Prudential Trust Company to release lots of similar value upon payment of a fixed consideration would not of itself afford the plaintiff relief, however strong his equity appears. Neither in his deed, nor in the mortgage, appears any stipulation or agreement of release; nor was any effort made to show an outside parol or written agreement to that effect. This is a work by an eminent authority But when the Prudential Trust Company, on psychology. From the title it might be mortgagee, after the date of Voegtly's deed, supposed that it was a practical work on released lots sold subsequently to the sale to the examination of witnesses in court. Its him, its release so made shifted the lien only object, however, is an attempt to deal from the prior lots sold also, and fastened it with problems where psychology and law on those of a later date. Pieces of land come in contact. As the author says, he subject to a common encumbrance, when does not attempt to touch on the psycholsold successively by the owner are liable for ogy of the attorney, the court or the jury, the encumbrance in the inverse order of doubtless subjects of much interesting exalienation; Martin's Appeal, 97 Pa. 85; con-perimental treatment. The work treats in sequently if the holder of the encumbrance a scientific and psychological way of illureleases the piece last sold this will, if the sions, the memory of witnesses, the detecpieces released are of sufficient value to pay tion of crime by the association of ideas, the debt, operate to discharge the lien of the the traces of the emotions, untrue confessencumbrance on the paris previously sold; ions and their causes, hypnotism and crime, Turner v. Flenniken, 164 Pa. 469. and lastly, the prevention of crime. Under the method of administering criminal law in this country, it cannot be said to be a practical work. However interesting and perhaps successful the method of detecting crime may be, it could not be used in any court without destroying that protection which our law has vouchsafed the accused. The book is instructive and very interesting, because it treats of a subject that has not been studied scientifically until recent years. It is urged, that this applies only in case the mortgagee had notice of such subsequent sales. The answer is, that it had constructive, if not actual notice of such sales. When it, of record, released in favor of subsequent purchasers it knew that its mortgagor had these lots for sale, that such was the purpose for improving the property, and it was bound to know from the large number of releases executed by it that the premises released had been sold. At best, failure of notice would only subject the plaintiff to liability for any unpaid purchase money; Prafsinger v. Hutchison, 24 P. L. J. 50, and of this there is no evidence; nor is the question of notice raised by the answer, Martin's Appeal, supra, and therefore even if material, has no applica tion here. For plaintiff, J. McF. Carpenter and Ed. G. Hartje. For defendant, Stone & Stone. A statute regulating the sale of stocks of goods in bulk is held, in Compton v. Dietlein (La.) 12 L. R. A. (N.S.) 174, to have no application to a transfer in payment of a creditor. A statute providing that actions for wrongs done to the property rights or interests of another shall survive the death of the wrongdoer is held, in Bates v. Sylvester (Mo.) 11 L. R. A. (N.S.) 1157, not to include a widow's claim for negligent killing of her husband. The satisfaction of a debt on receipt of 30 per cent of its amount is held, in Melroy v. Kemmerer (Pa.) 11 L. R. A. (N.S.) 1018, to be supported by a sufficient consideration, where the debtor contemplated bankruptcy, and the creditor dissuaded him therefrom and accepted his offer of 30 per cent in satisfaction of the debt, received the amount, and closed the account. Pittsburgh Legal Journal loan. On said 5,000 ton order the receiver shipped 2,897.55 tons and refused to deliver the residue. CONCLUSIONS OF LAW. 1. The status of the creditors was fixed as of the date of the receiver's appointment. On that day the company's property passed to the custody of the law. Subsequent events could neither modify nor enlarge the Court of Common Pleas No. 1, rights of creditors: Cowan v. Plate Glass Co., ALLEGHENY COUNTY. 184 Pa. 1. 2. The receiver held the legal title of the trust estate for distribution to creditors ac RIDDLE, Receiver of Amyville Youghiogheny Gas, Coal & Coke Co. v. ELDER, doing business as the Blythe-V. Elder Coal Co. cording to their rights and priorities: Cowan Plate Glass Co., 184 Pa. 1; Peckham's Assigned Estate, 35 Supr. 330. 3. The rights of creditors being thus im Receiver-Illegal perfererence—Rule for judg-pressed upon the trust, plaintiff and de ment. In an action by the Receiver of a coal company, for coal shipped by him (as receiver) to the defendant, the defendant by way of defense alleged that prior to the Receiver's appointment he had loaned the company $5,300; and, having given the company an order for 5,000 tons of coal, it was agreed between himself and the company's president, that the coal to be shipped on said order should constitute a proportional payment of of said loan. Held, that the attempt by the defendant and the receiver to carry out said agreement was unlawful, and that judgment should be entered for the plaintiff. No 400, March Term, 1908. Rule for judgment. fendant were powerless to create the preference and payment set up by the defendant. 4. The receiver's suit against the defend- For plaintiff, Griffith & Mitchell. One obtaining a conveyance from the state under an unconstitutional statute pro Opinion by BROWN, P. J. Filed May 9, viding for the disposal of land upon which 1908. STATEMENT OF FACTS. the taxes are delinquent by a so-called redemption is held, in Bradbury v. Dumond 1. This rule for judgment, for want of a (Ark.) 11 L. R.A. (N.S.) 772, to have suffisufficient affidavit of defense, arises in ancient color of title to perfect a title by adaction to recover $3,252.66 for coal shipped verse possession under the statute of limitatby plaintiff to defendant in August, Sep-authorities on effect of an invalid tax deed ions. A note to this case reviews the other tember, October and November, 1906. as color of title within general statutes of limitations. action at law and suits in equity before, during and after the proceedings in bankruptcy against the partnership; and that the discharge of the partnership, where the partners are not adjudicated bankrupt, does not discharge the partners from their liability for the partnership debts. Court of Common Pleas No. 2, ALLEGHENY COUNTY. FIZGIBBON v. THE PITTSBURGH & LAKE ERIE R. R. CO. Railroads-Widening-Powers of railroad Purpose of condemnation. main line of its railroad, the ownership of the land in the railroad being in fee simple. On November 28th, an agreement was entered into between the defendant company and the Wabash Pittsburgh Terminal Railway Company and the West Side Belt Railway Company, which recites the desire of the defendant company to improve the grade and alignment of its railroad near the point in question, the agreement of the parties to exchange certain lands for their mutual accommodation, and the settlement of certain disputes existing between them; the change in question without reference to the that these properties should be exchanged; C railroad. A filed a bill to restrain B, on the that the West Side Belt Railway Company ground that this was not a widening or straight-should abandon its coal tipples at the mouth ening of its roadway. Bill dismissed. of Saw Mill Run, a short distance down the In pursuance of an arrangement between the B railroad and the C railroad for a relocation of tracks B condemned a lot belonging to A. The lot was intended to be used entirely for B's tracks, and B had for some time contemplated No. 281, January Term, 1908. Sitting in river from the place in question; that a Equity. Opinion by SHAFER, J. Filed January 22, 1908. The bill was originally filed to prevent the defendant from taking lands of the plaintiff under the right of eminent domain without giving bond. A bond was then tendered and refused, and presented to the court upon notice and exceptions filed thereto by the plaintiff, which are still pending. After the presentation of the bond in court, the plaintiff amended his bill, praying for an injunction against the defendent to prevent it from taking the land proposed to be taken by it, even if a bond should be approved, upon the allegation that the defendant company is not endeavoring to take the plaintiff's land to straighten and widen its road, but that its purpose is to give another railroad a right of way along the river beside and partly over its own tracks, and that the defendant has no right to take the plaintiff's land for that purpose. Upon this amended bill a hearing was had upon motion to continue the injunction originally granted. On this hearing the facts appeared to be as follows: The plaintiff's land in question in this case consists of a lot some 35 feet wide and 70 or 80 feet deep, extending to low water mark on the south side of the Ohio river, in the city of Pittsburgh. The southern boundary of plaintiff's lot is land belonging to the defendant company, used by it as the traffic agreement should be made between the parties to enable them to exchange freight; and that certain additional tracks should be built for this purpose, and that each con pany should build a certain designated part of the tracks and should own and maintain the same, these heing shown by reference to a plot which was given in evidence, marked exhibit D. From this and the testimony of witnesses, it appears that the intention is to take the land of the plaintiff and other lands in line therewith next to the harbor line of the river, to move the four main line tracks of the defendant company upon the land of the plaintiff and to put upon the land now occupied by the main line tracks a number of tracks, which should constitute what is called in the agreement an interchange yard, it appearing from exhibit B that the proposition is that the defendant company shall put down, in addition to the four main line tracks, five other tracks south of the property now belonging to the plaintiff and upon the land now occupied by the main line, these tracks running into and connecting with a like number of tracks to be built by the Wabash Railroad, the connection being some two hundred feet down the river from the plaintiff's land. It therefore appears that all the tracks proposed to be put upon the plaintiff's land, if it is taken, and the tracks to be put upon the land adjoining the land of the plaintiff, are tracks of the defendant company, and as we understand it the only reason upon which the plaintiff alleges that this construction is not a bona fide widening or straightening of the road, is because the tracks to be built where the main line is are intended to connect with tracks of the Wabash Railroad, and that the parties have agreed that this is to be the case. We are quite unable to understand why what is proposed to be done is not a proper and legitimate exercise of the powers of the defendant company to widen its tracks. It further appears that the construction proposed will to some extent straighten the main line of the defendant company, which at this place is upon a curve. It appeared by the evidence given by the defendant company that it had contemplated such a straightening of the right of way since 1902, long before any agreement was entered into with the Wabash Railroad, and that this was deemed to be impracticable because it could not be done without taking the tipple belonging to the other railroad above mentioned, which tipple it has now agreed to abandon. For these reasons the motion to continue the preliminary injunction or to grant a such an injunction upon the amended bill, is refused. For plaintiff, Marron & McGirr. to the City of Pittsburgh. The order of the Quarter Sessions Court confirming the annexation having been affirmed by the Superior Court on the 11th day of November, 1907, the borough thereupon became a part of the city. Relator, a member of the Council of the borough, whose term would expire the first Monday of March, 1910, presented himself for admission as a member of the Cmomon Council of the City of Pittsburgh immediately after the affirmance of the decree of the Quarter Sessions Court by the Superior Court, and requested that he be admitted as a member of that body and permitted to take part in its proceedings, relator's claim to become a member of the Common Council of the city being based upon a clause of the 6th section of the act of 1903, above referred to, which reads as follows: "And the members of council of an annexed borough shall be members of the Common Council of the city, and remain until the expiration of the terms for which they were elected and until their successors are duly qualified under the arrangement of the territory into wards." Upon petitioner's request for admission to membership in the city body being refused, this writ was awarded on his petition, to For defendant, Reed, Smith, Shaw & Beal. which defendants demurred, setting up that (Common Pleas No. 2, Allegheny Co.) COMMONWEALTH ex rel. RILEY v. CITY OF PITTSBURGH. Municipalities-Annexed territory-Councilmen- —Act of April 26, 1903, act of May 28, 1907. The 6th section of the act of April 26th, 1903, which provides that members of council of an annexed borough shall be members of the city council is superseded by the act of May 28th, 1907, which provides for the creation of new wards in annexed territory and special elections of councilmen. No. 849, January Term 1908. Mandamus. Opinion by FRAZER, P. J. Filed February 6, 1908. By proceedings had under the act of Assembly, approved April 26th, 1903, P. L. 332, the Borough of Sheraden was annexed the defendants named as Mayor of the city and President of Common Council respectively had no power to admit relator to membership in the Common Council, and that his request should have been made to the Council. At the argument, however, this technical objection was not pressed, and we were asked by counsel for the parties to determine relator's right to membership in the Common Council of the city under the law as it now stands. The act of 1903, while somewhat indefinite, it seems to us, was not intended to continue borough councilmen in office beyond the arrangement of the annexed territory into wards of the city. It is true the act says they shall be members of the Common Council "and remain until the expiration of the terms for which they were elected and until their successors are duly qualified under the arrangement of the territory into wards." This language evidently contemplates further action in the way of either creating a new ward of the city out of the annexed territory or its annexation to an existing ward, and, possibly, if the clause quoted was still in force, might give to borough councilmen the right to serve in the Common Council of the city until that further action was had. However, whether that term of service of borough councilmen in the city council was until the expiration of the term for which elected, is not now material, as the clause of the act of 1903 quoted has in our opinion been superseded by the act of May, 28th, 1907, P. L. 295. This latter act provides for the action the act of 1903 omited, that is, either the creating of a new ward of the city out of the annexed territory or attaching it to an old one. The act applies specifically to territory "which is now or may hereafter become part of a city," and provides that upon petition to the Court of Quarter Sessions of at least twenty per centum of the qualified voters of the annexed territory, such territory shall be erected into a ward or wards of the city, and such decree made as shall give to the people of the territory representation in the different branches of the city government, including members of both Common and Select Councils. The act also authorizes the court to order a special election to fill the various ward offices and elect members of councils, which officers shall hold office until their successors are elected at the next municipal election. Certainly the legislature did not intend that the annexed territory should at the same time be represented in the Common Council by both hold-over borough councilmen and councilmen elected at a ward election subsequent to annexation, and as the act of 1907 is the latest legislation on the subject, is more specific in its terms than the act of 1903, and gives to the annexed territory the same representations in councils as other wards of equal population have, the reasonable and only conclusion to be reached is that the Legislature intended the latter act to supersede the former. In this case, upon petition of the required number of voters of the annexed territory, the Court of Quarter Sessions, on December 21st, 1907, created the territory embraced within the late Borough of Sheridan into the Forty-third ward of the City of Pittsburgh, and inter alia provided that there should be elected one representative to Select and one to Common Council. True, there is attached to that portion of the decree these words, "subject, however, to any existing laws which may entitle the members of the Town Council of the Borough of Sheraden to be members of the Common Council of said city." This clause, however, is of no effect, because, as we have found, the only law to that effect was the clause in the 6th section of the act of 1903, which was repealed by the act of 1907. It therefore follows that petitioner is not entitled to membership in the Common Council of the city of Pittsburgh, and that representatives to both the Select and Common bodies should be elected at the municipal election following the decree of December 21st, 1907, which is the coming February election. The demurrer sustained and petition dismissed at costs of petitioner. For plaintiff, N. R. Criss.. For defendant, W. B. Rodgers. (Common Pleas No. 2, Allegheny Co.) GREEK v. BORough of leets. DALE et al. Roads-Location Travelled lines-Act of June 19, 1901. Where the travelled portion of a road is within the original lines of the road as legally established, on widening to the full width the road should be widened according to the original lines and not according to the center of the trayelled road. No. 513, January Term, 1908. Opinion by SHAFER, J. Filed March 17, 1908. The bill is for an injunction to restrain the defendants from entering upon plaintiff's land, and removing a fence therefrom, in the process of opening to its full width a street in the defendant Borough. FINDINGS OF FACT. 1. The plaintiff is the owner of a tract of land in the Borough of Leetsdale, fronting some 300 feet on the street in question, having acquired title thereto in the year 1900. |