inasmuch as they have performed the contract as far as it could be lawfully performed, the first point must be resolved in their favor. an Act of Parliament comes in and hinders him from doing it, the covenant is repealed. (1 Salk. 198; Lord Anglesea v. Church wardens of Rugley, 6 Q. B. N. S. 107, 114.) But is the whole cove- Several minor objections were urged by the denant repealed when it is capable of division, and fendant. The first was, that the terms of the one party performs it as far as it can legally be ordinance which require the pavers to be selected performed, and with the knowledge and approba- by a majority of the owners of property fronting tion of the other party? We think not. In on Beckett Street, from Woodland Street to such a case the party cannot lawfully be deprived Forty-third Street, were not complied with. It of his compensation for the part lawfully per- cannot be denied that the paper, dated March 27, formed. 1870, agreeing that the paving should be done by the plaintiffs, was signed by a majority of the property holders on Beckett Street, between Woodland Street and Forty-third Street. It is true, that, in the paper referred to they describe themselves as the owners of property on Beckett Street, between Woodland Street and a point four hundred and five feet west of Forty-second Street, but it was in evidence that the ground throughout the whole remaining distance, that is, from the point indicated to Forty-third Street, all belonged to one person, viz., the corporation known . as the Hamilton Park Association, and counting in the association as an owner, it is quite clear that the signers of the paper were a majority of owners between Forty-second and Forty-third Streets. This was one of the facts in issue, and was found by the jury in favor of the plaintiffs, and found upon sufficient evidence. It was also objected, that the paper signed by the majority of the owners was dated before the passage of the ordinance. We do not think this a tenable objection. It would be putting a very rigid construction upon the requirements of the ordinance to hold that a selection made imme But it is said that the only authority which the Highway Department had over the subject was to procure the paving of Beckett Street throughout the whole distance from Woodland Street to Forty-third Street, and that if the street could not be lawfully paved for the whole distance mentioned in the ordinance, the Highway Department had no authority to accept of less, or to authorize the paving as far as it could be lawfully done. Corporate agents, and especially the agents of municipal corporations, are to be confined, doubtless, within the literal boundaries of the authority delegated to them. In general, this rule is to be rigidly enforced. It is one of the necessary defences against dishonesty and a profligate administration of municipal affairs; and I may add, it is a rule which this Court has always been strenuous to maintain, and which it would not willingly relax. It has no application, however, to the circumstances of this case, for here has been no unwarrantable departure from the letter of the authority. The City Councils authorized their agents to have a work performed, which, up to a certain point, was altogether lawful, and beyond which the performance was pro-diately before the passage of the ordinance, and hibted by law. Was not this a good authority to the agent to have the work performed so far as it was lawful? Especially as the ordinance remained unrepealed, and stands to this day the evidence of a sufficient authority for everything which could be lawfully done under it. It is to be observed, also, that the Highway Department, in the form of the contract, followed in good faith the very letter of the ordinance, and thereby fell into the same error which the Councils themselves had committed; for the agreement which they prepared for the contractors and which they required them to sign bound them to pave the whole distance from Woodland Street to Fortythird Street. We can come to no other conclusion upon the evidence than that the parties to the contract acted in good faith. It seems to be highly probable that they were ignorant of the existence of the Act of July 18, 1863, which was a private act, and might therefore well be unknown to the parties, and which prohibited the opening of streets through the Hamilton Park grounds. And we are of opinion that the plaintiffs ought not to be prejudiced by this, but that in anticipation of it, is void under its provisions, and is to prevent a recovery by the party who has done the work upon the faith of it, especially in view of the fact that the majority allowed their selection to remain in full force, making no other selection, and permitting the work to proceed in accordance with the selection so made, when they might have revoked it at any time before the awarding of the contract. (Dickerson v. Peters, 21 P. F. Smith, 53.) It was further objected, that at the time when the ordinance authorizing the paving of Beckett Street was passed (April 13, 1869), and when the selection of the pavers was made by the majority of property owners, an ordinance then in force (that of June 12, 1868) required all streets which might be paved in West Philadelphia, where this paving was done, "to be laid with rubble pavement, or material to be approved by the chief Commissioners of Highways, which shall be of stone, irregular in shape, with depth from six to nine inches and length five to twelve inches," whereas this paving had been done with cobble stones. But the ordinance of June 12, Finally, it is further objected by the defendant, that there was no evidence that the contract had been approved by the city solicitor, or that the plaintiff's had advertised their proposals. There was no evidence on either side upon the subject. In the absence of evidence to the contrary, the public officers are presumed to have done their duty in these respects; and stabit præsumptio donec probetur in contrarium. We are relieved, therefore, from considering the question, whether a non-compliance with these directions of the city ordinances would have imperiled the plaintiffs' contract. Rule discharged, and judgment for the plaintiffs on the points reserved. The defendant thereupon took this writ, assigning for error, inter alia, the admission of the agreement of March 27, 1869, and the entry of judgment on the reserved points. Victor Guillou and Samuel Dickson, for plaintiff in error. This was a case depending wholly on the forms and requisites of the law, and before the plaintiffs can recover they must show a compliance with all the forms and conditions which the law imposes. City v. Lea, 5 Phila. R. 77. 1868, was repealed, so far as it related to Beck-missioner made the city contract with the plainett Street, by another ordinance, passed June 21, tiffs on the 24th of June, 1869. 1869, which was before the execution of the contract between the plaintiffs and the city, the contract being dated June 24, 1869. Now, the ordinance authorizing the paving did not require any particular kind of pavement to be laid. Under it the commissioner was authorized to contract for any kind of pavement which might be in accordance with the city ordinances upon the subject, and at the time he made the contract for the city with the plaintiffs the cobble-stone pavement was in accordance with the existing ordinances upon the subject. This is a sufficient answer to the objection that the kind of pavement required by law was changed subsequent to the passage of the ordinance authorizing the paving to be done. So far as the objection rests upon the fact that the kind of paving authorized by the city ordinance was changed by another ordinance passed subsequent to the selection of the pavers by the majority of the property owners, it is disposed of by the considerations already referred to. The selection made by the owners was allowed to remain in full force and unrevoked, notwithstanding the commissioner had been released by the ordinance of June 21, 1869, from the restrictions contained in the ordinance of June 12, 1868. It is argued, that the property owners might have selected other pavers, if they had foreseen that cobble pavement was to be used instead of rubble pavement. If so, then why did they not revoke their selection and make a new one before the city commissioner made the contract? They had plenty of time in which to do so, but they allowed their selection to stand, and there is no evidence whatever that they have ever objected to it, or have ever desired to be released from it, or have ever desired to depart from it or annul it, or that they now object to it. The objection now made is not made by the majority of the property owners, but by the defendant alone, and there is no reason to believe that they approve or adopt his objection. The instrument which is the evidence of the selection made by the majority of the property owners, if it indicates anything in respect to the kind of pavement to be used, plainly indicates that the cobble pavement was to be used, for the price fixed is the price for laying the cobble pavement, which, as is well known, is cheaper than the rubble pavement, and that is the price at which the city contracted with the plaintiffs, and for which the plaintiffs have obtained a verdict. It would seem that the property owners had anticipated the repeal of the ordinance of June 12, 1868, confining the commissioner to rubble pavements, otherwise they would not have fixed upon the price of cobble pavement. The ordinance was repealed on the 21st of June, 1869, and the com City v. Edwards, 2 WEEKLY NOTES, 102. The first requisite, then, is that the plaintiffs show themselves to have been selected as pavers by a "majority of the owners" on Beckett Street, from Woodland Street to Forty-third Street, as called for by the Ordinance of 13 April, 1869, authorizing this particular paving. To satisfy this requirement, they offered in evidence an agreement entered into with them by owners of property on Beckett Street, Woodland Street to a point four hundred and five feet west from Forty-second Street, to do the paving in front of the respective properties, not to pave the whole street. This paper is in no sense a proper selcetion under the Ordinance of 13 April, 1869, for that Ordinance authorizes the department of highways to contract with pavers "who shall be selected," while this agreement was entered into before the passage of that Ordinance. The rights of the minority can be taken away only sub modo, and this contract cannot bind the owners who never signed it, and never agreed that the work should be done. Moreover, when the Ordinance of 13 April, 1869, was passed, the Ordinance of 12 June, 1868, was in force, by which only rubble pavements could be laid in West Philadelphia. By this Ordinance the price of rubble pavement is fixed at $1.50, and that of cobble pavement at $1.25 per square yard. As then the signers of the agreement of March 27, 1869, contracted for pavement at $1.25, it is evident that they contracted for a cobble pavement, which was unlaw [SHARSWOOD, J. What do you say to the argument that it is essential that all the requisites of that Ordinance must be complied with, espe cially as to advertising ?] ful. The Ordinance of 13 April, 1869, taken | At all events the onus of showing the contrary with that of 12 June, 1868, authorized a rubble rested on the defendant. pavement only, so that it is clear that this paper cannot be evidence of a proper selection. It is true that an Ordinance was passed on June 21, 1869, repealing the Ordinance of 12 June, 1868, as far as regards this street, but can that repeal, made nearly three months after the passage of the ordinance of 13 April, 1869, make the paper of March 27, 1869, a proper evidence of a selection to lay the pavement authorized by the later Ordinance. The plaintiffs offered no evidence that they had properly advertised and performed the other requirements of the Ordinance of 31 December, 1862. Again, the contract of the plaintiffs with the highway department, to lay the pavement up to Forty-third Street, being in contravention of the Act of 18 July, 1863, supra, was void. The plaintiff's bound themselves thereby to pave up to Forty-Third Street, and nothing but a complete performance would be a satisfaction. The contract is an entire one, and entire performance must be proved. [AGNEW, C. J. If the city undertakes to contract contrary to law, is not the contract curtailed to that extent? SHARSWOOD, J. Do you undertake to lay it down as matter of law, that if a man undertakes to do a thing part of which is impossible, and he goes on and does that part which is possible, that he cannot recover for that?] Such is the result of the authorities if the contract be an entire one. Bills rendered for paving must be certified by the chief commissioner of highways (Ordinance of 30 August, 1868), and the sureties on a contract with the head of any city department must be approved by the city solicitor and councils. (Act of 21 April, 1855, § 20, P. L. 269.) W. H. Lex and H. M. Dechert, contra. It was the duty of the defendant to so frame his pleadings as to raise an issue which would compel the plaintiffs to prove these things. [SHARSWOOD, J. The plea was a general one, and put in issue the validity of the claim.] It was alleged that there was no selection by a majority of property owners. The plaintiffs produced a paper signed by such majority, and which he had submitted to the highway department. It is to be presumed that the minor directory provi sions of the Ordinance were complied with. [SHARSWOOD, J. There is one point which is not considered-the right of non-approving owners to receive public notice, so that they may come in and object. It is a question whether that is a mere directory provision. Those parties. have had no opportunity to be heard.] The chief commissioner of highways testified that he was satisfied with the work, and that covers the want of his certificate. The Act of 21 April, 1855, § 20, supra, refers only to new work to be done and paid for by the city. This contract was a severable one, because the price to be paid was clearly apportioned to different parts of the work. Cuningham v. Morrell, 10 Johnston, 203. May 8, 1876. THE COURT. An agreement To explain their default, the plaintiffs alleged was entered into on the 27th of March, 1869, that they were prevented from finishing their between a majority of the owners of property work by the Acts of Assembly forbidding streets on the portion of Beckett Street which was into be cut through the lands of the Hamilton Park tended to be improved, and Michael CunningAssociation; that is to say, they plead ignorance ham and Daniel McNichol, for paving that of the law. They and all other citizens are bound street from its intersection with Woodland to take notice of these Acts, for these are not Street to a point four hundred and five feet private, but are binding on the whole city. west of Forty-second Street, in the Twentyseventh Ward of Philadelphia. It was stipulated that the work was to be done "under the direction and to the satisfaction of the Chief Commissioner of the Highways," and was to be paid for at the rate of one dollar and twentyfive cents per square yard. When the agreement was executed, this work had not been authorized by the City Councils. On the 13th of April, 1869, an ordinance was passed, directing the department of highways "to enter into a contract with a competent paver or pavers selected by a majority of the owners of property fronting on Beckett Street, from Woodland Street to Forty-third Street, for the paving thereof;" and providing, as one of the conditions of the contract, that the cost of the work should be collected from the respective property The verdict shows a compliance by the plaintiffs with the terms of the city Ordinances then regulating paving. The plaintiffs produced a paper, signed admittedly by a majority of owners, selecting them as pavers. It is no objection that the paper was signed before the passage of the Ordinance. The provisions of the Ordinance of 31 December, 1862, are merely directory, and, the contract with the city being complete, it is to be presumed that the city officers did their duty. owners by the contractor or contractors. ordinance of the 12th of June, 1868, requiring the streets of West Philadelphia to be laid with rubble pavement only, was in force at the date of the agreement of the property owners with Cunningham and McNichol. And the same ordinance fixed the sum of one dollar and fifty cents per square yard as the charge for rubble pavement, and the sum of one dollar and twenty-five cents per square yard as the charge for cobble pavement. On the 21st of June, 1869, so much of the ordinance of the 12th of June 1868 as related to Beckett Street, from Woodland Street to Forty-third. Street, in the Twenty-seventh Ward, was repealed. And on the 24th of June, 1869, a contract was executed by Cunningham and McNichol "to pave Beckett Street, from Forty-third Street to Woodland Street," in accordance with "all the provisions of section third of the ordinance approved March 27th, 1868." Under this contract, the work contemplated by the agreement of the 27th of March, 1869, was done. That is, Beckett Street was paved from Woodland Street to a point four hundred and five feet west of Forty-second Street. It was shown on the trial that performance of the stipulation to pave the part of the street between the point last named and Forty-third Street was impossible, because, under the provisions of the two Acts of Assembly, passed respectively on the 18th of July, 1863, and the 17th of March, 1864, the lands of the Hamilton Park Association extended to hat point, and the opening of streets on those lands, while they should be used for park purposes, was forbidden. The fact that the work was satisfactorily done by the contractors, was established by the verdict of the jury. An legal plaintiff, a ratification by the proper au thorities of the action of the highway department. The existence of the Hamilton Park Acts of 1863 and 1864 was overlooked when the ordinance of the 13th of April, 1869, was passed, and when the contract for the paving was subsequently executed. The work of the contractors was stopped at the line of the property of the Park Association by the express provisions of a statute. They did all which they could lawfully do under the contract with the city, and they executed literally the agreement they had made with the property owners on Beckett Street. Rules in cases of this kind could easily be made. so rigid as to work injustice. In questions involving the liability of defendants for their proportions of the cost of municipal improvements, the relations between the city and the parties with whom they contract are ordinarily outside the line of legitimate inquiry. When such improvements are within what were the incorporated districts of the county of Philadelphia when the Act of the 19th of April, 1843, was passed, a defendant can "only deny that the work was done, or the materials furnished, or prove that the price charged was greater than their value, or that the amount claimed has been paid or released." Notwithstanding the doubt intimated by Mr. Justice WILLIAMS in Philadelphia v. Edwards (32 Legal Intell. 397; 2 WEEKLY NOTES, 102), that Act has constantly been recognized by this Court to be in force. It was recognized in the City v. Burgin (14 Wr. 539), and has been so expressly held, down to the decision of the City v. Brooke, in February last (33 Legal Intelligencer, 169; 2 WEEKLY NOTES, 537). Indeed, the terms of the 44th section of the Consolidation Act of February 2, 1854, scarcely leaves the question open to debate. Those terms are: "All Acts of the Legislature not inconsistent with this Act, now in force, shall continue in operation within the limits of the county, city, district, borough, or township, in which they are now operative, under the authority of the City Councils, Courts and officers created by this Act, or permitted to continue as consistent therewith, until such Acts shall be altered or repealed by the Legislature: Provided, That the City Councils shall have power, by ordinance, to extend the operation of laws now in force within the city, police or municipal districts, to other parts, or over the whole of the enlarged limits, and to declare what laws have become obselete by this Act, or by the extension as aforesaid of other laws." It has been uniformly held, that it is not competent for a defendant to raise questions relating to the former details of agreements between the city and its contractors, and to their execution and performance, where the acts of the municipal officers have been ratified, and the work Various questions growing out of alleged irregularities in the proceedings, which resulted in the execution of the contract, were raised on the trial in the District Court. Many of these related to formal omissions of acts prescribed by statute or ordinance, on the part of the city officers. It was complained, for instance, that the certificate of the commissioner was not affixed to the bill which was rendered when the work was completed, according to the provisions of the ordinance of the 30th of August, 1868. But the commissioner testified that he had supervised the paving during its progress, and had inspected and approved of it when finished. The omission of the approval of the sureties in the contract by the city solicitor as required by the 20th section of the Act of the 21st of April, 1855, was also made ground for complaint. But such approval is not directed to be endorsed, and the fact that the bill was certified by the surveyor and solicitor, would imply in this action, and in which the city has joined as the done by the contractors has been accepted. (City | application of the maxim omnia præsumuntur v. Wistar, 11 Casey, 427; City v. Burgin, supra; rite esse acta, for that principle heals only appaand Hutchinson v. Pittsburgh, 22 P. F. S. 320.) rent irregularities or omissions, where jurisdicOther deficiencies, however, are developed in tion or power over the subject-matter is clearly this record which have more significance. The vested: (SUARSWOOD, J., in Pittsburgh v. Walter, ordinance of the 31st of December, 1862, is in 19 P. F. S. 365.) The irregularities here upthese words: "Hereafter, before any contract for turn the very foundation of the jurisdiction. paving any street or streets, shall be entered into In view of the good faith in which the conby the highway department, the person or per- tract was entered into, and with which the work sons applying for such contract shall give notice has been done by the contractors, it has been of such application in two daily papers having with reluctance that this conclusion has been the largest circulation by three consecutive inser- reached. But this is not a question between the tions, at least two weeks prior to the making of city and the contractors, nor between the contracsuch application, such notice to set forth: 1. The tors and the property owners who employed them. name of the contractor or contractors; 2. The lo- It arises between the city and the defendant. The cality of the space or spaces intended to be paved, latter had assumed no duty expressly, or by imwith the length of each space in linear feet; 3. plication. He can be made subject to a legal The name and residence of each person signing obligation only where the power conferred on for contractor, together with the number of feet the municipal authorities has been legally exerowned or represented by each person so signing cised. Like The City v. Lea (5 Phila. 77), this fronting on said street or streets; 4. To such is "a case depending wholly on the forms and notice shall be added an invitation to the owners of requisitions of law, and in no degree on consent property to meet at the department of highways, or contract, in which one of the forms, one at a certain hour on a given day, to show cause, if any, why such contract should not be awarded to the applicant." No evidence was given by either party on the trial on the subject of notice by these contractors. If the proceeding had been in other respects regular, the plaintiff's could rest on the presumption that the municipal officers had performed the duties imposed by law upon them. But while the contractors held the agreement of the 27th of March, 1869, and while the ordinance authorizing the paving of Beckett Street had been passed on the 13th of April, 1869, yet the agreement stipulated for the cost of a cobble pavement, and no power to lay any other than a rubble pavement in West Philadelphia was conferred by Councils until the 21st of June, 1869. The contract was made on the 24th of June, 1869. There was thus an interval of just three days between the grant of authority [Cf. Wistar v. City of Philadelphia, ante, 124; City to lay a cobble pavement, and the execution of to use, etc.. v. Patterson, post, 273.] the contract in pursuance of the grant. Of course two weeks' notice of the application of the contractors for the work that was actually done was physically impossible. Let it be presumed that some notice was published, as required by the ordinance of 1862. If it described the work as a cobble pavement, the defendant was not bound by it, for such a pavement was prohibited by the ordinance of the 12th of June, 1868. If the notice described the work as a rubble pavement, the defendant could not be required to pay for that which was actually laid, for that was a cobble pavement. The facts prove affirmatively that the legal requisites of such a contract between the city and the contractors, as would create an obligation on the defendant to pay, were not fulfilled. There is no room for the of the conditions which the law itself has imposed, is wholly wanting." It is within the principle of the City v. Reilly (10 P. F. S. 467), of the City v. Stewart (1 WEEKLY NOTES, 242), and of Pittsburgh v. Walker, supra. The city could have waived irregularities and defects of form. The property owners who entered into the agreement with the contractors, by leaving the authority they had conferred unrevoked, could not make those irregularities and defects subjects of complaint. But jurisdiction over the defendant and his property could be obtained only by pursuing rules prescribed by law, and the record proves that these rules could not possibly have been observed. The judgment is reversed. Opinion by WOODWARD, J. WILLIAMS, J., absent. Oct. and Nov. '76, 36. Oct. 11. Manufacturers' and Merchants' Insurance Co. v. Fire insurance-Execution clause in policy A clause in a policy of fire insurance provided as follows: "This policy shall cease at and from the time that the property hereby insured shall be levied on or in law or equity." A mechanics' lien was filed against taken into possession or custody under any proceeding the house insured, judgment obtained, and a writ of levari facias placed in the sheriff's hands. Just before |