author: Woodward, J.

text:
    Webb versus Dean.
    1. A debtor, in December, 1820, executed a voluntary assignment of all Ms estate, real and' personal; the assignment was recorded, but the assignees never acted, nor were' others appointed in their stead; and there was no evidence of the delivery of the assignment to either of them.
    In June, 1836, a judgment was obtained against the assignor, and the real estate in question was levied upon and sold in September of that year, and an action of ejectment was brought by the purchaser in 1841, which was tried in April, 1849. .
    It was 1[eld, that, though an assignment of real estate for the benefit of creditors passes the legal title, which is not defeated by the refusal or neglect of the assignees to act, but vests in those whom the Court appoint to execute the trust, yet that a trust results to the debtor by operation of law, which entitles him to the possession of the property remaining unconverted.
    2. In Pennsylvania such an interest may be hound by the lien of a judgment against the assignor, and is the subject of levy and sale.
    3. In such a case, nearly sixteen years having elapsed from the assignment to the sheriff's sale, the real estate in question not having been converted by the trustee, and no evidence of continuing indebtedness of the assignor being shown, it was not error in the Court to submit to the jury the question of payment of the debts mentioned in the assignment.
    4. A legal presumption of payment does not arise short of twenty years; but a less period in connection with persuasive circumstances may be submitted to the jury as ground of presumption in fact.
    5. The presumption of payment attached not at the sheriff's sale, but at the trial in 1849, of an ejectment brought by the purchaser at the sheriff's
      sale; and, in view of the long interval (above twenty-eight years), and under the circumstances in proof in this case, the Court would have been justified in withdrawing the case from the jury and ruling it against the defendant as a conclusion of law.
    Error to the District Court, Philadelphia.

    This was an action of ejectment by John Dean v. Reuben Webb, to March T. 1841, for a piece of land in the county of Philadelphia. The plaintiff having died, William E. Dean and others, as his heirs, were substituted.
    The property was claimed by the plaintiff by virtue of a sheriff’s sale in 1836, as the property of Zalegman Phillips. On the 23d June, 1836, a judgment was obtained by John Thompson against Zalegman Phillips, on a cause of action which arose subsequent to the assignment, hereafter referred to; and under the same the premises were sold at sheriff’s sale to John Dean, the sheriff’s deed to him being dated 24th September, 1836.
    It appeared by a voluntary assignment, dated 4th December, 1820, that Zalegman Phillips assigned all his estate, real and personal, of whatsoever nature and wheresoever (without any specification), to Henry Solomons and Bayse Newcomb, their heirs, &c., in trust to sell the same, &c., and pay, first, certain specified debts, and after satisfying the preferred claims, then to pay and distribute the surplus rateably amongst all his creditors. The assignment was recorded on 29th December, 1820.
    On the trial Bayse Newcomb, one of the assignees, was examined, and testified that he did not recollect that Z. Phillips ever called on him in respect to the aforesaid assignment — that he recollected hearing of it, but that, if he had been applied to he would have refused to act under it; and that it was never actually delivered to him. That Solomons, the other assignee, he believed was dead.
    On the trial J. A. Phillips was examined, and testified that the property in question had been in the possession of the mother of Z. Phillips, widow of Jonas Phillips deceased, the latter having died perhaps in 1803.
    It was testified that the premises referred to had belonged to Jonas Phillips, who died in 1803. He left a widow and a number of children, of whom Z. Phillips was one. The widow died in 1831, having received the rents and profits of the property, part of which was in dispute, during her lifetime. It did not appear that Z. Phillips ever had possession of the property. It was supposed by the heirs that the widow was entitled to a life estate in the property under her husband’s will, though in fact she had not, as it was acquired by her husband after the execution of his will.

      It was contended on the part of the defendant, that the title of Z. Phillips to the premises passed hy his deed of assignment— that at the time of the levy and sale and sheriffs’ deed, the said Z. Phillips had no estate or interest in the premises, which could be the subject of levy and sale, and that the plaintiffs wer'e not entitled to recover.
    The court left the case to the jury, reserving the question, whether the jury might presume from the evidence in the cause, that the debts mentioned in the assignment had been paid; and if the jury might so presume, then, whether the sheriff’s deed conveyed the estate of the said Z. Phillips to John Dean.
    April 6,1849, verdict for plaintiffs for one undivided ninth part of the premises, subject to the opinion of the Court in banc.
    Subsequently the Court entered judgment for the plaintiff.
    It was assigned for error, 1. That the Court efred in leaving the case to the jury, with liberty to presume the payment of the debts of the assignor. 2. In entering judgment for the plaintiffs.

      Bradford, for plaintiff in error.
    — It was contended that by the assignment Z. Phillips conveyed his whole legal estate and interest in the premises, leaving in him no resulting use or interest therein of the character of real estate, but conferring on him only a contingent equitable chose in action, viz., the right of calling for an account from the assignees, &c.; that such contingent claim was not the subject of levy and sale, and that therefore John Dean, the purchaser, acquired no estate or interest in the premises, by the sale and deed.
    Also, That though between the assignment, in December, 1820, •and the levy, in June, 1836, more than fifteen years elapsed, yet that this was not a sufficient time to raise a presumption of the payment of the debts of the assignor. :That express and ’continuing trusts are not affected by the statute of limitations, and are never barred by presumptions of extinguishment arising from the lapse of time less than twenty years, without an assertion of claim. 2 Sch. & Lef. 637; 2 Atk. 522; 7 Paige Ch. 197 ; 1 J. C. R. 313; 2 Watts 209, Foulke v. Brown; 4 W. & Ser. 557, Bull v. Towson.
    The presumption raised by the lapse of twenty years is a presumption of law, and not of fact: Font. Eq. 329; Best on Pre. 47; Law Lib. 186-189; 2 Watts 218, Power v. Holman. Also, 5 Taunton 170, 1 E. C. L. R. 53.
    The assignment in question ivas not fraudulent as against Thompson, as his debt was contracted subsequent to the assignment. Comment was made on the cases of Ross v. Jenkins, 14 Ser. & R. 364; Power v. Holman, 2 Watts 218; Sailor v. Hertzog, 4 Whar. 259; Comm. v. Lelar, 1 Harris 22; and Lamb v. Fries, 2 Barr 83.

      January 6, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— On the 4th day of December, 1820, Zalegman Phillips, then the owner of the premises for which this suit was brought, being in embarrassed circumstances, voluntarily assigned all his estate to Henry Solomons and Bayse Newcomb, in trust to sell and convert the same into money, and to pay creditors of the said Z. Phillips. The assignment was recorded, but there is no evidence before us that the assignees undertook the execution of the trust, or that they were superseded, and others appointed in their stead. Mr. Newcomb, the only surviving assignee, swore on the trial, that he did not recollect that Phillips ever called on him in respect to the assignment; that he recollected hearing of it, but if he had been applied to, he would have refused to act under it; and that the assignment was never delivered to him: nor was there any evidence of its delivery to Henry Solomons.

On the 23d June, 1836, John Thompson, Jun., obtained a judgment in the District Court against Phillips, issued execution, and levied on and sold the premises, in September, 1836, to John Dean, under whom the defendants in error claim title.

Though it be true, that an assignment of real estate for the benefit of creditors passes the legal title, which is not defeated by the assignees’ refusal to act, but vests in those whom the Court appoint to execute the trust, yet a trust results by operation of law, which, as soon as the debts are satisfied, entitles the assignor to the possession of whatever of the estate remains unconverted. And in Pennsylvania, where every interest, equitable as well as legal, which a debtor has in lands, is bound by the lien of judgments against him, this interest is the subject of lien, of levy, and of sale.

But may the extinguishment of the debts which it was the object of the assignment to pay, be presumed from lapse of time and other circumstances ? This is the only question in this cause. The Court permitted the jury to make such presumption, and this is complained of as error.

Between the assignment and the sheriff’s sale, there were near sixteen years. The estate, though assigned to be converted into money, had not been converted. One of the assignees refused to act, and no delivery of the deed to the other was shown. No creditor applied to the Court to appoint others; and, finally, no evidence of continuing indebtedness was shown.

Under these circumstances the plaintiff in error has no reason to complain that the Court submitted the question of payment to the jury. It was the least they could do. True, a legal presumption of payment does not arise short of twenty years; but it has been often held, that a less period, in connection with persuasive circumstances, may be submitted to the jury as ground of a presumption in fact. Ross v. Jenkin, 14 S. & R. 364; Power v. Holman, 2 Watts 218; Tilghman’s Executors v. Fisher, 9 W. 442; Gouldhawk v. Duane, 2 W. C. C. R.; Clark v. Curran, (Pittsburgh, 1852.)

The Court might, however, have done more against the plaintiff in error. This suit was brought to July Term, 1850, and between the date of the assignment and the time of trial, more than twenty-nine years had elapsed. It was on the trial of the cause, not at the sheriff’s sale, the presumption of payment attached. The question was then, in 1849, what is the just and necessary presumption ? and in view of the long interval, and of the circumstances in proof, the Court would have been quite justified in withdrawing the case from the jury, and ruling it against the plaintiff in error, as a conclusion of law. In giving him a chance for a verdict, the Court erred in his favour, and of coarse are not to be reversed at his instance.

The judgment is accordingly affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth versus Freedley’s Executors.
    A valuation of real estate subject to a collateral inheritance tax, and an appraisement of the personal estate, was made in pursuance of the provisions of the 12th section or the Act of 10th April, 1849, or of the 2d section of the Act of 11th March, 1850, and the same was not appealed from to the Register's Court within thirty days. It was Held that the said valuation and appraisement was final and conclusive, as well against the Commonwealth as the individuals interested; and though the same property, real and personal, which had been appraised, increased in value, as ascertained by sales made by the executors under the directions of the will of the decedent, the increased value was not subject to additional taxation under the Acts relative to collateral inheritances.
    Error to the Common Pleas of Montgomery county.

    This was a case stated between the Commonwealth of Pennsylvania as plaintiff, and Henry Ereedley and others as executors of the will of John Ereedley deceased, as defendants, in order to ascertain whether the estate of the said decedent was liable to taxation, under the Acts relating to collateral inheritances, on its increased value as ascertained by sales made after it had been valued and appraised under the 12th section of the Act of 10th April, 1849.
    The following facts were agreed upon.
    John Ereedley, late of the borough of Norristown, died December 8th, 1851, having first made his last will and testament, which-was duly proved before the Register of Wills of Montgomery county, on the 17th day of December, 1851.
    The testator died seised of very considerable real and personal estate, a large part of which it is admitted was subject to collateral inheritance tax under the laws of Pennsylvania.
    Immediately after the probate of the will' and granting letters testamentary thereon, to wit, on the same day, the register of said county appointed W. Rossiter appraiser, under the Act of Assembly providing for the appraisement of estates liable to such tax.
    The appraisement made by Rossiter, filed 23d January, 1852, amounted to $255,746.03, and it is admitted that such appraisement was just and conscionable, and made (as was believed) according to the market or selling prices of stocks and real estate at the time of testator’s death.
    Since the making of said appraisement, the defendants have proceeded under the directions of the will, and made sale of nearly all the stocks and real estate belonging to said testator’s estate, and have found that parts thereof have greatly increased in value, and other parts thereof declined, but that the excess of increase over the appraised value will be about thirty thousand dollars.
    The question for the opinion of the Court was “whether the defendants are bound to pay to the Commonwealth, collateral inheritance tax upon such increase over' and above the appraisement ?” If the Court shall be of opinion that such increase is subject to tax, then judgment to be entered for the plaintiff for fourteen hundred seventy-one dollars and eighty-four cents, ($1471.84.) If the Court shall be of opinion that such increase is not subject to such tax, then judgment to be entered for the defendants.
    The Court below, on November 30, 1852, entered judgment in favor of the defendants upon the case stated.
    The appraisement was of stocks, loans, bonds and mortgages, judgments and other personal property, exceeding $160,000, and the valuation of the real estate exceeded $94,000.
    It was assigned for error that the Court erred in entering judgment for the defendants in the case stated.
    The Act of 1826 was the first Act taxing collateral inheritances. The tax imposed by it was 2-|- per cent, on the clear value of the estates. The Act of 22d April, 1846, increased the tax to five per centum. In the Act of 10th April, 1849, provision was made for fixing the value of the real estate and appraising the personal estate. The provision in the 12th section is as follows:
    “ That in order to fix the valuation of the real estate of persons whose estates are or shall be subject to the payment of a collateral inheritance tax, by the laws of this Commonwealth, the register of wills, of the county in which letters testamentary or of administration shall be granted, shall at the same time appoint one of the appraisers, whose duty it shall he to put a fair valuation on said real estate; and the assessor of the ward or township in which such decedent died, shall be another appraiser; and it shall be the duty of said appraisers to make a fair and conscionable appraisement of the personal estate of the decedent; and it shall further be the duty of said appraisers to assess .and fix the then cash value of all annuities and life estates, growing out of said estate, upon which annuities and life estates, the collateral inheritance tax shall be immediately payable out of the estate, at the rate of said valuation ; and the said appraisers shall then be paid for all services performed by them in the city of Philadelphia and the incorporated districts, and in the other cities and several seats of justice within this Commonwealth, at the rate of one dollar per day, and in the several counties within this Commonwealth, at the rate of one dollar and fifty cents per day. Provided, That any person or persons dissatisfied with said appraisement or assessment, shall have the right to appeal within thirty days to the Register’s Court of the proper county, on paying or giving approved security to pay all costs, together with whatever tax shall be fixed by said Court.”
    In section 2d of the Act of 11th March, 1850, it is provided, viz.: Instead of the appraisers directed by the twelfth section of an Act passed April 10, 1849, &c., the register of wills of the proper county shall appoint an appraiser as often as, and whenever occasion may require, who shall perform all the duties required by the said section. Provided, That the right of appeal established by the 12th section of the Act of 10th April, 1849, shall continue as provided by said Act.

      B. C. Chain, for the Commonwealth.
    — It was stated that the tax was to be assessed upon the clear .value of the estate, and that such value was what remained after the payment of debts, expenses of administration, &c. If there were a deficiency below the appraisement, it should be credited; and if an excess, it is a part of the dear estate. It was alleged that the appeal authorized, seemed to refer principally to the appraisement of annuities and life estates. Also, that the construction of the Act by the Court below would, in numerous cases, tax the creditors of the decedent; as where an estate turns out to be insolvent, which was when appraised considered to be solvent. “ In this estate the appraisement is upwards of $255,000. The debts and expenses of administration will amount to — say $55,000.” It was alleged that the clear value of an estate is what it is worth in the hands of the executors or administrators, at the settlement of the same, and that it includes any excess there may be over the amount of the appraisement.

      Stinson and Boyd, for defendants, the Court declined to hear.
   The opinion of the Court was delivered by

Woodward, J.

— The Acts of Assembly of 7th April, 1826, and 22d April, 1846, relating to collateral inheritance taxes, assess the tax at a fixed rate on the “ clear value” of the estates described in the acts. But how shall the clear value of the estate be ascertained ? The legislature undertook to answer this question by the 12th section of the Act of April 10, 1840, entitled an Act to create a Sinking Fund, &c. As amended by the 10th section of the Act of 11th March, 1850, relating to collateral inheritance taxes, this 12th section requires the Register to appoint an appraiser as often, and whenever occasion may require, for three purposes: 1st. To put a fair valuation on the real estate subject to the tax. 2d! To make a fair and conseionable appraisement of the personal estate. 3d. To assess and fix the then cash value of all annuities and life estates, growing out of said estate. From this appraisement and assessment any person, dissatisfied therewith, has a right to appeal to the Register’s Court, within thirty days, on paying or giving security for costs and taxes.

That the assessment of the appraiser is to be final, if not appealed from, is shown by the Act declaring that it is made “ to fix the valuation of the real estate” — that the appraisement of the personal estate is to be “ fair and conseionable,” and that the tax pn annuities, and life estates, is to be “ immediately payable out of the estate at the rate of said valuation.” But property subject to the tax may be fraudulently concealed, accidentally overlooked, or may not be known to the representatives of the decedent at the time of the appraisement, and, therefore, the Register is to appoint an appraiser “as often as, and whenever occasion may require.” Whenever portions of the estate come to light after the first appraisement, they are to be appraised in the same manner, but as to such portions as were the subject of appraisement, the “ clear value” is fixed, and the law assesses the tax of five per cent. Like the assessment of taxes for state and county purposes, the property subjected is, first, to be found, then valued and appraised, and then taxed; but, instead of officers assessing a rate of taxes on the ascertained property, and valuation according to the public necessities, the law, in this instance, assesses a fixed rate.

Such is the system provided for collateral inheritance taxation, and it does not admit of opening, to take in additions to the clear value of property once assessed. That property is vested in the heir or devisee. If it appreciates, after it comes to him, it is his good luck, — if it depreciates, it is his misfortune; but, as the state would not submit to a reassessment for the purpose of diminishing her tax in the event of a subsequent depreciation, she is not entitled to a reassessment for the purpose of increasing it by reason of an advance in the market value of .the estate, after an assessment by officers of her own appointment, with the right of appeal. The Commonwealth is as much subject to rules of equity and justice, as her citizens. She possesses the taxing power, but when it has been fairly applied, according to her own dictation, it is spent and gone. Having taken five per cent, of the decedent’s estate, according to its clear value, as fixed and conscionably appraised, she cannot return at intervals to take from the new owners five per cent, of what their skill and industry, or good luck, may have added to its value. If she may, when are such returns to cease ? And at what intervals are they to occur ? How long and how often are heirs and devisees to be subject to such visitations ? The law has prescribed no rule for tortures of this sort, and, therefore, they may not be inflicted.

The judgment is affirmed.


author: Black, C. J.

text:
    Brown versus The County Commissioners.
    1. A general statute without negative words will not repeal a previous statute which is particular, though the provisions in the two be different.
    2. The Act of Assembly of 10th April, 1834, creating the County Board of Philadelphia eounty, is constitutional and in full force; it has not been repealed by the Act of 15th April, 1834, relating to counties and townships, and the officers of each.
    3. The County Commissioners of Philadelphia county have no power, without the sanction of the County Board, to subscribe for stock in the Sunbury and Erie Railroad Company, by virtue of the Act of 10th February, 1852, authorizing the corporate and constituted authorities of any municipal or other corporation to subscribe to the same.
    This was a Bill in Equity, filed in the Supreme Court for the Eastern District of Pennsylvania, on the part of John A. Brown and others, citizens and taxable inhabitants of the county of Philadelphia, complaining that Adam Shetzline, William Faunce, and William S. Allen, County Commissioners of the eounty of Philadelphia, were about to subscribe for 20,000 shares of stock in the Sunbury and Erie Railroad Company, at $100 per share. It was further alleged, that they designed to issue bonds in the name of the county of Philadelphia to the amount of two millions of dollars, pledging the faith and credit of the county for their payment. It was alleged that the proceeding was without authority in law, and an injunction was prayed for to restrain the defendants from making the subscription, or issuing the bonds.
    In the answer it was admitted that two of the Commissioners (being a majority) had agreed to subscribe for the stock, and to issue the bonds, for the amount stated in the bill.
    It was averred, that by the Act of 15th April, 1834, the county of Philadelphia was a Corporation, with power to hold personal property, and for such other objects and purposes as may hereafter be expressly authorized by law, and to make such contracts as may be necessary and proper for the execution of the same objects and purposes: That by the fourth section of the act it was provided that the corporate powers of the several counties shall be exercised by the commissioners thereof: and by a subsequent provision, two of the commissioners are authorized to form a board for the transaction of business.
    It was further averred, that the Sunbury and Erie Railroad Company was established by act of 3d April, 1837, and various supplements thereto, and proceedings in.virtue thereof: and that by one of the supplements, approved on the 10th February, 1852, it was enacted, section 1, That it shall be competent to the corporate or constituted authorities of any municipal or other corporation in the Commonwealth, to subscribe for shares in the capital stock of the Sunbury and Erie Railroad Company, and to borrow money to pay therefor, and to make provision for the payment of the principal and interest of the money so borrowed, &e.
    It was further averred, that they had been instructed by counsel that as county commissioners they had authority to make the subscription in question.
    Further, that if the subscription be made, in their opinion, it will not impair the credit of the county, but will be beneficial to the county. — It was further alleged, That petitions have been presented to them, containing about two thousand signatures of citizens of the city and county of Philadelphia, requesting them to make the subscription, and that they had received no remonstrance against it.
    By the 5th section of an Act, approved on the 10th April, 1834, (Acts, p. 267-8), it was enacted, that, “ From and after the passage of this act, the members, for the time being, of the Senate and House of Representatives from the city and county of Philadelphia, shall form the County Board, whereof a quorum shall consist of a majority of the whole number, who shall have free access to the books, papers, and accounts of said office, and without whose consent and approbation, in writing, it shall not be lawful for the commissioners of the said county of Philadelphia to lay any tax, or county rate or levy, or to borrow any money except as is herein-before authorized and provided for.”
    By the 1st section of the Act, the County Commissioners were authorized to borrow on the credit of the county, not exceeding $475,000, to be applied to the payment of debts before incurred or contracted.
    By the 38th section of an act passed 16th June, 1836 (Acts, p. 712), it was enacted as to loans to be thereafter authorized by the County Board aforesaid, in pursuance of the provisions of the Act of 10th April, 1834, that it shall be the duty of the Board, when they deem it expedient, specifically to appropriate the proceeds thereof; to regulate the terms and manner in which the said loan shall be taken, Sc.; and no part of the proceeds of said loan shall be paid out of the county treasury, except under such appropriations, Sc. ’
    The case was argued by Campbell and Meredith in support of the injunction.

      William J). Baker and John M. Bead were for the respondents.
    It was contended that, by the Act of 15th April, 1834, the county of Philadelphia was a corporation, and that the county commissioners were the corporate or constituted authorities of the corporation, within the terms of the Act of 10th February, 1852, authorizing subscriptions for shares in the stock of the Sunbury and Erie Railroad Company. It was stated that the County Board was created by the Act of 10th April, 1834, passed five days before the Act of 15th April, 1834, relating to counties and townships; but that it was not stated in that or any other subsequent Act, that the members of the legislature from the city and county were a part of the corporate authorities of the county. It was intimated that the act establishing the County Board was'unconstitutional, as investing members of the legislature, who have only legislative authority by the Constitution, with powers foreign to their duties as legislators, and of a local and executive and administrative character. It was, however, alleged that the decision of this question was not necessary in this case, as the county commissioners were the only corporate authority competent to act in making the subscription authorized by the Act of 10th February, 1852.
    It was further suggested, that the Supreme Court could not exercise a jurisdiction over municipal corporations, under the Act of 16th June, 1836, giving them a general supervisory power over corporations.
    April 11, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— This is a bill in equity by several citizens and taxable inhabitants of the county of Philadelphia, who complain that the defendants, commissioners of the county, have agreed to subscribe for twenty thousand shares of capital stock in the Sun-bury and Erie Railroad Company, at one hundred dollars for each share, and to pay for these shares are about to make and issue bonds in the name of the county, to the amount of two millions of dollars; pledging the faith and credit of the county for their payment. The bill avers that the large debt thus to be created will seriously impair the credit of the county, and augment the taxation upon the property of the citizens; and that the whole proceeding, as contemplated by the commissioners, is without any warrant or authority of law. The relief prayed for is an injunction to restrain the defendants from making the subscription or issuing the bonds referred to.

The answer admits fhat two of the Commissioners (being a majority) have agreed to subscribe for the stock as alleged in the ■bill, and that they intend to pay for it in bonds of the county, and they are well assured that they have the power by law to do so.

The facts being undisputed, the 'plaintiff’s counsel have laid before us the bill and answer, and moved us for a preliminary injunction. Whether we can grant it or not depends upon the construction to be given to the several statutes, which prescribe the duties and define the powers of the County Commissioners.

It is not pretended, and if it were, it could not be believed for a single moment, that the Commissioners of a county can pledge the property of their constituents for money to be invested in the stock of a railroad corporation, unless it be done in pursuance of some special statute. The general law of the land forbids that money shall be borrowed on the faith of the county for such a purpose, or that public funds already in the treasury shall be so appropriated.

The power now claimed by the defendants, is asserted by their counsel to have been conferred on them by the first section of a supplement to the charter of the Sunbury and Erie Railroad Company, passed February 10th, 1852, which contains these words:— “ It shall be competent to the corporate and constituted authorities of any municipal or other corporation in the Commonwealth, to subscribe for shares in the capital stock of the Sunbury and Erie Railroad Company; and to borrow money to pay therefor and to make provision for the payment of the principal and interest of the money so borrowed.” It is argued that the county is “ a municipal or other corporation,” and that the Commissioners are “the corporate or constituted authorities,” thereof, and therefore they are within the very letter of the statute. Both the propositions from which this deduction is made are denied by the plaintiffs. According to them the county is not a corporation, and if it were, the County Board is a part of its constituted authorities, without whose consent no such contract as the one proposed can be lawfully made.

Assuming for the present, that the county is a corporation within the meaning of the Act, we will consider whether the Commissioners have the authority to make this subscription, and to create this debt without the consent of the County Board. That the consent and approbation of the County Board has not been obtained, is an admitted fact, and that the Commissioners design to proceed without regard to its opinion is plainly avowed.

The County Board was established by an Act of the Legislature, passed April 10, 1834, and is composed of' the members for the time being of the Senate and House of Bepresentatives from the city and county. The Act declares that without their consent it shall not be lawful for the Commissioners to levy any tax or to borrow any money. By another Act passed June 16th, 1836, it was provided not only that the consent, of the County Board should be required to authorize every loan, but also that it should regulate the terms and manner of taking such loan, and that no part of the proceeds should be paid out except in pursuance of specific appropriations to be made by it. These statutes are perfectly plain. No man can read them without understanding them, and all men must understand them alike. If they were not void for want of power in the legislature to pass them, and if they still stand unrepealed, the intended action of the Commissioners is as clear a violation of their duty as can well be conceived. They design upon their own authority and against the will of the County Board to issue the bonds of the county; this is in effect but-negotiating a loan. They propose to use the fund thus raised in the purchase of stocks; this is appropriating the proceeds of the loan. They intend to create a debt of two millions, and this will produce an irresistible necessity for a tax. The powers of borrowing, appropriating and taxing, are therefore all assumed by the Commissioners themselves, and the right of the County Board to control them in the exercise of either, is denied and repudiated in direct opposition to the words of the statute. It is very manifest that the Commissioners are wholly wrong, unless the Acts of Assembly establishing the County Board and conferring its powers upon it, can be got out of their way.

To get rid of these Acts it is argued that they are unconstitutional, and that therefore the Commissioners were right enough in disregarding them. There is nothing in the constitution which makes a County Commissioner sacred and. intangible by the legislature.- The office is created by legislative authority, and all its power and privileges are derived from that source. They who made, can unmake it wholly, and a fortiori can limit and restrict its incidental rights. The constitutional validity of the law is further impugned on the ground that it imposes on members of the Assembly, administrative and local instead of general and legislative duties. It is a sufficient answer to this that the constitution does not forbid it, and that the offices are not in their own nature incompatible. The policy of such a regulation is not for us to discuss.

It is further argued (and here is the strain of the case) that the law establishing the County Board was repealed five days after its passage) by the same legislature which enacted it. If this be true, the members of the legislature from the city and county have for nineteen years been exercising an usurped control over matters with which they had no right to intermeddle, regulating taxation and appropriating many millions of money without any authority whatever. The members of the County Board, including thosé who passed the repealing law, seem to have been totally unconscious of it. The legislature, on seven different occasions since 1834, have treated the repealed statute as a law in full force. The people, the legal profession, the judicial tribunals, and all public officers, have conformed themselves to it. In one case at .least, this Court made it the foundation of a solemn judgment. (7 W. & Ser. 17.) The Commissioners themselves acquiesced in and submitted to it without a complaint, down to the moment when the assent of the County Board was refused to this subscription. The somewhat startling character of this argument is made more so by the fact that the repealing law is not an obscure clause tacked to a private bill; it was not smuggled through the two houses by a trick, not thrown aside among the forgotten rubbish of the old pamphlets, and lately brought to light; not overlooked because it was unseen; but it forms'an important part of what is emphatically called by counsel “ the great Act,” ’framed by a commission to revise the code, submitted to the legislature with an elaborate report, deliberately passed, printed in every digest, known and read of all men, and familiar to the minds of every one who has aught to do with the administration of justice, or with public affairs of any kind.

Nevertheless, though a general error may sometimes gain the strength of common law, it will not make a new statute nor reinstate an old one which has been repealed. We have therefore given to this argument a patient hearing, and not only a respectful but a careful consideration.

The Act which is said to repeal the one erecting the County Board, is the general “Act relating to counties and townships and county and township officers,” passed April 15th, 1834, which in its third section provides, that counties and townships shall have capacity as bodies corporate for certain enumerated purposes, and by the fourth section, declares that “ the corporate powers of the several counties and townships, shall be exercised by the commissioners and supervisors thereof respectively.” It is argued that the words here quoted imply a repeal of the Act of April 10th, 1834.

When two statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the later is always- deemed a repeal of the earlier. This rule applies with equal force to a case of absolute and irreconcilable conflict between different sections or parts of the same statute. The last words stand, and others which cannot stand with them go to the ground. But whenever two acts can be made to stand together, it is the duty of a judge to give both of them full effect. Even where they are seemingly repugnant, they must, if possible, have such a construction that one may not be a repeal of the other, unless the later one contains negative words, or the intention to repeal is made manifest by some intelligible form of expression.

That the law does not favor repeals by implication, is a very old rule. Lord Coke says, it has ever been confined to repealing as little as possible of preceding statutes. (11 Rep. 63.) The principle prevails even where the statutes are penal, and where the humanity of the law would plead for another construction. (6 Rep. 19.) With much stronger reason it applies to statutes which give powers to different persons. If the powers can subsist together, the grant of one is not a withdrawal of the other. (15 East 377.) These authorities have always been followed in Pennsylvania. One act of Assembly is held to repeal another by implication only in cases of very strong repugnancy, (6 W. & S. 209,) or irreconcilable inconsistency. (10 Barr 442.)

Is there any strong repugnancy, or irreconcilable inconsistency between the two acts under consideration ? Certainly not. On the contrary, there is no conflict whatever. It does not follow that the commissioners may not exercise the corporate powers of the county because they must do so in subordination to another body. Their authority is not taken away by a law which regulates their manner of using it. To assert the contrary is to say, that power is not power unless it bo despotic and unlimited. The County Board is not put in the place of the commissioners to perform their functions, but is set up beside them to see that these functions are well performed by the commissioners themselves. The third section of the act of 15th April, 1834, says, the corporate powers of the county shall be exercised by the commissioners. The tenth section of the same act declares, that the commissioners shall make no contract for the erection of a public building without the approbation of two grand juries and the Court of Quarter Sessions. Now these two sections are as inconsistent with one another, as the act establishing the County Board is with either. If it should be said that the tenth section abrogates the third, the answer would be very ready, that they are not repugnant, but may stand together very well.

Besides all this, it seems to be well settled that a general statute without negative words, cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. (6 Rep. 19.) Precisely such are the statutes before us. It is against reason to suppose that the legislature in framing a general system for the State, intended to repeal a special act which the local circumstances of one county had made necessary.

The contemporaneous construction so universally given to these acts, would be entitled to great weight if the question were doubtful. But other reasons make the case too clear to require the aid of this authority.

Upon the whole, we are unanimously of opinion, that the Act of Assembly creating the County Board is in full force, and totally free from the least suspicion of being repealed. It follows, that the attempt of the Commissioners to appropriate public money to the purchase of railroad stocks, and to create a public debt without the consent of the Board, was illegal.

Whether the county is or is not within the words “ municipal or other corporation,” is a question which needs not now to be determined, since whichever way it might be decided, our judgment in this case must be the same.

It was suggested at the bar, but not argued, that the legislature had no constitutional authority to make such a law as that of 10th February, 1852, under which the Commissioners claim the power to- subscribe for stock in a railroad company. The same reasons which caused the counsel not to press the argument of this question will prevent us from giving any opinion upon it.

It is ordered and decreed, that on bond and security being given by the plaintiffs in one thousand dollars, agreeably to the Act of Assembly, a special writ of injunction be awarded to restrain the defendants according to the prayer of the bill, until further order.


author: Lewis, J.

text:
    Grove versus McCalla.
    1. Where a debt is justly due for services rendered, and the debtor promises to pay it when he receives some money in a suit then pending by him against a third person, if the creditor would wait till that time, there is nothing in such a promise against the policy of the law; and the act of the debtor in afterwards examining the creditor as a witness in the said suit does not invalidate the promise to pay.
    2. No corrupt intention to influence the testimony of the promisee being shown, he may recover on the promise after verdict for the promisor in the suit referred to and settlement of it.
    Error to tbe Common Pleas, Philadelphia.

    This was an appeal by Grove, in an action of assumpsit by McCalla v. Grove, to recover $100 for services rendered. The declaration contained several common counts, and a special count in which was alleged a promise by Grove to pay to McCalla $100 for services rendered by him; the same to be paid when a certain suit then pending, by Grove v. Marsh, was settled and the money paid.
    It was testified by a witness, that in February, 1847, McCalla asked Grove to pay some money he owed him. That Grove said he could notbut said, “ If you wait till I get my suit settled with Marsh, and I get my money, I will pay you one hundred dollars for your services.”
    It was further testified, that MeCalla was employed hy Grove to get the witnesses in that suit into Court; and also that Grove gave to MeCalla notes to collect. It was testified that MeCalla was examined as a witness for the plaintiff in the suit of Grove v. Marsh; also that MeCalla went after witnesses frequently. The suit of Grove v. Marsh was pending during several years, having been instituted in 1844, verdict rendered in 1848 for plaintiff and damages assessed at $3600, and the case ended in 1850.
    On the trial the counsel of Grove asked the judge to charge, that if a plaintiff in a suit at law promises one of his own witnesses, who is afterwards examined in the cause on the plaintiff’s behalf, to give him, the witness, a sum of money beyond his witness fees for his services in the cause, when he, the plaintiff, gets his money from the defendant in the cause in which the services are to be rendered, that the promise is against the policy of the law, and as such is a nullity, and cannot be recovered on.
    The judge charged, that if the defendant employed the plaintiff to attend to subpoenaing witnesses, and other duties connected with a suit pending, undertaking to pay him a sum certain out of the money recovered in the suit, there is nothing in the policy of the law to prevent the plaintiff from recovering, notwithstanding the fact that he was also examined as a witness in the case.
    The said charge was excepted to, and was the subject of the assignments of error.

      P. P. Morris, for plaintiff in error.
    — It was contended, that if such a contract as alleged existed, it was against the policy of the law, as tempting to perjury, and could not be enforced: 5 W. & Ser. 321; 7 Watts 152.

      F. C. Brewster, for defendant.
    — It was said, that the promise was not made to pay the plaintiff any sum of money for his testimony in the suit against Marsh; but the promise was to pay him for services rendered in collecting debts, securing the attendance of witnesses in that case, &c. It was stated, that the sum of $100 was due at the time of the promise: the time for its discharge was to be at the termination of the suit. That it was not a promise to pay if MeCalla procured a verdict in favor of Grove. A promise to pay a reward for the conviction of the perpetrator of a crime, is not void: 1 New Jersey R. 310, Furman v. Parker. An agreement to pay one-half of a pension, when recovered from the government, is not illegal: 9 Iredell 119, Mosby v. Hunter. The evidence merely showed a promise to pay a certain sum for services already rendered.
   The opinion of the Court was delivered by

Lewis, J.

— Where a debt is justly due for services rendered, and the debtor promises to pay it when he gets his money and suit settled with a third person if the creditor would wait until that time, there is nothing in such a promise which is against the policy of the law. The act of the debtor in afterwards calling the creditor as a witness in the suit spoken of, does not invalidate the promise to pay. The creditor cannot refuse to give evidence if legally called upon; and it is not in the power of a debtor to relieve himself from the performance of his promises, or the payment of his debts, by calling his creditors as witnesses in his lawsuits. If the promise made the witness interested in the suit, it was good cause for rejecting his testimony, but no ground for defeating his recovery on the promise. We are to take it in this case, that there was no corrupt intention to influence the testimony of the creditor; for nothing of that kind appears in the evidence; and it does not even appear that either party knew that the creditor would be called as a witness in the cause, a fact which did not occur until nearly a year after the promise was made. If it had been known at the time of the promise that the creditor would be called as a witness, that circumstance might have been left to the jury as a fact tending to show a corrupt purpose to influence his testimony. But in the absence of all evidence tending to show such corrupt purpose, the parties are entitled to the benefit of the general presumption of innocence. On the isolated question propounded, the answer of the Court was correct. .

Judgment affirmed.


author: Woodward, J. —

text:
    Mauch Chunk versus Nescopeck.
    1. As no statute has allowed a bill of exceptions to evidence in the Quarter Sessions, the evidence is not brought up on a certiorari to the Sessions in a question of settlement; and though the judge may incorporate the facts into his opinion, the legal effect is the same, as the opinion of the Court is no part of the record.
    2. Except as a Court of error for the correction of errors of record, the Supreme Court has no jurisdiction in questions of settlement and removal under the poor laws: ana on appeal the decisions of the Quarter Sessions as to the merits of such cases are, by the 44th section of the Act of 13th June, 1836, final and conclusive.
    This was a certiorari issued to the Quarter Sessions of Carbon county, at the instance of the plaintiffs in a proceeding instituted by The Overseers of the Poor of Mauch Chunk Township v. The Overseers of the Poor of Nescopeck Township, for the removal of a pauper. The pauper being in Nescopeck township in 1847, was taken into Mauch Chunk township and there left. On the application of the overseers of the poor of the latter township, the pauper was removed to Neseopeck township, and from the order of removal an appeal was taken on behalf of the latter township to the Quarter Sessions of Carbon county. The question at issue was, whether the place of the legal settlement of Keck, the pauper, was in the township of Neseopeck or not.
    Eldbed, J., in his opinion, gave a statement of facts, stating, inter alia, that the pauper, an idiot from his birth, was born in January, 1818, in Neseopeck township, Luzerne county, where.his father then had a legal settlement, and owned property, both real and personal. The father in 1823 or 1824 removed to Sugar-loaf township, Luzerne county, his wife having died, and he took with him his son, the pauper in question. The father again became married, and in 1832 his second wife died, and he removed to Mauch Chunk, then in Northampton county, leaving his son, the pauper in question, in Sugarloaf township, Luzerne county. The father gained a legal settlement in Mauch Chunk. During the residence of the father in Mauch Chunk, the pauper was for a time supported by the township of Sugarloaf, and was afterwards thrown on the township of Mauch Chunk, and supported by that township. The father removed from Mauch Chunk in 1838, and resided for a time in Lausanne township, and in 1844 he returned to Neseopeck township, in which he had formerly resided. The judge stated that it did not appear that he had gained a legal settlement in any place, from the time he left Mauch Chunk until he returned to Neseopeck township in 1844. In this township he married a widow, who had a few acres of poor land. It was however contended on the part of the overseers of Mauch Chunk township, that the father gained a settlement in Neseopeck township, and that the settlement of the son followed that of his father. On the part of the overseers of Neseopeck, it was contended that the father did not regain a legal settlement in Nescopeck township after his return there in 1844. , It was stated by the judge that in 1846, the real estate was assessed to the father, but was paid by the wife. In 1847 the property was assessed to him, but' the taxes were not paid. The father testified that he was poor and not able to support his son. The Court said it was clear that the father had not gained a residence in Neseopeck township since his return there in 1844, unless he acquired it by his last marriage, and in right of the estate which his wife had before his marriage to her. The Judge thought that the estate which seemed from the evidence to be in the husband for life, by the 9th section of the Act of 1836, gave to him a settlement in Neseopeck; but he expressed the opinion that the case did not turn on that question. He stated that long before the pauper arrived at the age of 21, in consequence of the inability of his father to support him, he was placed in the township where his father had acquired a settlement (Nescopeck), and supported at the expense of the public, and that this was the ease when he arrived at the age of 21 years and long afterwards; and thus at the time when he arrived at the age of 21 years he ceased to be a member of the family of his father, or to receive support or protection from him. That therefore he did not come within the rule of the case against the Overseers of Beaver Township, 3 W. Ser. 548; viz.,’ as deriving a settlement from that of his father.
    He farther said that whilst the law is not disputed that the father is bound to support his son, if he is able to do so; he did not consider that it followed that the son must be removed to the township where his father resided in order to enforce that duty. If 'the father is of sufficient ability and resides in Nescopeck, the overseers of the .poor of Mauch Chunk can reach him with process. He was of opinion that the pauper was unduly removed to Nescopeck township, and therefore the decision was in favor of the appellants.
    It was assigned for error that the Court erred in not confirming the order of removal from Mauch Chunk to Nescopeck township.

      Porter, for Mauch Chunk township.

      Reeder, for Nescopeck township.
   The opinion of the Court was delivered by

Woodward, J. —

Notwithstanding the 44th section of the Act of 13th June, 1836, relating to the support and employment of the poor, makes the decision of the Quarter Sessions on appeal in pauper cases final and conclusive, yet it is settled that certiorari will lie to remove the proceedings, in such cases, into this Court. It is a jurisdiction that was exercised under our poor laws prior to the Act of 1836, notwithstanding similar restrictive clauses, and has been constantly exercised since that enactment. In the case of The Overseers of Derry v. The Overseers of Brown, 1 Harris 389, it was ruled, that proceedings in pauper cases may be removed into this Court by certiorari, to correct any error in the process, proceedings, judgments, and decrees of the Quarter Sessions that may appear of record; but not to examine into the merits of the controversy upon facts. This, we apprehend, is giving the appropriate effect to the restrictive words of the 44th section of the Act of 1836. They were not intended to exclude the jurisdiction of this Court as a court of review, but only to exclude a re-trial of the merits. Certiorari is a writ of common right, to be taken away not by implication, but only by express words. Statutory restrictions, similar to that of the 44th section, have been held not to take away the remedy by certiorari: Rex v. Morely, 2 Burr. 1040; Rex v. Jukes, 8 Term R. 544.

A certiorari to the Quarter Sessions after final judgment or order, is equivalent to a writ of error to the Common Pleas, and the reason that it does not bring up the evidence like a writ of error, is because no statute has allowed bills of exception in the Quarter Sessions. The record in both cases is removed — in one with the evidence added by virtue of an Act of Assembly — in the other without the evidence, because the law has provided no mode for placing it on the record.

But suppose the judge recites the evidence in his opinion, does that make it part of the record ? In England the Sessions state the case in questions of parochial settlement, and removal of paupers, and send it up to King’s Bench in answer to the certiorari. But this practice has never prevailed with us. We have no mode of verifying evidence except by bills of exception ; and as this is not used in the Quarter Sessions, to allow the judge to send up whatever his discretion, taste, or caprice might dictate, would increase the proverbial uncertainties of the law, and involve us in an abortive attempt to administer justice to parties without the assurance that we had their real case before us. Nor does the judge help the matter by putting the facts into his opinion; for his opinion is no part of the record. And what is to certify us that he has introduced all the facts in evidence; that the evidence was all competent and properly admitted, and that he did not exclude evidence that ought to have been admitted? A record that is not subject to the scrutiny of a bill of exceptions can never import verity on subjects like these. “ Granting a case,” by the Justices in England, is not matter of duty but of discretion; though when they have stated it, mandamus lies to compel them to send it up: Chitty’s Prac. vol. 2, 381.

If we were disposed to follow this analogy, and entertain jurisdiction of such cases as the Sessions should be pleased to state, the prohibitory clause of the 44th section would be in our way; for that declares, that the decision of the Quarter Sessions on appeals shall be final and conclusive. And if these words, as we hold, exclude a re-trial of the merits, it matters not how accurately the judge states the case, we cannot pass upon it as an appellate tribunal without violating a positive statute. In a word, our common law jurisdiction, though not taken away, is abridged by express legislation, and nothing but legislation equally express can remove the restriction.

Nor will appeal lie; for this exists only where it is given by statute, as in proceedings in the Orphans’ Court and final decrees in equity. Instead of being given by the Act of 1836, appeal, which is in the nature of a new trial, is expressly denied. Except, therefore, as a Court of Error for the correction of errors of record, we have no jurisdiction in questions of settlement and removal under our poor laws; and the decisions of the Quarter Sessions as to the merits of such cases, are “ final and conclusive.”

Finding no errors in this record, the proceedings of the Quarter Sessions are affirmed.


text:
    Bodine versus Glading.
    1. To entitle a party to a decree for specific performance, the contract must be mutual; both parties must have a right to compel specific performance.
    2. Real estate was sold at public auction. By the terms of sale, the title was undoubted, the purchase-money to be paid within fifteen days from the sale, or the property might be sold at the risk and expense of the purchaser.
    On the part of the purchaser objection was made to complying on account of a defect in the acknowledgment, by a married woman, of one of the deedsi through which the title was derived. Above two months after the sale, in reply to a letter giving information of the death of the feme covert before the sale, and requesting performance, the agent of the vendee gave notice of the., refusal of the vendee to comply. The vendee subsequently engaged in business requiring considerable capital. The bill of the vendor asking for specific performance was subsequently filed, and afterwards, before a master, satisfactory evidence was exhibited of the death, previous to the sale, of the femé covert whose acknowledgment was alleged to be defective.
    It was Held, that as the vendor was not bound to convey after the expiration of the fifteen days fixed for payment of the purchase-money by the conditions ’ of sale, he was not entitled to a decree for specific performance.
    3. As to the materiality of time, see this case.
    Appeal from the decree of the Common Pleas of Philadelphia county, overruling exceptions to a master’s report as to the time satisfactory evidence of title was exhibited, and dismissing a bill asking for. specific performance of a contract of sale of real estate.
    On the 20th June, 1850, John A. Stewart assigned to E. E. Tarr all his estate, including the premises in question, for the benefit of creditors. The assignee exposed the premises to sale, at auction, on the 10th April, 1851. The printed advertisement of the premises contained the words, “ Title undoubted, terms at sale.” The terms declared at the sale were “cash to be paid within fifteen days from sale, or the property may be resold at the risk and expense of the purchaser.” The defendant, Glading,' purchased the premises at the sale for the sum of $9300; and in a day or two after the sale, employed a conveyancer, to examine the title. In the chain of title was a deed from Benjamin Johnson and wife, to Chamberlain, dated May 18, 1802. This deed was acknowledged by Johnson alone, before the Mayor of Philadelphia, on the day it bears-dat'e, and recorded July 13, 1802. The acknowledgment by his wife was before a justice of peace of Massachusetts, as follows:
    “ Commonwealth of Massachusetts. — Essex, ss. June 10th, 1802. — The above said Rachel Johnson personally appeared before me, and acknowledged the foregoing instrument to be her voluntary act. Signed,
    “James Gabdinee, Justice of the Peace.”

    There was also a certificate, under the seal of that Commonwealth, that Gardiner was a justice of the peace.
    On the part of the complainant it was alleged, that the acknowledgment was in conformity with the laws of Massachusetts; whilst on the part of the respondent it was alleged that there was no provision by the laws of Massachusetts for the separate examination of a married woman, in regard to the execution of a conveyance purporting to pass her interest in real estate.
    The conveyancer considering the. acknowledgment defective, a correspondence was had in relation to Mrs. Johnson, and a letter from Lynn (in Massachusetts), dated 6th mo. 23, 1851, was received, stating that Mrs. Johnson died in 1810 or ’ll, leaving no children. On the 25th June, 1851, this letter was enclosed to the conveyancer ; the expectation expressed that Glading would take the property, otherwise it would be sold at his risk and cost, and offering to put the evidence of the death in legal form. On the 27th June the conveyancer replied that the objection was not removed, and as. the time for the' completion of the ■ title had elapsed, Glading, as he had before expressed his determination not to keep thé matter open, had given up the purchase.
    On the 7th July the complainant’s counsel, in writing, demanded specific performance. In August, 1851, Glading engaged in business as a flour dealer, which, it was alleged by his counsel, required large advances upon consignments. On 5th September, 1851, the bill in question by E. D. Tarr, as assignee of Stewart, was filed for a decree of specific performance. Bodine' was appointed assignee in the room of Tarr, who died during the pendency of the proceedings. ...
    Allison, J., made a decree for the dismissal of the.bill'with costs.
    It was assigned for error that the Court erred, 1. In overruling the exceptions to the Master’s report. • 2. In deciding that the title, as' originally exhibited, was defective. 3; In deciding that the evidence exhibited in June, 1851, of the death of Mrs. Johnsc®, coupled with the offer to put that in legal form, did not from that time, as respects the defendant, remove the supposed defect. 4. In dismissing the bill. 5. In not decreeing specific performance of the contract mentioned in the pleadings. 6. In rejecting the deposition of John A. Stewart, the assignor, who had released all interest.

      McMurtrie, for plaintiff in error. —
    It was contended that the title was perfect when the sale was made. That the deed was acknowledged so as to bar dower in Massachusetts. That by our Act of 1840, section 15, to such an acknowledgment the same effect is given, as if it had been taken before a justice in Pennsylvania. Also that the Act of 1851 cures all such defects in deeds recorded more than thirty years, as was the case here.
    2. Time was not of the essence of the contract. In Equity the expiration of the time fixed is not a defence, except when it has been made essential by express agreement, or where from the circumstances of the case, such must have been the intention of the parties: 2 Harris 143, Remington v. Irvine; 3 Harris 429, Tiernan v. Roland; 2 Penna. Rep. 211.
    When time is essential, it may be waived by the acts of the parties, (6 Jurist 725, BGoyes v. Liddall ;4 Y. & Coll. 505, Ex parte Gardiner), a,nd in this ease the purchaser dealt with the contract as existing after the fifteen days had elapsed.
    3. Where time is not essential, or being essential has been waived, the purchaser cannot abruptly rescind the contract for non-production of evidence of title. He must give notice of his intention, and allow what under the circumstances is a reasonable time: 1 Hoff. Ch. 139. Hare 158; 6 Beav. 124; 2 Id. 183; 3 Harris 429.
    4. The vendor’s threat to sell did not preclude him from having the contract enforced in equity: 4 Shepley 164; 3 Gilman 626; Dart. on Vendors 516; 14 Jurist 255; Daniel Ch. Pr. vol. 2, p. 961.
    The purchaser did not engage in the flour business till August, 1851; not till after he had received notice of the intention of the vendor to proceed for specific performance.
    G. W. Biddle and Cadwalader, for the respondent.
    — It was contended, as before stated, that the laws of Massachusetts did not provide for the separate examination of a married woman in regard to her execution of a conveyance purporting to pass her interest in real estate: 5 Mass. 449-454-463. It was also contended that the objection on account of the certificate as to her acknowledgment, was operative till the production in April, 1852, of the proof of her death; and that it was acquiesced in by the assignee at least as late as June, 1851. It was further contended that where the acknowledgment was, as in this case, taken before a justice in another state, who was not presumed to have been acquainted with our law and therefore not presumed to comply with its requirements, the defect was not cured by our Acts of 1840 and 1850.
    2. It was contended that as by the terms of sale the vendor had the right to re-sell, time was, in this case, of the essence of the contract. Also that Glading, after waiting a reasonable time, declared his intention of abandoning the contract on account of the defect, and of using his money in another way; and that this intention was communicated to the plaintiff’s agent; and he has entered into business. 3. The letters referred to. were not sworn to. 4. The vendor’s declaration of his purpose to sell at the purchaser’s risk, under the clause in the conditions of sale, ought in equity to preclude him from enforcing specifically the contract in question.
   The opinion of the Court was delivered by

Lewis, J.

— This is a bill for the specific performance of a contract for the purchase of real estate, sold at auction, under a written condition of the sale, that “ the cash is to be paid within fifteen days from sale, or the property may be resold at the risk and expense of the purchaser.” The sale was made on the 10th April, 1851, and the title was to be “ undoubted.” Objections were made to the title on the ground of the defective acknowledgment by the wife of a person through whom the title was derived. This objection was afterwards removed by producing evidence of her death. On the 25th June, 1851, the vendor addressed a letter to the vendee, requesting the latter to comply with the terms of sale, and take the property, and stating that otherwise he would “ sell it at the risk and cost of the purchaser.” This letter was answered on the 27th June, 1851, by one from the purchaser, in which he stated that he had given up the purchase on account of the defect above alluded to, and must decline holding himself, at this late day, in any way responsible.” The Court below dismissed the bill with costs.

To entitle a party to a decree for specific performance, the contract must be mutual. Both parties must, by the agreement, have a right to compel specific performance; otherwise it would follow, that the Court would decree a specific performance where the party called upon to perform it might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet if advantageous to him, he could not compel a performance: 1 Sch. & Lefr. 18; 2 Com. Dig. 411; Newlin on Contraéis 153. In the case before us, it may be doubted whether the vendee, after the expiration of the time for the payment of the money, had the usual rights of a vendee to enforce specific performanee. In general, time is not of the essence of a contract, according to the rule in equity. But can it be supposed that either party. intended to be bound by this rule, and to have his hands tied, and the estate locked up for an indefinite period of time, to be measured by the conscience of the chancellor? See 1 John. Ch. R. 379 ; Fonbl. Eq. 48, note. The law is necessarily modified by the usages of the people; and when it ceases to keep pace with them, it fails of its object, and produces more injury than good.. In this age of enterprise, business of every kind moves not only with railroad speed, but, in many instances, with lightning velocity. Commercial transactions would be greatly embarrassed, and the grossest injustice would be done if the people are prohibited from making their own contracts.

In this case it is not altogether clear that either party had in view any other consequence of a breach of the contract than a resale, and the payment of the difference and the expense of the resale. If the contract was mutual, either party had a right to insist upon a resale after the breach. If the vendor alone had that right, the want of mutuality would seem to preclude him from asking specific performance. Where the contract itself has assessed the damages which the party is to pay upon his doing or omitting to do a particular act which he has covenanted to abstain from or perform, equity will not interfere either to prevent or to enforce the act in question, or to restrain the recovery of the damages: 2 Vern. 119 ; Fonbl. Treat. Eq. 142, note; 2 Bro. P. C. 436 Newlin on Contr. 313.. What is the difference between an agreement assessing the damages and one providing the means of assessing them ? The foundation of the chancery jurisdiction in decreeing specific performance is the supposed impossibility of doing justice to the parties by the award of damages for the breach. But where the parties themselves have agreed upon the compensation for the breach, or, what is the same thing in principle, have provided the means by which it may be ascertained, the necessity for the interference of the chancellor no longer exists, and his jurisdiction falls to the ground. Without positively affirming these principles, it is sufficient to say, that the decree of the Court under the circumstances of this case is correct, and must therefore be affirmed.

Decree affirmed.


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    Ripka’s Appeal in the matter of Streets in the Borough of Manayunk.
    1. "Where an official duty is required by law, the whole duty should be performed ; and where no time is prescribed within which it is to be completed, one part of the duty may be performed at one time and the residue of it may be performed afterwards.
    2. By the Act of 13th July, 1842, the road committee appointed by the burgess and council of the borough of Manayunk were authorized and enjoined to survey the roads, streets, and alleys already laid out and within the borough, and also to lay out such others, or widen those already laid out, as they shall deem necessary, and to make a draft or plan thereof, and return it to the Court. A survey and plan of the streets, &c., in part of the borough was made and confirmed; and subsequently a survey and plan of the streets, &e., in another part of the borough was made, and after exception was confirmed: held that no time being prescribed for the performance of the duty, part of the same could be discharged at one time and the residue at another.
    This was an appeal from the decree of the Court of Quarter Sessions of the city and county of Philadelphia, confirming the plan of that part of the borough of Manayunk lying north-west of Green lane.
    On the 24th January, 1832, an Act was passed authorizing the laying out of streets and roads in the township of Passyunk, in the county of Philadelphia. See Acts of 1831 — 2, pages 27-8-9. By that Act commissioners were appointed to survey the streets, roads, and lanes laid out within certain bounds defined in the Act, and also to lay out such other streets and roads within the district as they shall deem necessary, &c., and making it their duty, after having made such survey and laid out such streets and roads as they shall deem proper as aforesaid, to make or cause to be made a correct draught or plan thereof, &e., and return it to the Court of Quarter Sessions of the county of Philadelphia, &c. Public notice of its being filed was directed to be given, and that on a certain day designated, the Court would hear objections to it. 'The preamble to the 4th section was as follows: And, whereas, the public convenience will be at present answered by the certain knowledge where and in what manner such streets, roads, and lanes will in future run, but it will not be necessary immediately to lay them all open; in order, therefore, to provide for the opening of the same from time to time, as the increasing improvements may require. And it was enacted by the 4th section,- That upon the petition of any number of the citizens of said township, not less than twenty, whose lands lie near or adjoining to such streets, roads or lanes, it shall and may be lawful for the Court of Quarter Sessions, after hearing the petitions, and such freeholders through whose land such street or road shall pass as shall offer objections thereto, to appoint viewers to report whether it be proper at the time to open such street or road ; and if they shall be of opinion, that the state of improvement in the neighborhood thereof shall require it, they shall issue an order to the supervisors of the roads, in the township of Passyunk, requiring and enjoining them to open such street or road, and to cause the same to be put in order and kept in repair, in the same manner as other streets are bylaw to be opened repaired and maintained, and the owner or owners of ground through and over which any of the streets or roads shall pass shall proceed in the same manner to obtain indemnification for any injury they may sustain thereby, as if the said streets or roads had been opened in the manner usually pursued for opening roads.
    Another Act was passed on the 13th July, 1842, (Acts of 1842, page 372), and the plan, part of which was in question, was made in pursuance of the 4th section thereof, which was as follows:
    “ That the road committee appointed by the burgess and council of Manayunk, taking to their assistance an able surveyor, shall have full power and authority, and are hereby enjoined and required to survey the roads, streets, lanes, and alleys already laid out, and within the borough, and also to lay out such other roads, streets, lanes, and alleys, or widen those already laid out within the said borough, as they shall deem necessary for the convenience and accommodation of the inhabitants thereof; and it shall be the duty of the said committee after having made such a survey, and laid out such streets, roads, lanes, and alleys as they shall deem proper as aforesaid, to make or cause to be made a correct draught or plan thereof, with every explanation necessary for the perfect understanding of the same, and return it to the Court of Quarter Sessions of the county of Philadelphia; and it shall be the duty of the Clerk of the said Court to receive and file the said draught or plan in his office for public inspection and examination, and to give public notice by printed handbills posted up in at least ten conspicuous places in the said borough, that on a certain day to be appointed by the Court, the said Court will hear any objections that may be made thereto by any person owning property within the said borough, who shall consider themselves aggrieved, and the said Court shall at the time appointed adjudge and determine whether the same shall be fully and finally established, and whether any and what alteration shall be made therein, and shall direct the said draught or plan, with such alterations as may be made, to be recorded ;■ and from thenceforth all the roads, streets, lanes, and alleys so approved shall be for ever deemed, adjudged, and taken as public highways.”
    In September, 1843, a plan was made and confirmed of the portion of the borough of Manayunk lying south-east of Green lane.
    In January, 1850, the plan of the remainder of the borough, lying north-west of Green lane, was presented to the Court, and filed. On 7th Eebruary, 1851, on the part of Ripka, exceptions to its confirmation were filed — they were,
    1. That Eranklin street east of Hamilton street, and Hamilton street north or north-west of Eranklin street, as laid down in said plan, are neither of them necessary for public use; and, if opened, will cause extensive injury and damage to the property of this ex-ceptant; and he, therefore, objects to their extension as laid down on said plan.
    2. The said proceedings under the Act of Assembly of July 13th, 1842, are void; a plan of part of said borough having been made and confirmed in September, 1843.
    On 21st June, 1851, the Court adjudged that the plan filed should be finally established, excepting the sidewalk of the width of ten feet on Main street, &c. And it was further adjudged that all the roads, streets, lanes, and alleys, except the said sidewalk, shall be deemed and taken as public highways, and that the draught or plan be recorded, &c.
    Erom the- decree Ripka appealed, and exception was filed that the Court below erred in confirming the plan of part of the borough lying north-west of Green lane, under the Act of July 13th, 1842, a plan of another part of the said borough having been made and confirmed in September, 1843.

      Emlen, for the appellant.
    — It was contended that the Act of 1832 was still acted upon for opening streets, laid down on the plan of the borough, which had not been opened. That the two Acts of 1832 and 1842, together, did not authorize different surveys and plans of the borough, at different times and by different persons, but only one. That one plan having been made and confirmed in 1843, no other one could legally be confirmed. The case in 4 Ser. & R. 106, The Road from Eitzwater street, and the case of a road in the Borough of Mercer, 14 Ser. & R. 106, were cited. Persons desiring other roads must have recourse to the general road laws.

      Jones and Clay, for Manayunk.
    — A power may be executed in part at different times, and over different portions of the subject of the power: 1 Sugden on Powers 857. A confirmation will aid a defective execution of the power: 7 Barr 530, Coryell v. Dunton.
    In the present case the original plan comprised the whole borough, and the parties, authorized by the Act of 1832 to make it, have been superseded by the corporation created by the Act of 1842. The plan was but partially executed, at first, and has been completed by the second proceeding. It was not contended that a new plan could, legally, be made of the part formerly confirmed; nor, if the plan in question be confirmed, that another plan can legally be afterwards made under the Acts of Assembly; but merely that the plan provided by the Act may be made in distinct parts, and that the power to make a plan was not exhausted by the plan first made. It was said that Green lane divides the borough laterally, and it was contended that the commissioners did not suppose that by the plan made in 1848, they had done all that they supposed to be requisite. That the Act of 1842 required a survey of the roads, &c., already laid out and within the borough; and that there were roads and. streets then laid out within the part of the borough which were not embraced in the plan of 1843.
   The opinion of the Court was' delivered by

Lewis, J.

— The objection to the survey of the streets of Manayunk, as confirmed by the Quarter Sessions, is, that the committee appointed by the Burgess and Council performed a part of their duty at one time, and the remainder at another. If the case stood upon the footing of an ordinary power of appointment or revocation, the law is, that the power need not be executed to the utmost extent at once, but may be executed at different times over different parts of the estate: 1 Sugd. on Powers 357. But the ease does not rest solely on this ground. By the Act of 13th July, 1842, the committee appointed by the Burgess and Council were not only empowered to make the survey, but were expressly “ enjoined and required” to do so. There is a difference between a naked power, which lies at the election of the party to execute or not, .at his pleasure, and an official duty which he is under a legal obligation to perform. In the latter case the preservation of the public rights demands that the whole duty be performed; and where no time is. prescribed within which it is to be completed, the performance of part at one time, is no reason why the residue should not be performed at another. Where a power to graduate the streets was given to the corporation of Georgetown, it was held to be a continuing power to be exercised from time to time: 6 Wheat. 593. In this case, the survey of the southern portion of the borough at one time, is no reason why the northern portion should not be surveyed at another.

The decree of the Quarter Sessions is affirmed.