acknowledgment, or any coercion on the part of her husband prior thereto. The substance of what she says is that she did not receive any money; that her husband told her to sign the release, and that it would be all right. It is true that the learned auditor finds that her husband told her that if she did not sign it "she must look out for herself." In this the auditor made a mistake. The words referred to had reference to a deed of thirty acres of land her husband desired to convey, and not to this release. Mrs. Powell took the release to the justice, unaccompanied by her husband, and executed and acknowledged it in the presence of the former. The justice was examined, and testified that she acknowledged the release voluntarily, and that when he commenced to explain to her the contents of the paper she interrupted him, and stated she understood it, that it was a release of her dower. Mrs. Powell does not essentially contradict him otherwise than by the convenient "I don't know." There is not a scintilla of evidence to show fraud or coercion on the part of her husband, yet, if Mrs. Powell is believed, there was no consideration for the release. There certainly is no proof she ever received the $1,500, and the auditor does not find she intended it as a gift. We must therefore hold the release invalid as to her husband. Is it so as to his judg-Smith, 206; Bachman v. Killinger, 5 Id., 414. ment creditors?

enable her to continue her operations with her separate estate so long as they were profitable, and then make reprisals for her losses upon those who had trusted her: Brown's Appeal, 13 Norris, 362, distinctly recognized this principle. There a married woman who held a judgment against certain real estate agreed in writing that the lien of her judgment should be postponed to the lien of a subsequent judgment. After the money had been loaned on the faith of her agreement, she attempted to repudiate it on the ground of her coverture. This court held that, as she had the absolute control of her judgment, could satisfy of her own will, she could also postpone; and as an innocent party had acted upon the faith of her conduct, she was estopped from claiming a first lien.

Whe think it very clear that so for as such creditors have loaned their money upon the faith of the release, they are entitled to priority over Mrs. Powell in the distribution of this fund. It is true a judgment creditor stands upon the foot of his debtor so far as title is concerned, but this rule has no application where a third person has misled the creditor as to the condition of the title, and thereby induced him to lend his money on the faith of it. Samuel McCreery had actual knowledge of the release and took one of his judgments and loaned the money on the faith of it. As to him Mrs. Powell is estopped from setting up her release. It is true she was a married woman, and the general rule undoubtedly is that the doctrine of estoppel does not apply to such persons. But there are exceptions. The rule rests upon the fact that a married woman cannot contract. It follows logically that what she cannot pass by contract she may not pass by estoppel. But when the law clothes her with the power to contract, to the extent of that power she is bound precisely as other persons are bound. The law gives her the right to dispose of her personal estate with the assent of her husband. In doing so she has no more right to injure and mislead others than if she were sui juris. To hold otherwise would

It does not appear that any of the other creditors loaned their money upon the faith of the release, or that they had knowledge of it. Not having been duly acknowledged it must be treated as an unrecorded paper. Hence no question arises as to constructive notice to the creditors, and actual notice is not pretended.

We see no error in the refusal of the court below to allow interest on Mrs. Powell's claim. The authorities cited by him are sufficient to sustain his ruling. See May v. May, 12 P. F.

The decree is affirmed, and the appeals dismissed at the costs of the respective appellants. For appellants, Messrs. Brewer & Winger. Contra, J. McD. Sharpe, Esq.

JAMES BRYAR et ux., in Right of the Wife, Plaintiffs Below, v. JOHN W. BECKETT et al.

Where one purchases land with knowledge of a secret
equity in a third person, he may perfect his title by
outstanding liens, and the fact that he had knowledge
of the equity does not affect his title derived from a
sale upon the liens purchased. Upon purchasing such
liens he stands in the shoes of the lien creditor.
One who purchases land at an assignee's sale, subject to
existing mortgages, is not bound to pay them off un-
less he expressly or by implication agrees to do so, and
may secure his own title by purchasing them and pro-
ceeding to perfect his title under them.

Error to the Court of Common Pleas, No. 1, of Allegheny county.

This was an action of ejectment brought to recover the undivided half of a lot of seven acres in the Twenty-first ward, Pittsburgh. Both parties claim title through James McElroy, who died about 1837, intestate, leaving seven children, of whom Jane Bryar was one. In 1850 proceedings in partition were commenced in the Orphans' Court to divide the real estate of James McElroy. Purpart No. 6, containing seven acres and being the property

a deed to her for the undivided half. This decree was appealed from to the Circuit Court. Wm. B. Rodgers, as the attorney for Camp

the mortgages already mentioned, issued execution, sold the seven acres at sheriff's sale and bought the same for $50. The deed was made by the sheriff to Wm. B. Rodgers, who gave a memorandum to Campbell, stating that he would convey to any one Campbell might wish, when requested so to do.

It was not disputed that Wm. B. Rodgers bought and held in trust for Campbell whatever title he obtained by the sheriff's deed.

The court charged peremptorily for the defendants.

in dispute, was chosen by John McElroy and allotted to him by the court. Jane Bryar under the partition proceedings was entitled to receive $2,528.73. For this sum Jane Bryar gave a re-bell, then purchased the judgments obtained on ceipt to S. B. McElroy and a release to that amount for the owelty, payable by S. B. McElroy in the partition proceedings. The receipt was given in March, 1852. John McElroy, by deed dated June 10, 1856, conveyed purpart No. 6, the property in dispute, to S. B. McElroy and James Bryar, husband of Jane Bryar. It appears that S. B. McElroy had not paid his sister wholly in money, the amount for which she had given a receipt and release, but that the payment had been made partly by a note drawn by Eliza McElroy which was not paid. Finding that his sister Eliza was unable to pay the note, and desiring to secure Jane Bryar, S. B. McElroy suggested that Jane should take his undivided interest in purpart No. 6, in lieu of the note. To this she consented, and through her husband delivered the note of Eliza to S. B. McElroy, who in return executed and delivered a deed for his undivided one-half interest in purpart No. 6; not, however, to Jane Bryar, but to her husband James. The surrender of the note was the consideration of the deed, and it is alleged to have been the intention to have had the deed made to Jane Bryar, and that the conveyance to her husband was a mistake. Within a year or so after the conveyance of S. B. McElroy, Bryar informed his wife that the deed had been made to him and was recorded,

at which time she desired to have the title in

herself, but the correction was never made. In 1874 James Bryar executed two mortgages on the property in dispute, one to Thomas McClintock for $3,000, the other to E. R. James for

$2,000, and in 1878 the mortgages were foreclosed and judgment entered.

In January, 1877, James Bryar was adjudged a bankrupt, and the register in bankruptcy

conveyed the property in dispute to Robert Arthurs, his assignee. The assignee proceeded to sell the interest of James Bryar in the seven acres in question, subject to the two mortgages heretofore mentioned, and conveyed the property to Thomas Campbell.

Prior to the sale a bill in equity had been filed by James Bryar, asking the court to restrain the assignee from exercising control over her interest in the seven acres, of which proceeding Campbell had notice. The bill was afterwards amended. Jane Bryar was decreed to be the equitable owner of the undivided onehalf of the seven acres that Thomas Campbell received a conveyance thereof and held subject to the rights of Jane Bryar, and that he made

The position taken by the plaintiffs in error was that the undivided one-half, having been purchased with the money of Jane Bryar and conveyed to her husband by mistake, was held by him in trust for her, and Campbell having had notice of this equity took subject to it, and that the title obtained through the sheriff was void.

For plaintiffs in error, Messrs. John N. Mc-
Clowry, S. H. Geyer and A. N. Sutton.
Contra, Messrs. Rodgers & Oliver and Thos.
M. Marshall.

PER CURIAM. Filed November 14, 1881.

and James on the premises were valid liens, The fact that the mortgages of McClintock notice of the secret equity of Mrs. Bryar was unand the mortgagees entirely unaffected by any lowed that whether Campbell had notice or not disputed, and the consequence necessarily folhe stood in their shoes when he purchased the title derived from them. It is contended, however, that Campbell having bought at the assignee's sale, subject to these mortgages, was bound to pay them off, and when he did so they were extinguished. But unless he expressly or

by necessary implication agreed to pay them he

was not bound to do so, and had an undoubted
right to secure his own title by purchasing
them and proceeding to perfect his title under
them.
Judgment affirmed.

HEMPHILL'S APPEAL.
ROBERT W. HEMPHILL, Defendant Below, v.
THE COMMONWEALTH ex rel.

No indictment or proceedings thereon can be removed from the Quarter Sessions to the Supreme Court, by either certiorari or writ of error, without a special allowance, either by the Supreme Court or one of the judges thereof.

Appeal and writ of error to the Court of Quarter Sessions of Allegheny county.

To settle the discussion was the object of the appeal in this case, but no special allocatur having been obtained as required by the Act of March 31, 1860, the vexed question still remains. For appellant, W. C. Moreland, Esq. Contra, Messrs. G. W. McLean and Robb & intoxicating liquors are sold without license, or

common, ill-governed, and disorderly house or the subject. It was for selling liquor on Sunplace, to the encouragement of idleness, gaming,| day in violation of the laws of the Commonor drinking or other misbehavior, to the com- wealth. There is no warrant in the section mon nuisance and disturbance of the neigh- above quoted, or in any other Act of Assembly, borhood, or orderly citizens:" Act of 31st for councils to pass an ordinance authorizing March, 1860, 42. The gist of the offense of the Mayor to try and fine persons for offenses keeping a "disorderly house," is the nuisance simply because they are "contrary to the laws and disturbance to the neighborhood. Selling of this Commonwealth." There is no ordiliquor on Sunday and keeping a bawdy-house, nance of the city against selling liquor on Sunare distinct offenses and indictable as such. day. This ordinance only declares that the They are not legally and technically "disor- houses where "intoxicating liquors are sold, derly houses." It may not be improper in the without license or contrary to the laws of this ordinance to designate all the classes of houses Commonwealth," shall be deemed and held referred to as disorderly houses; but the infor- "disorderly houses," and the persons keeping mation and conviction should show the actual them be punished for keeping disorderly houses. character of the house. But, as just stated, the conviction is not for a violation of a city ordinance, but for a violation of the laws of the Commonwealth.

The judgment of the Mayor in this case must therefore be reversed.

The second case before us stands on a different footing, for here there is express legislative authority.

In the first of these cases the information was for selling spirituous and mault liquors on Sunday, and the conviction was for the same. The information was headed, "1. Keeping a disorderly house, and 2. Keeping a bawdy-house." The information, however, charged only the keeping of a common bawdy-house. On the back of that information, the conviction as drawn out, is, that the said Samuel Morgan is Section 8 of the Act of 1867 gives the councils "convicted of the offense charged upon him by power, inter alia, to pass ordinances "to supthe said information." But in the return to press and restrain disorderly houses, houses of the certiorari as signed by the Mayor, it is, that ill-fame, etc." The power to "suppress and rehe "is convicted of the said offense charged strain" is ample to justify a fine. Section 13 of against him, viz., keeping a disorderly house." that act authorized councils to pass ordinances This, however, must be understood, in view of "not inconsistent with the laws of the State, for the information, that the conviction was keep-carrying into effect or discharging the powers ing a bawdy-house, but, under the evidence, by and duties conferred, or required under this the name of disorderly house. act." And by section 8 of the Act of 1st April, 1868, the Mayor was vested with power to try and fine, and in default of payment, imprison.

The questions then are, Can the Mayor convict and fine, and in default of payment, imprison, for (1) selling liquor on Sunday, and (2) for keeping a bawdy-house?

Selling liquor on Sunday "is contrary to the laws of this Commonwealth," and, in that sense, comes under the terms of the ordinance. But councils can pass no such ordinance unless authorized by Act of Assembly.

The authority for this part of the ordinance is claimed under section 12 of the Act of 6th April, 1867, which provides that the councils shall have power "to regulate taverns and all other houses for public entertainment, ale and porter shops, and houses and other places for habitual resort for the purpose of tippling or intemperance."

The power to " 'regulate" taverns, etc., does not confer upon councils full legislative power to pass any ordinance they may deem proper on the subject. The police powers thus granted must be in subordination to the laws of the Commonwealth. Besides, the fine in this case was not for the violation of any ordinance on

It is contended, however, that the conviction in this case was illegal for two reasons: (1) That the ordinance was invalid, being “inconsistent with the laws of the State," in this, that it provides for the Mayor convicting and punishing by a fine for an offense made indictable and triable in the Quarter Sessions. And (2) It is unconstitutional in depriving a party of trial by jury.

The fact that keeping a bawdy-house is an indictable offense under the laws of the State does not prevent all police regulations on the subject. "Where the act is, in its nature, one which constitutes two offenses, one against the State and one against the municipal government, the latter may be constitutionally authorized to punish it, though it be also an offense under the State law: Dillon on Munic. Corp., p. 367 (3d Ed.) The same principle is laid down by Cooley on Cons. Lim., p. 199. "The same act may constitute an offense both against the State and the municipal corporation, and

both may punish it without violation of any and imprisonment for two years. For the ofconstitutional principle."

"If a statute so authorize, it is not apparent why a city corporation may not impose a special penalty for an act done against it, while the State imposes also a penalty for an act done against it. It is so where an act is in violation of the laws of both the United States and a State:" Bishop on Crim. Law.

It would be impossible in large cities to preserve order and do many things necessary for the peace and good morals of the city, if in every case "it were a necessary preliminary that the offender should be regularly prosecuted by indictment." "It has always been understood that under the police power, persons disturbing the public peace, persons guilty of a nuisance, etc., may be summarily arrested and fined without any infraction of the judicial power, strictly as such. Such punishment does not wipe out all responsibility for the offense to the dignity and sovereignty of the State:" Nolin v. Mayor, 17 Md., 331; Brownsville v. Cook, 4 Neb., 101. The city authorities, when authorized by statute, may pass ordinances and impose fines for keeping bawdy-houses: McAlister v. Clark, 33 Conn.,

91.

fense against the city, a fine not exceeding $100 and no imprisonment, unless the fine is not paid, and then only for sixty days.

This view of the case disposes of the second objection, that the act is unconstitutional, because it deprives the accused of trial by jury.

The plaintiff in error was not convicted of the criminal offense of keeping a bawdy-house, but of a violation of a city ordinance, in keeping such a house. He was not sentenced to pay a fine or undergo imprisonment for the criminal offense. He was found guilty of violating the ordinance, and for that offense was adjudged to pay a fine of $50, and in default of payment, be imprisoned thirty days.

There are ordinances relating to nuisances, disorderly conduct, obstructions on the streets, and for the protection of the health and safety of the citizens, which invole penalties for of fenses that are indictable at law. These are all based on the police powers granted to the city. If this Act of Assembly should be declared unconstitutional, because there is no jury trial, many of those ordinances would have to fall for the same reason.

I regard this ordinance simply as a police re

Assembly, "to suppress and restrain" houses of ill-fame, and one that is eminently wise and proper, and if not absolutely necessary, for the morals and good order of the city. If it cannot be sustained I can hardly see what ordinance could be passed that would be of any avail in suppressing this great evil.

Bawdy-houses are public nuisances, and in-gulation, under the power granted in the Act of dictable as such, both at common law and under our Code. Keeping such a house is an offense against the State, because of its immoral and pernicious character. But in large cities they are more than a public nuisance, in that sense. They are festering sores in the municipality. They not only corrupt public morals, but they are hatching-nests and nurseries of all kinds of crimes and disorders, which disturb neighborhoods, violate the police regulations for order, and entail a heavy expense upon the municipal government. The evil is so great and contagious that it cannot be suppressed by the slow process of indictment in the Quarter Sessions. If they are to be suppressed at all, or kept within any restraints, it must be by police regulations and the police authorities of the city.

Concurring opinion by EWING, P. J.

I concur in the decision as to the judgments to be entered on the records in these cases.

In my opinion the Acts of Assembly are broad enough to authorize the city to pass an ordinance making it an offense against the city to maintain a place for the illicit sale of liquors. I have no doubt of the authority of the Legislature to pass an act giving such power to the city, and to authorize a summary conviction therefor as an offense against the city, in addition to the misdemeanor against the Commonwealth punishable on indictment. It is immaterial what name may be given to the offense. A place where illicit liquor selling is habitually carried on is so uniformly detrimental to peace and good order that it seems to me that it might properly

The authority given by Act of Assembly to the city authorities, "to suppress and restrain houses of ill-fame," is simply a police authority. The State does not delegate to the city her power to punish for the crime of keeping a bawdyhouse. She holds the act of keeping such a house an offense against the peace and dignity of the Commonwealth, and punishable in the Quarter Sessions. But in addition to that punish-be named in the ordinance as a disorderly house. ment, for the offense against the State, she gives the city power to punish for the offense against the municipality. For the offense against the For the Commonwealth, Messrs. A. L. PearState the punishment may be a fine of $1,000 | son and W. C. Moreland.

For plaintiff in error, Messrs. Thos. M. Marshall and Alfred Kerr.