, whether between a state and an individual, or between individuals: Potter’s Dwarris Statutes 447. The state by legislation cannot impair the obligation of its own contracts ; it cannot alter a municipal charter, or revoke it, so as to destroy the lawful contracts of the corporation. A lawful repeal of a statute cannot be constitutionally made to destroy contracts made under it: Id. 474. It has not been contended by the defendant, as I understand the argument, that the legislature can enact a law impairing the obligation of a' contract made by a municipal corporation. I consider it clear they cannot.
    “ But it is said the act in question only affects the remedy. The individual citizen has no vested right in what is known in the law as remedies, nor in any particular existing remedy. The existing laws of a state may be amended or repealed, and there is no obligation on the part of the state to protect its citizens against incidental injury occasioned by changes in the law. Whatever belongs merely to the remedy may be altered, provided the alteration does not impair the obligation of the contract, but if a statute so changes the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just as much a violation of the constitutional provision as if it directly overturned his rights and interests. If the statute does not impair the right or property itself, if it still leaves the party a substantial remedy, according to the course of justice, as the right existed at the time of its passage, it does not impair the obligation of the contract, nor will it he held to do so, merely because the new remedy is less efficient, less speedy or less convenient than the old one: Ibid. 472.
    “A law prohibiting the sale of property under execution, unless it will bring two-thirds of its appraised valuation, is unconstitutional and void: McCracken v. Hayward, 2 How. 608; Penrose v. Erie Canal Co., 6 P. E. Smith 46.
    “ It is competent for the legislature to enact a stay law for a definite and reasonable time, but a stay for an indefinite time is void. If the law be so changed that the means of enforcing a contract are materially impaired, the obligation no longer remains, and when the act creates the possibility of a perpetual suspension of remedies, or a suspension for a time that all courts of justice would deem unreasonable, it is a plain violation of the provisions of the federal and state constitutions, which protect the inviolability of contracts: Bunn, Raiguel & Co. v. Gorgas, 6 Wright 441.
    “ It cannot be denied that the legislature have power to pass an act which, without acting directly upon the terms of the contract, changes the remedy a party may have at the time of its passage, and so embarrasses the remedy that the creditor may be greatly injured without redress. Especially will the creditor be so injured by frequent changes in the statutes, though none of them may be unconstitutional. Whoever contracts with a municipality does so knowing that the state may do with the corporation whatever she shall deem expedient, as well as he knows the obligation of the contract cannot be impaired. He knows remedies may be changed, that he may be hindered, delayed and embarrassed. No better illustration exists of what he is liable to encounter than the statute referred to in the bill and answer, relative to the debts of the borough of Oil City. The Act of March 24th 1868, P. L. 444, provided that four-fifths of the tax authorized to be levied should be paid in borough orders, and the remaining fifth in money, for the exclusive use of the fire department. Not a dollar was allowed to be applied to the indebtedness of the borough. The officers were allowed to settle with their creditors and give bonds payable in the future. But all remedy to enforce payment was taken away. No remedy express or implied was allowed until after those bonds should become due. This was a stay law on all existing indebtedness of not less than one nor more than twenty years, at the option of the debtor. And it was passed after the borough officers had filed their answer to the mandamus on the larger judgment of the plaintiff. By Act of March 1st 1871, P. L. 187, the existence of the borough was wiped out, but a fair provision was made for payment of its debts. The proper officers levied a tax, but before any portion of the money was paid out, the Act of March 11th 1872 ousted the old officers, created new ones, and placed it out of the present power of the plaintiff to collect his judgments. He is now subjected to a second stay, for what time it is impossible to determine.

      “ "When the plaintiff’s debts were contracted with the borough of Oil City, creditors had like remedy against said boropgh that existed, and still exists, under the general laws, to compel municipal corporations to pay their lawful debts. That remedy is prompt and is certain.

      “ The creditor could resort to it at once, and the creditor first in time will secure payment out of the first money coming into the treasury. This legal and certain remedy, then existing, is so much a part of the contract that it cannot be wholly taken away, nor changed so as substantially to deprive the creditor of all remedy. The borough of Oil City has been subjected to such special legislation that, if constitutional, the creditors are not only deprived of all remedy which existed when the credit was given, but the borough officers are forbidden to pay any creditor who will not release a part of his debt, while others offer to release. The creditor cannot collect and the debtor is prohibited from paying.

      “ To what amount the borough of Oil City was indebted does not appear, nor is it approximately shown within what time the trustees can pay the indebtedness by the tax they are authorized to levy. From the admitted facts it is reasonable to assume that it is large, and that many years must elapse before it can all be paid. If the part of the act in question is valid the money raised by taxation cannot be distributed pro rata among the creditors, in which case there would be some appearance of fairness; nor can it be applied to the oldest creditors in the order of contracts, nor to the vigilant creditor who obtained judgment by due legal process and issued the mandatory writ then authorized by law. The oldest and most vigilant creditor, perhaps the most worthy, will be the last paid if others are willing to sacrifice more than he. If he decline the sacrifice he must wait an unknown period without interest.
    <! When will stay of execution expire on the plaintiff’s judgments ? The time when process will be allowed to enforce payment is as uncertain as the discount a needy creditor will make to get a portion of his honest dues from the borough. The stay will be longer or shorter, in proportion as the wants of creditors will force a greater or less sacrifice. As we have seen under the Act of March 24th 1868, the plaintiff’s hands are tied not exceeding twenty years; under the Act of March 11th 1872, his hands are again tied for an indefinite period.
    “ It matters not that the plaintiff has his option to underbid other creditors and receive a part of his due in satisfaction of the whole. There can be no pretence that the legislature can compel a creditor to release part of his claim, under penalty of being indefinitely barred from its- collection.

      “The conclusion from the authorities cited, and others of like tenor, is ‘ that in respect to contracts which do not treat of remedies, we hold any law to be constitutional which gives a stay for a time that is definite and reasonable, but unconstitutional if the stay be for an indefinite time, or for a time that is unreasonable, though definite Breitenbach v. Bush, 8 Wright 318.
    “ It is clear that the Act of March 11th 1872 operates as a stay of execution process for an indefinite time. After four years’ delay from the rendering of plaintiff’s judgments, during which, under the Act of March 24th 1868, the borough officers could not have paid had they been willing, it is most unreasonable to tack on another stay for an uncertain term, although the payment be not for ever postponed. The constitutional prohibitions forbid such legislation.
    “ The plaintiff is entitled to interest on his judgment. The law gave interest on debts due and unpaid when the debts were contracted. The bonds were subject to interest. The law gave interest upon the judgments. Whether expressed or not he is entitled to interest. ‘ Implied contracts are such as reason and justice dictate from the nature of the transaction, and which the law presumes that every man undertakes to perform. The constitution makes no distinction between the one class of contracts and the other. It then equally embraces and applies to both:’ 2 Story Const, sec. 1377.
    “ The attempt to deprive a creditor of interest on an overdue debt, which the debtor refuses to pay, is in the teeth of the implied contract and of the constitutional provision that its obligation shall not be impaired.
    “ So much of the Act of March llthl872 as requires said trustees at stated times to offer publicly all the money in the treasury, and award the same to the creditors who will release the greater sum of indebtedness therefor, and as stops interest on said indebtedness subsequently to March 1st 1871 “ violates the constitution clearly, plainly, palpably and in such manner as to leave no doubt or hesitation in our minds.’ ”
    The court thereupon decreed:—
    “ That the said trustees and treasurer, the defendants in this action, be enjoined from offering the money which is now in their hands or in the treasury, and which is now due and may hereafter become due and be paid into their hands or into the treasury, and that they be enjoined from awarding said money or any part thereof to the creditor or creditors who will release and discharge the greater sum of indebtedness therefor, until the plaintiff be paid the full amount of his judgments.
    “ That the defendants shall compute and pay interest on each of said judgments from the rendition thereof till the date of payment.
    “ That the defendants shall pay the judgments of the plaintiff out of the money now in their hands or that may first come into the treasury or into their hands, unless there be other judgments on which writs of mandamus were issued and served prior to the writs on the judgments of plaintiff, in which case the money shall be paid in the order of said writs so served upon the respective judgments until the plaintiff’s judgments are fully paid.”
    The defendants appealed to the Supreme Court and assigned the decree for error.

      W. McNair, for appellants.
    — The legislature may alter, modify or even take away the remedy for the recovery of a debt: Evans v. Montgomery, 4 W. & S. 218; Miller v. Commonwealth, 5 Id. 488 ; Deichman’s Appeal, 2 Wharton 395; Bolton v. Johns, 5 Barr 145; Society v. Town of Pawlet, 4 Peters 480; Chadwick v. Moore, 8 W. & S. 49; Hepburn v. Curts, 7 Watts 300; Satterlee v. Matthewson, 2 Peters 380.

      J. D. Baneoch, for appellee.
    November 14th 1872,
   The opinion of the court was delivered, by

Bead, J.

— We have carefully examined the opinion of the learned judge in the court below, and agree with him that so much of the Act of March 11th 1872 as requires the trustees at stated times to offer publicly all the money in the treasury and award the same to the creditors who release the greater sum of indebtedness thereof, and which stops interest on said indebtedness subsequent to March 1st 1871, “violates the constitution clearly, plainly, palpably and in such manner as to leave no doubt or hesitation on our minds.”

The decree is right, and it is therefore affirmed at the costs of the appellants, upon the opinion of the court below.