notions of the people (James v. Com., 12 Serg. & R. 220). "Every country," says Tilghman, C. J., in Guardians of the Poor v. Greene, 5 Bin. 554, "has its common law. Ours is composed partly of the common law of England and partly of our own usages. When our ancestors emigrated from England they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be unsuitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, until at length, before the time of the Revolution, we had formed a system of our own, founded in general on the English constitution, but not without considerable variations." From the earliest days of the province, as we have thus seen, the failure to appear after due service of a summons has been treated as a contempt of the process of the court, and the dilatory and cumbrous methods of outlawry and distress to avoid the technical necessity of an appearance have been discarded in favor of the shorter, simpler, and more effective remedy of judgment for the default, apparently originating in usage, the fountain of common law, sanctioned by frequent statutory recognition, and extended in its operation from time to time by judicial application. An instance of such judicial extension is found in the adoption of the equity rules by this court in 1865, whereby subpoenas to appear were abolished, and in their place was substituted the service of a copy of the bill, with a notice indorsed thereon to appear, and that on failure to do so a decree pro confesso might be entered thereon for the default. And a still more recent instance is to be found in Longwell v. Hartwell, 164 Pa. St. 533, 30 Atl. 495, where is was held that judgment might be entered by default for want of appearance against a garnishee, although the statute makes no express provision for any such judgment. We therefore conclude that the practice is entitled to recognition as an integral part of the common law of the state. It is true, we have found no precedents in the quarter sessions or in criminal cases, but, as indictments against corporations were even rarer in early times than they are now, the absence of reported decisions is not conclusive against the practice; and, as both the object sought and the technical objection to be avoided are the same, and as in misdemeanors, where the personal presence of the defendant is not necessary, the application of the remedy is equally convenient and effective, we see no good reason why the same remedy should not apply in one case as in the other. The order efusing judgment is reversed, and judgment directed to be entered against the defendant by default for want of appearance.

NOTE. I am under obligations in this case to a supplemental brief prepared by John Douglass Brown, Jr., Esq., of the Philadelphia bar.

COMMONWEALTH v. WILKES BARRE & E. R. CO.

(Supreme Court of Pennsylvania. Jan. 7, 1895.)

Appeal from court of quarter sessions, Luzerne county.

The Wilkes Barre & Eastern Railroad Company was indicted for maintaining a nuisance. Motion for judgment by default was denied, and the common wealth appeals. Reversed.

John M. Garman, Dist. Atty., and C. Frank Bohan, for the Commonwealth. Wheaton, Darling & Woodward, for appellee.

MITCHELL, J. For the reasons given in Com. v. Railroad Co., 30 Atl. 836 (opinion filed herewith), the order refusing judgment is reversed, and judgment directed to be entered against the defendant by default for want of appearance.

EJECTMENT-DIRECTING VERDICT-RESULTING

TRUST-WHAT CONSTITUTES.

1. In ejectment, where one of defendants claims title by reason of a resulting trust in her favor, it is sufficient reason for directing a verdict for plaintiff that the evidence of the trust is "too loose," and the court "could not support a verdict on such evidence if rendered,' and that, "if it was a question before the court sitting as a chancellor in a proceeding in equity, it would be the duty of the court to decide against defendants."

2. Where a wife pays part of the purchase money for land deeded to her husband, it is not necessary, to the existence of a resulting trust in her favor, that her money should go "into the land at the inception of the husband's title" by actual payment at that time, but it is sufficient if it be paid as installments or incumbrances fall due, pursuant to a contract under which the title is acquired, and on agreement that she is to recover title to so much as she pays for.

Appeal from court of common pleas, Butler county.

Action of ejectment by John K. Gilchrist, guardian, against Matthew J. Brown and Mary M. Brown. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendants appeal. Affirmed.

Lev. McQuistion and J. C. Vanderlin, for appellants. Newton Black and George W. Fleeger, for appellee.

WILLIAMS, J. This action was brought by a purchaser at sheriff's sale to obtain possession of a farm bought by him under a judgment against Matthew J. Brown. No question is raised over the regularity of the proceeding or the validity of the sheriff's sale. On the contrary, it is conceded that the purchaser acquired the title of the defendant. The defense set up relates to an undivided three-fifths of the farm, which, it is alleged, Mary M. Brown, wife of Matthew J. Brown, is entitled to under a resulting trust originating in 1868. The facts relied upon to raise the resulting trust are as follows: Brown was the owner, in 1868, of a farm, on which

he resided, containing 37 acres. Margaret E. Christie owned another farm in the same region, containing 100 acres. For their mutual benefit, an exchange of these farms was agreed upon, the difference in value to be left to three men selected by the parties to determine, and to be paid by Brown to Margaret Christie so as to meet the liens resting on her farm. In pursuance of this agreement the three appraisers valued the Christie farm at $1.875, and the Brown farm at $1,200. This left a difference of $675 to be paid to Margaret E. Christie in money. Deeds were exchanged in October, 1868, and Brown assumed the payment of the judgments against the Christie farm, amounting to $432.14, and gave his bond to Miss Christie for $242.86, to make up the full sum of $675, the difference between the appraised values of the two farms. Mrs. Brown alleges-and it does not seem to be seriously controverted-that she furnished the money to pay the judgments and the balance due to Miss Christie from her separate estate. This she claims she did upon an agreement that she was to have an interest in the land corresponding to the part of the whole price paid by her. By virtue of this agreement and the payment of the $675 of the purchase money, she contends that her husband became a trustee for her as to such part of the title as was paid for with her money. The learned judge, after having heard the testimony, was of opinion that the evidence in support of the alleged contract was wholly insufficient to justify a chancellor in sustaining a verdict in its favor. He said, speaking of the evidence, on this subject: "It is too loose, and we could not support a verdict upon such evidence if rendered. If it was a question before the court sitting as chancellor in a proceeding in equity, it would be the duty of the court to decide against the defendants." This was a sufficient reason for withdrawing the case from the jury and directing their verdict. The answers to points become, therefore, practically unimportant, since the case turned upon the sufficiency of the proofs to justify the submission of the existence or effect of the alleged contract. If this was not so, several of the assignments of error would require us to reverse this judgment. The answers to the first and second of the plaintiff's points require qualification, for as they stand they would be misleading. It is not necessary that the money of the wife should have gone "into the land at the inception of the husband's title" by an actual payment of it at that date. It is enough if it be paid as installments or incumbrances fall due, provided such payments are made in pursuance of the contract under which the title was acquired, and upon the agreement that she is to recover the title to so much as she pays for in exchange for her money. The same error runs through the answers to other points, particularly that to the defendants' fourth point. This point asked an instruction upon the sufficiency of certain assumed facts to raise a resulting trust.

The answer was in these words: "This is not affirmed unless the jury also find that the money, or some of it, was actually paid in consideration of the land at the inception of the title, and the other, or remainder, was actually set apart at the time for the purpose of paying for land." This would be understood as an instruction that payments of purchase money, made subsequently to the date of the contract, although in strict compliance with its terms, would not support a resulting trust, no matter how clear and distinct the agree ment might be that she should be treated as a purchaser to the extent of the money furnished by her. If the case had gone to the jury, the instruction could have been successfully complained of.

The fifteenth assignment raises a question that has no practical importance in this case. If the testimony of Brown and his wife had been submitted to the jury, it would have been important that the jury should know whether they were to be treated by them as one or as two witnesses; but, as the testimony of both of them was, in the judgment of the learned judge, too loose, indefinite, and unsatisfactory to sustain a verdict, and was for this reason withheld from the jury, the question played no part in the determination of this case in the court below, and in this court it is a question in thesi merely.

The last assignment alleges error in the withdrawal of the case from the jury. We cannot sustain this assignment. The judge was, as to the question of the existence of the resulting trust, a chancellor. If the evidence was, in his judgment, insufficient to sustain a verdict, it was his duty to withhold it from the jury. Reno v. Moss, 120 Pa. St. 67, 13 Atl. 716; Wylie v. Mansley, 132 Pa. St. 65, 18 Atl. 1092. In such case it becomes unneces sary to answer points asking instructions to the jury, since the case does not go to them. It is enough if the judge puts upon the record his reasons for refusing to submit the case to the jury, so that they may be reviewed by this court. That was done in this case. We are satisfied with the reasons given, and upon that ground the judgment is affirmed.

DUBOIS CEMETERY CO. v. GRIFFIN et al.

(Supreme Court of Pennsylvania. Jan. 7. 1895.)

ALLEYS-DEDICATION AND ACCEPTANCE- DeedsCEMETERY.

1. Where one opens an alley through his land, fences it off, declares his purpose to estab lish it for public use, and applies to the municipal authorities to put and keep it in order, and they thereafter do the work on it, there is a dedication and acceptance for public use.

2. Where one, after laying out a cemetery. conveys adjoining land by deed calling for the line of the cemetery as a boundary, and then lays off an alley along and on that side of the cemetery immediately adjoining the original line of the cemetery, and then conveys the cemetery with a call for the alley as a boundary, both

deeds are consistent with the claim that the alley was a public alley.

3. Act April 5, 1849, declaring it unlawful to open a public street or alley through a cemetery, does not prevent one who has laid out a cemetery from dedicating a strip along the edge of it, which he still owns, for a public alley; it not having the effect of abridging or interfering with the rights of parties to whom lots had already been sold.

4. Nor does that act give to a cemetery company, acquiring land separated from the cemetery by a public alley, the right to close it.

Appeal from court of common pleas, Clearfield county; David L. Krebs, Judge.

Suit by the Dubois Cemetery Company against G. L. Griffin, burgess, and J. F. Brady and others, members of the town council of Dubois borough, to enjoin the opening of an alley. Decree for defendants, and plaintiff appeals. Reversed.

Thomas H. Murray, for appellant. Allison O. Smith and Geo. A. Lukehart, for appellees.

MCCOLLUM, J. If John Rumbarger, in the exercise of his lawful right, laid out and opened on the strip of land in dispute a street or alley for public use, and the municipality accepted and maintained it for the use to which he dedicated it, no one will contend that he could thereafter exclude the public from it, and appropriate it to a use destructive of or inconsistent with the dedication. What he could not do in this respect the appellant cannot do, because it has no greater right in the alley than he had after the dedication and acceptance. Its rights in the subject of this litigation are such as its grantors acquired by the deed of April 26, 1890, from Rumbarger's executor, and the deed of May 15, 1890, from Henry Prothero. These rights, by virtue of their deed of August 7, 1890, passed to the appellant; but, as the grantors owned 48/50 of the capital stock of the corporation, there is no room for a contention that the grantee has rights in the disputed territory which they did not have under the above-mentioned deeds to them. The boundaries called for by the deed of April 26th and the deed of May 15th are in exact accord with the appellees' contention. The former calls for an alley on the northern side of the cemetery plot between Main street and State street, over the land in dispute; and the latter adopts the description in the deed of May 25, 1880, from Rumbarger to W. N. Prothero, who conveyed to Henry Prothero on the 28th of March, 1881. This description does not include any portion of the cemetery lot, but it makes a line of that lot a boundary of the Prothero lot. This boundary is where the rail fence was when the deed was made to W. N. Prothero, and is 25 feet from the picket fence afterwards built by Rumbarger. The strip of land between this boundary and the picket fence is not included in Rumbarger's deed to Prothero, or in his executor's deed to the appellant's grantors. These deeds, however, are consistent with the claim that it is a public street or alley. It seems to us, there

fore, that the controlling questions are whether there was a dedication of it to public use by Rumbarger, and, if so, whether there was an acceptance of such dedication by the municipality. The learned court below, in an opinion manifestly founded upon a careful consideration of the testimony and the law applicable to it, answered these questions affirmatively. In the findings and conclusions in reference to the dedication and acceptance of the alley the court disagreed with the master, and it is urged that the findings of the latter should prevail, on the ground that he bad better opportunity to judge of the credibility of the witnesses and the weight of the testimony than was allowed to the former. The disagreement between the court and the master on the fundamental question in the case was this: The master thought that the acts and declarations of Rumbarger, as relat ed by the defendants' witnesses, were not sufficient to establish a dedication, while the court thought they were sufficient for that purpose, and called for a finding that a dedication was made as claimed. It will thus be seen that the disagreement related to the ef fect of the acts and declarations, and did not involve the question whether the acts were performed and the declarations were made is alleged. We think it will be conceded that the court was quite as competent to pass upon their effect as the master was. The next disagreement we note between the court and master, on an important question in the case, relates to the alleged acceptance of the alley by the municipality. The master thought "the weight of the evidence" showed that there was no acceptance, while the court thought the acceptance of it was established "by the preponderance of the testimony in the case before the master." We have carefully examined and considered all the evidence affecting these disagreements, and are convinced that the findings of the court in reference to the dedication of the alley by Rumbarger and the acceptance of it by the municipality are warranted and sustained by the decided preponderance of it. We do not deem it necessary to embody the evidence or any part of it in this opinion. It consists of the declarations of Rumbarger showing his purpose to establish on the land now in dispute a street or alley for public use, of his acts in execution of his purpose, and of the acts of the municipal authorities evincing their acceptance of the alley for the use to which he dedicated it. That Rumbarger opened an alley upon the land in dispute, at least seven years before his executor conreyed the cemetery property to the appellant, appears to be conceded; and the principal contention of the latter in reference to it is that he opened it for his own convenience, or for the convenience of the persons to whom he might sell lots adjoining it, and not for public use. But this contention is sufficiently answered, we think, by his declarations from time to time showing his purpose in es

tablishing it, and by his applications to the borough authorities to put and keep it in or der. It is manifest, from what he said and did, that after it was opened he considered he had no further control of it, and that the duty of maintaining it was on the borough. The work upon it from that time until it was closed by the appellant was done by the borough, and this is sufficient evidence of an ac ceptance of it by the latter as a public alley or street. For the reasons stated by the learned judge of the court below we concur in his conclusion that Rumbarger's dedication of the alley to public use was not an abridgment of or interference with the rights of the parties to whom he had sold lots in the ceme tery, nor in violation of Act April 5, 1849, which declares that "it shall not be lawful to open any street, lane, alley, or public road through any burial ground or cemetery within this commonwealth." In accordance with the views we have expressed, we overrule the specifications of error, and hold that the appellant cannot close the alley, dedicated and accepted as aforesaid, against the appellees or the public. Decree affirmed, and appeal dismissed, at the cost of the appellant.

BARTLEY et al. v. PHILLIPS. (Supreme Court of Pennsylvania. Jan. 7, 1895.) EJECTMENT-COMPULSORY NONSUIT-EVIDENCE.

1. In ejectment by grantees in an unexpired oil lease, where plaintiffs deny intention to abandon it, and prove the lease to them and entry under it, and the putting down of a well, and defendant admits title in the lessor, the fact that plaintiffs also give evidence of abandonment of their possession will not support a compulsory nonsuit.

2. In ejectment by grantees in an oil lease, which provides that the lessees shall begin work within 30 days, and that the work, when commenced, shall be prosecuted with due diligence until completion or abandonment, but which does not define due diligence, parol evidence of the agreement of the parties as to due diligence and abandonment is admissible.

3. In ejectment by grantees in an oil lease against a mere squatter, where plaintiffs establish a prima facie case, defendant cannot avail himself of plaintiffs' want of due diligence in prosecuting work, as required by the lease, and abandonment.

Appeal from court of common pleas, Butler county; John M. Greer, Judge.

Action of ejectment by W. E. Bartley and others against Thomas W. Phillips and W. V. Hardman to recover possession of premises leased to plaintiffs by J. A. Hartzell for oil purposes. Defendant Hardman filed a disclaimer. From a judgment of compulsory nonsuit, plaintiffs appeal. Reversed.

The lease held by the plaintiffs was for the term of 10 years, from September 8, 1888. By the terms of the contract, the plaintiffs were to commence operations for mining purposes within 30 days from the execution of the lease, and, when work was commenced, it was to be prosecuted with due diligence until

completion or abandonment. The plaintiffs commenced operations upon the land within 15 days after the execution of the lease, and drilled a well, finishing it the latter part of October, 1888, at an expense of from $2,500 to $3,000. The well was a failure. The plaintiffs then, in January or February, 1889, took their materials off the property.

Lev. McQuistion, W. A. Forquer, and T. C. Campbell, for appellants. Clarence Walker and Thompson & Son, for appellee.

MITCHELL, J. Plaintiffs offered in evidence their abstract, whereupon defendants admitted title in Hartzell. Plaintiffs then proved the lease by Hartzell to them, their entry under it, and the putting down of one well. They thus made out a complete prima facie case, which called on defendants to show a better title. But it is said, and the court below appears to have adopted this view, that plaintiffs went further, and gave evidence of an abandonment of their possession. This, however, will not support a compulsory nonsuit. Abandonment is a mixed question of acts and intention, and therefore is ordinarily for the jury, and there is nothing in this case to take it out of the rule, for the abandonment was denied in plaintiffs' ab stract, and was therefore incumbent on defendants to prove before they could avail themselves of it. Whether the evidence on the part of plaintiffs showed an abandonment by them did not depend exclusively on the length of time that operations had ceased, but also on the intention, and that again was largely dependent on the agreement and understanding of the parties. The plaintiffs denied the intention, and the court, therefore, could not declare the abandonment as a matter of law, but should have left it as a fact to the jury.

The plaintiffs further offered evidence by Burton and Hartzell to show the agreement of the parties as to due diligence and abandonment. This should have been admitted. It was not in any sense an attempt to modify or alter a written contract. The lease provided that the work, when commenced, should "be prosecuted with due diligence until completion or abandonment"; but what should constitute due diligence was a question of fact, on which the parties might agree, either at the time or afterwards, and, if they did, then neither court nor jury had any right to adopt a different standard. If due diligence had been defined in the writing, no pre tense of such right could have been set up. But parol proof of the understanding and agreement of both parties was just as effective as a writing, for it went not to a construction of the paper, but to the definition of a fact referred to. Whether any such understanding not expressed in the paper would affect others, subsequently acquiring rights from one of the parties, without notice, we need not consider, for there is no evidence

that any such others are before us. was not allowed to get that far.

The case

But the nonsuit was erroneous for another reason. Even if there had been a want of due diligence and an abandonment by plaintiffs, no one could take advantage of it but the lessor or one succeeding to his rights, and there was no such party yet in the case. So far as the evidence showed, defendants had neither Hartzell's title nor any other beyond that of mere squatters. As against them, plaintiffs, as already shown, had made out a prima facie case. The error of the appellees, and apparently of the court below, was in regarding the estate of plaintiffs under the lease as terminated ipso facto by the failure in diligence or the abandonment. But it required the act of the lessor. Repeated decisions of this court, from Wills v. Gas Co., 130 Pa. St. 222, 18 Atl. 721, to Cochran v. Pew, 159 Pa. St. 184, 28 Atl. 219, have established that the clause of forfeiture or termination of the estate is for his benefit, and no act of the lessee can produce that result without his concurrence. Still less can any action of a stranger enforce it. As against any but the grantor, an abandonment is not complete until the statutory period of limitation, or the end of the term granted, and possession may be resumed by the grantee at any time previous. There is nothing in the cases citedMunroe v. Armstrong, 96 Pa. St. 307, and Oil Co. v. Fretts, 152 Pa. St. 451, 25 Atl. 732-in conflict with these views. In the former the lessor had expressly declared the forfeiture, and made a new lease to the plaintiff; and in the latter he had asserted it by implication by a new lease to parties who defended under his title. But it is said that appellees here defend under Hartzell's title, and that their ab stract shows the fact. The abstract, however, was not in evidence, as it should have been if relied on for affirmative proof. The practice in the analogous case of statements and affidavits of defense which, under rule of court, are to be taken as admissions of all material facts not denied therein, is shown in Neely v. Bair, 144 Pa. St. 250, 22 Atl. 673. The respective abstracts of title in ejectment filed by the parties under the rule of court in the present case stand upon the same basis, having the same object, as stated by the present chief justice in Neely v. Bair,-to narrow the trial down to material matters which are really disputed. The defendants may be in possession under Hartzell's title, and the case therefore analogous to Oil Co. v. Fretts, but it has not yet been shown to be so. The issue was determined prematurely. Judg ment reversed, and procedendo awarded.

CAMERON v. COY. (Supreme Court of Pennsylvania. Jan. 7, 1895.) ESTOPPEL-ACCEPTANCE OF BENEFITS.

The owner of land, who had a son and three daughters, devised it to the son in fee,

and directed that if either the son or M., a daughter, should die, "leaving no issue," the three survivors of the four should share equally. M. released to the son her interest, after which he died without issue. The orphans' court sold the land as a fee simple, and the sisters accepted part of the purchase money. Held, that the sisters were estopped to question the purchaser's title.

Appeal from court of common pleas, Indiana county.

Amicable action in assumpsit by John G. Cameron against George A. Coy on a contract for the sale of certain real estate by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The land in question was previously owned by James Simpson, who devised it to his son, Hugh, and other land to his daughter Martha. He died leaving Hugh, Martha, and two other married daughters surviving him. On the death of Hugh without issue, the land was sold to plaintiff by the orphans' court to make assets. Defendant claimed that plaintiff did not have, and could not convey, a feesimple title.

J N. Banks, for appellant. J. N. Langham, for appellee.

MITCHELL, J. The rule which was adopted by our earlier cases from the English authorities, and perhaps may still be called the general rule, is that the words, "die without leaving issue," presumably refer to an indefinite failure of issue, but this presumption will yield to a contrary intent apparent from the whole will. Middleswarth's Adm'r v. Blackmore, 74 Pa. St. 414. And this court has frequently said, with great emphasis, that it is the testator's actual intent that must govern, and where that is clear all technical rules of construction must give way to it. Reck's Appeal, 78 Pa. St. 435; Woelpper's Appeal, 126 Pa. St. 562, 17 Atl. 870. The testator here devised to his son, Hugh, describing no estate, and therefore, under the statute, giving him a fee. But in a later part of the will he declared that "if either Hugh or Martha should die, leaving no issue, then their estates shall descend, equal shares alike, to the two married sisters and Hugh or Martha, or survivors; that is, the three survivors of the four shall have equal shares, alike, of said estate or estates." If it were open to question here, there would not be much difficulty in reaching the conclusion that the testator had in mind a definite failure of issue, to wit, at the time of Hugh's or Martha's death, and that upon the happening of such contingency, by the death of Hugh, his estate was defeated by the coming into existence of the devise over to the three surviving sisters. But there is no one entitled to raise that question. During the lifetime of Hugh, Martha released to him all her interest in the land. The devise, as to her third, therefore, united with his estate, whatever that may have been. The devise, as to the other two-thirds, remained in the other sisters; but when Hugh