On motion, the President appointed the following committee on resolutions: M. Swartzwelder, W. D. Moore, H. H. McCormick, Jacob H. Miller, A. McBride, C. S. Fetterman and J. H. Hampton. The committee reported the following minute for the action of the meeting: As fellow-members of this Bar we deeply deplore and lament the sudden and premature death of our young brother in the profession, CHARLES W. COLLIER. While death is the inevitable common lot, and brings with it to the surviving friends grief and lamentation, yet when it falls upon the worthy young man fully equipped for the struggle of life, and just entering upon his career full of promise and of just hope, our sorrow Action of the Allegheny County Bar on the Death of and lamentations assume almost the character of repinCharles W. Collier, Esq. A meeting of the Bar of this county was held on Monday last, in the Court of Common Pleas, No. 1, to take appropriate action on the death of CHARLES W. COLLIER, Esq., which occurred on Saturday last. The meeting was called to order by the Hon. C. S. FETTERMAN, who moved the election of the Hon. E. H. STOWE, President Judge of the Court of Common Pleas, No. 1, as President. Judge STOWE, on taking the chair, said: GENTLEMEN:-It is entirely unneccessary to mention the cause that has brought us together this morning. You are all aware that it is the death of our friend, and your fellow-member of the Bar, CHARLES W. COLLIER, I do not know that I can say anything to give force to a meeting of this kind. You all know the vigorous health, the young athletic manhood of the deceased, and you have all felt as I have the shock caused by hearing of the sudden, and until within a very few days, unanticipated | death, of a man of so much vigor and promise of life. We are in the habit of saying, on occasions of this kind, that it is another warning. Surely this is, at least to the older members of the Bar, an occasion when, if we ever do pause to think of futurity, we ought to stop and consider where and what we are. How long will it be ere the inevitable summons comes to us? If the sons-if our sons-our children are so suddenly stricken down, should not we, their fathers, expect soon to follow them. This son has gone in the early dawn of manhood. The father, in the full maturity of life, bowed with grief, still remains, and yet he and I and all of you here are going rapidly and inevitably in the same direction, and the question will, on such an occasion as this, force itself upon us, how long till our time comes? And while I will not now seek even to "point a moral" by a more particular reference to the deceased, yet when we look back two or three weeks and recall him so young and ing and murmuring at the behests of "Him who doeth all things well." Our lamented young brother, born, bred and educated in our midst. the son of a judge, surrounded by a legal atmosphere, naturally became the adopted child of the law, and if in the providence of God he had been permitted to remain with us, the mature man would have entirely fulfilled the early promise of his youth. His intellectual and moral character were in perfect harmony; logical, clear in his perception, sound in judgment and honest in his convictions, he pursued his profession with high purposes, disdaining all mean ends. CHARLES COLLIER Could not think an unworthy thought or do a dishonorable act. To those who loved and mourn him, and all who knew him do so, we extend our profoundest sympathy, and rejoice with them that his life leaves nothing to regret but its early termination, and will forever be a sacred and cherished memory. After remarks by W. D. Moore, Jacob H. Miller, R. B. Carnahan, C. E. Cornelius, Jacob F. Slagle, D. F. Patterson, W. D. Porter, Judge White, Judge Over, J. McF. Carpenter and T. M. Marshall, the minute was unanimously adopted. It was also resolved that the action of the meeting be suitably engrossed and a copy be presented to the parents and one to the wife of the deceased, and that the members of the Bar attend the funeral in a body. THE Bar of Philadelphia county have tendered a banquet to Chief Justice SHARSWOOD on his retirement from the Supreme Court, and he has accepted the invitation. The Albany Law Journal last week paid the following high tribute to his ability: "The legal profession all over the country will note with regret the apearnest,―surrounded by all that could make life enjoya-proaching retirement of Chief Justice SHARSble, and see him now ready for the grave, the contrast is one that not only gives us the greatest sorrow, WOOD, of Pennsylvania. This gentleman has for many years been one of the most admirable of American judges. The books are full of his but makes us feel deeply the uncertainty and the worthlessness, in one sense, of earthly anticipations. The other officers were: Vice-Presidents-J. | learning, and the dignity, purity and moderaH. Bailey, J. W. F. White, J. M. Kirkpatrick, Thos. Ewing, W. G. Hawkins and J. W. Over, Judges of the county courts. Secretaries—W. D. Porter, C. C. Montooth, J. O. Petty, T. D. Carnahan, Marshall H. McGeary and John M. Goehring. tion of his character have lent weight to his opinions. His name, cherished in his own State, will always be among the foremost of that great line of judges who have made the jurisprudence of Pennsylvania respected and potential both at home and abroad." Supreme Court, Penn’a. GEORGE E. PEEBLES and WIFE v. THE A payment of taxes is not compulsory, when it is not made under any duress of person or goods, or under any impending danger of seizure or sale of property; or where, before a warrant directing a levy can be issued, the party against whom the tax is charged is entitled to a day in court. notices of a similar character from the treasurer and solicitor of the city. The plaintiffs, believing the assessment was illegal, paid installments amounting to $6,316 with a distinct declaration that the same were paid under protest, and with notice that if plaintiffs were not legally liable to pay the same they would seek to recover them back. The solicitor for the city assented to the proposition that if there was no legal liability to pay the assessment, the money could be recovered back from the city. Afterwards, in the case of Seely v. City of Pitts Where there is a compulsion actual, present, potential in inducing the payment by force of process available for instant seizure of person or property, and the de-burgh, 1 Norris, 360, the Supreme Court, reversmand is really illegal, there the party by giving notice of the illegality and his involuntary payment can recover back the money so paid. Where the payment is voluntary, as in this case, a protest with notice of an intent to reclaim is not sufficient to sustain a recovery. The voluntary character of the A protest is of no avail except in the case of payment The cases of the Borough of Allentown v. Saeger, 8 Harris, Error to the Court of Common Pleas, No. 1, of Allegheny county. The plaintiffs were owners of a tract of rural property fronting on Penn avenue for a distance of 1,400 feet just within the city limits of Pittsburgh. Under the Act of Assembly, known as "the Penn Avenue Act," approved April 2, 1870, this avenue, without the co-operation of the plaintiffs in any respect, was improved and the entire costs thereof was assessed equally per front foot upon the property abutting upon said avenue. | ing the court below, held that "the mode of assessing the costs cannot be applied when the street improvement is made through rural or suburban districts, and the Act of April 2, 1870, in so far as it applies this mode of assessment to such districts is unconstitutional." At trial by the court-a jury being dispensed with-it was admitted that the character of the plaintiffs' property brought it fully within the protection of the rule in Seely v. City of Pittsburgh. The court found the facts substantially as above stated, and ordered that judgment be entered in favor of the defendant. Plaintiffs filed exceptions to the conclusions of law; the exceptions were overruled, and the plaintiff's took a writ of error. For plaintiffs in error, Wm. P. Elliott, Esq. Opinion by GREEN, J. Filed October 25, 1882. The assessment against the plaintiffs could only be collected adversely by means of a proceeding in the courts. It was payable in installments, and if these were not paid within thirty days after they became due, the city attorney was to file a claim for the same in the District Court in the same manner as mechanics' liens are filed, and a writ of scire facias and levari When the improvement was completed per-facias might issue thereon as in case of meemptory notice was given the plaintiffs, by the | chanics' liens. Of course, in such a proceeding city treasurer, of the special assessment against them, amounting to $13,582.32, with interest at 7 per cent.; that the first installment, $3,359.76, was due, and if not paid within thirty days a lien for the whole assessment would be filed against their property. Subsequently a notice, partly in writing and partly in print, from the city attorney notified the plaintiff's that said installment had been left with him for collection, stating that “unless immediate payment is made it will become my duty to collect the same by process of law within thirty days. You will avoid trouble and expense by attending to the matter at once." All the installments sued for were paid after the person assessed would be accorded every possible opportunity to appear and interpose all objections to the recovery of the money. In the present case notice of filing the assessment with the city treasurer was given to Mr. Peebles by that officer, and demands were made for the payment of several installments, accompained with the statement that unless they were paid they would be collected by process of law. These demands were made by the city attorney, in whose hands the claims had been placed for collection. The plaintiffs allege, and the court has found, that in consequence of these demands they paid several assessments protesting that they were not legally liable to pay the same and would seek to recover back the money. The court also finds that the plaintiff's believed the assessment to be illegal and void at the time the installments were paid, and further, that the city solicitor assented to the proposition that if there was no legal liability to pay the assessment the money could be recovered back from the city. is called on peremptorily to pay upon such a warrant, and he can save himself in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and not voluntarily and maintain an action to recover it back: 17 Mass. 461; 12 Pick. 13." The foregoing extract expresses the whole law applicable to this case. Where there is compulsion actual, In such circumstances can the plaintiff's re- present, potential in inducing the payment by cover? We think not. The reason is that the force of process available for instant seizure of payments were not compulsory. They were person or property, and the demand is really not made under any duress of person or goods, illegal, there the party by giving notice of the or under any impending danger of seizure or illegality and of his involuntary payment can sale of property. No warrant or other process recover back the money so paid in an action had been issued directing a levy upon any prop- brought for that purpose. Where the payment erty, nor had any right been acquired to issue | is voluntary, as in this case, a protest with notice such process. Before such a right could possibly of an intent to reclaim is not sufficient to sustain be obtained, the plaintiffs were entitled to a day a recovery. The voluntary character of the in court, to be heard in opposition to the claim, payment still remains, notwithstanding the to have the adjudication of the regularly consti- notice, and is fatal to the action. The element tuted courts of the Commonwealth, including of coercion is essential to the right. Thus, in the court of last resort on writ of error. The Dillon on Municipal Corporations, Sec. 940, one plaintiff's believed, at the time the installments of the requisites to the right of recovery is thus were paid, that the assessment was wholly void, described: "The payment by the plaintiff must and the Act of Assembly under which it was have been made upon compulsion to prevent laid unjust and unconstitutional. There was, the immediate seizure of his goods or the arrest therefore, no mistake, either of fact or law, un- of the person, and not voluntarily. Unless these der the influence of which the money was paid. conditions concur, paying under protest will not A payment in such circumstances is a voluntary give a right of recovery." In the case of Taylor payment and cannot be recovered back, and v. The Board of Health, 7 Cas., 73, it was said, this has been many times held. The doctrine in the opinion of this court, on page 75: "We is fully set forth in Hospital v. Philadelphia state the case as one of a voluntary payment of County, 12 Harris, 229, one of the cases relied taxes, because there is no pretense that the deupon by the plaintiffs. On page 231, LOWRIE, fendant's officers did any more than demand J., said: "A voluntary payment of money un- the tax under a supposed authority of the law, der a claim of right cannot, in general, be re- and this is no more a compulsion than when covered back; but it has been held that when a an individual demands a supposed right. The party is compelled by duress of his person or threat that is supposed to underlie such demands goods to pay money for which he is not liable, is a legally harmless one; that in case of refusal, it is not voluntary but compulsory; and he may the appropriate legal remedies will be resorted rescue himself from such duress by payment of to." Neither this case nor the case of Borough the money, and afterwards, on proof of the fact, of Allentown v. Saeger, 8 Harris, 421, decides recover it back: Astley v. Reynolds, 2 Str., 916; that a mere protest and notice, where the pay12 Pick. 13. But the threat of a distress for ment is voluntary, will confer a right of rerent is not such duress, because the party may covery. In the latter case the money was paid replevy the goods distrained, and try the ques- to an ordinary tax collector who, it must be tion of liability at law: Knibbs v. Hale, 1 Esp. supposed, was armed with a warrant in the Rep., 84. The threat of legal process is not such usual manner. In McCrickart v. City of Pittsduress, for the party may plead and make proof, burgh, 7 Norris, 133, the question was not raised. and show that he is not liable: Brown v. Mc- The payment was purely voluntary, and the Kinally, 1 Esp. Rep., 279. But the warrant to decision was put upon that ground. We have a collector, under a statute for the collection of not been referred to any case, and we know of taxes, is in the nature of an execution running none, in which upon the question being directly against the person and property of the party, raised, it has been held, that where the payment upon which he has no day in court, no oppor- was entirely voluntary a right to recover back tunity to plead and offer proof, and have a judi- the money paid was created by a protest and cial decision of the question of his liability. notice of an intent to reclaim. On the contrary, Where, therefore, a party not liable to taxation | it has been frequently, and by different courts decided, that such a notice and protest are not sufficient to give a right of reclamation where the payment was voluntary, the point being directly under consideration. The following are some of the cases: Commissioners v. Walker, 8 Kansas, 431; Railroad v. Commissioners, 98 U. S. Rep., 541, per WAITE, C. J.; Forbes v. Appleton, 5 Cush., 115; Patterson v. Cox, 25 Ind., 261. ing the illegal demand, he may give notice that Orphans' Court. In Re Application of M. K. MOORHEAD. The Act of March 29, 1832, P. L., 191, gave to the Orphans' Court jurisdiction over minor children of living, as well as of dead parents. The grant of the power to care for the persons of infants, under that act, carried with it every incident necessary to effectuate that care. As a general rule the surviving parent is entitled to the custody of the persons of his children; his right is the result of a natural, and is recognized by the civil, law; and where there is a natural guardian jurisdiction of the Orphans' Court can only be called into action in favor of infants, by such guardian's inability, refusal or neglect to perform his duties in accordance with the best interests of such infants. that it is for the best interest and benefit of the minor children that they should be under his care, and when this presumption is overcome by evidence, which must be clear and satisfactory, that it is not for the best interest of the infant that it should be in the custody of the father, the parental right is stricken down. A sense of parental duty ought to withhold a parent from pressing his claim to the custody of a child whenever the true interest of the child forbids it. And whenever this parental obligation fails to influence the conduct of the parent the principles of our law authorize the courts to interpose in behalf of the child. In Shane v. City of St. Paul, 10 Reporter, 368, the court say: "The payment, therefore, was a voluntary one unless the protest which accompanied it gave it a different character. This it could not do. If in fact the party was under no duress, restraint or compulsion, when he made it, it cannot be said that he acted under the influence of any coercion in making it, because he accompanied the act with a written or verbal protest. A protest is of no avail except in the case of payment made under duress or coercion, and then only as evidence tending to show that the alleged payment was the result of duress: McMillen v. Richards, 9 Cal., 417." In the case of Railroad v. Commissioners, supra, Chief Justice WAITE, after stating the rule substantially as above, added, on page 544: "This, The parental right is founded upon the presumption as we understand it, is a correct statement of the rule of the common law. There are, no doubt, cases to be found in which the language of the court, if separated from the facts of the particular case under consideration, would seem to imply that a protest alone was sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to the other attending circumstances." This observation is applicable to many of the cases cited by the learned counsel for the plaintiff. It is worthy of remark that in the case just referred to the claim paid was for taxes and the treasurer had in his hands at the time a warrant which would have authorized him to seize the goods of the company to enforce the collection, and the warrant was in the nature of an execution running against the property. When the company paid the tax claimed they filed with the treasurer a written protest alleging the illegality of the tax, and giving notice that suit would be brought to recover back the money paid. Notwithstanding all this, it was held that no recovery could be had, because in fact no attempt had been made to put the warrant in force. The Chief Justice quotes, with approbation, the language of Chief Justice SHAW, in Preston v. Boston, 12 Pick., 14, stating the rule thus: "When, therefore, a party not liable to taxation is called upon peremptorily to pay upon such a warrant, and he can save himself in no other way than by pay Such custody is referable to its interest and welfare, The reason must be strong and cogent to justify a court Opinion by OVER, J. Filed November 15, 1882. To sustain the second averment evidence was offered, and admitted under objections, to show | home, where every want would be supplied, unkind treatment by the respondent of his wife. Whilst, if this fact were established, it by no means follows that the respondent is to be deprived of the custody of his minor children; yet as such evidence throws light on his disposition and temper in the family relations, and tends to make up his domestic character, it is certainly entitled to some weight in determining the question at issue. This evidence shows that the respondent swore at his wife once through the telephone, at another time at his own house in the presence of a visitor, using very vulgar | language, and on another occasion in a railway car in the hearing of at least one passenger. That when his last child was but three days old, at the breakfast table he conducted himself, without provocation, towards Mrs. Moorhead in a most ungentlemanly manner, and profanely expressed his wish that she should leave the house, and then went from the dining-room into his wife's chamber in an excited manner and told her that he had ordered her mother out of the house, and that she would have to choose between them, causing her to burst into tears. And when this child was but eight weeks old he had some disagreement with his wife, and as the witness expressed it, "banged the door against her arm," inflicting a painful | if not a serious injury to her arm and wrist. To support the second averment evidence was also offered showing that on three or four occasions he chastised his son Maxwell in a manner which was perhaps violent and which certainly deserves to be condemned. This evidence shows that the respondent has a violent temper which he has failed to control, especially on occasions when it would be most expected he should. And whilst this is not a sufficient reason to deprive him of the custody of his children, it is entitled to some weight in determining the question. The next inquiry is, Does the welfare and best interests of these children require that they should be under the care of their maternal gandmother, Mrs. Moorhead? Their mother was her only child. Her relations with her daughter and them were of the most intimate and affectionate nature. The eldest child was born at her house and remained with its parents there for a year after its birth. Since her daughter's death, with the consent and approbation of the respondent, she has taken the place of a mother to them. That she is entirely competent to train and watch over them, and would do so with a mother's love, is beyond doubt. With her a most comfortable | and affectionate care are certain. Why, then, should they be deprived of such a home and such care during the helplessness of their infancy; and what will be the care and home they will have if removed from her custody? The respondent intended to commit them to the care of Mrs. May, who had been their nurse prior to their mother's death and since. She, no doubt, is a very competent nurse. But the contradictions of her testimony and her evident desire to shield the respondent do not commend her as a suitable person to be placed in the position of a mother to these children. Since the filing of this petition the respondent's sister, Mrs. Scott, has concluded that she can devote some time to assist in taking care of them. She is a widow and has a family of three children, and is engaged in business in the city. His mother, who has not been in good health and who is sixty-two years of age, has also concluded that she can devote her time to them. Both of them refused to take charge of the children prior to the filing of the petition. Surely, the affection which required the stimulous of this unhappy legal contest to cause them to come to this conclusion would not supply the affectionate care which the children are certain to receive from Mrs. Moorhead. This much as to the care, what as to the home? The respondent has been a willing pensioner on the bounty of Mr. Moorhead ever since his marriage. He has had situations procured for him by Mr. Moorhead's influence, in which he received from twelve to fifteen hundred dollars per annum, and yet it does not appear that he has ever contributed a penny to the support of his wife and children, except to pay a year's rent of a house at Shady Side. His estate, aside from his interest in his deceased wife's estate and six acres of land given him by Mr. Moorhead, amounts to little. And although Mr. Moorhead paid, after his marriage, $40,000 of his indebtedness, he is still involved in some debt. Judging from the past, there is but little hope that he would maintain these children in the future out of his own estate, or by his exertions. There can then be no doubt that they are more certain of a comfortable home with Mrs. Moorhead than with the respondent. It being so manifestly for the best interests and welfare of these minors to remain under the care of Mrs. Moorhead, why should the respondent object? The proposition of the petitioner was and is to keep both him and his children, that they should make their home with him. The only reason he gives, which is at all worthy of considera |