tion is that he cannot live happily with Mr. and Mrs. Moorhead, and that he does not wish to be separated from his children. If he cannot live happily with them, he has himself alone to blame, as they have treated him with great kindness and generosity, which he has returned with ingratitude. But a conversation which he had with Mr. Moorhead, in which he stated that if Mr. M. did not lease him some property he would take the children away where neither Mr. Moorhead nor his wife would see them, raises at least a strong suspicion that one purpose which he had in view is mercenary. This threat certainly shows that the respondent does not have a proper conception of the parental rights and duties. Then taking into consideration the facts already discussed, in connection with the light thrown on respondent's character by his own testimony, which shows his base ingratitude and extreme selfishness, and the fact that his own evidence to a great extent is contradicted by reputable witnesses, I am led to the conclusion that the welfare and best interests of these children strongly require that they should be under the care of Mrs. Moorhead. We then have on the one side the welfare and best interests of these children, and on the other the respondent, who alleges that he is prompted by his great affection for them and desire for their welfare to assert his parental right to their custody. But conceding that he has all the affection for them he claims to have, what is to be said of that affection which does not prompt the father | to act for the welfare and best interests of his children? It is certainly very selfish, and not entitled to much consideration. And in Mullin v. The People, 25 Wendell, 104, it was said that "the right of the father to the custody of his child is not absolute. Such custody is referrable to its interest and welfare, and is to be selected by the court in the exercise of a sound judicial discretion irrespective of the claims of either parent. *** A sense of parental duty ought even to withhold a parent from pressing his or her claims to the custody of a child whenever the true interests of such child forbid it. And whenever this parental obligation fails to influence the conduct of the parent, it is fortunate that the enlightened principles of our law authorize the courts to interpose in behalf of the child.” This doctrine is certainly very applicable to this case. The reason must be strong and cogent to justify a court in depriving a father of the custody of his child: Henson v. Watts, 40 Indiana, 172. But as I am of the opinion that such reasons exist in this case, my conclusion is that Mrs. Moorhead should be appointed guardian of the persons of these minors. And now, to wit, November 15, 1882, this matter came on to be heard at this term, and the court having inquired into all the circumstances and heard the parties, through their counsel, do order, adjudge and decree, first, that Mrs. M. K. Moorhead be and is hereby appointed guardian of the persons of Maxwell K., Marie and W. H. Watt, minor children of John W. Watt and of Jennie, his wife, now deceased, and that said John W. Watt shall have free access to them until further orders. Second, That the Safe Deposit Company of Pittsburgh be and it is hereby appointed guardian of the estates of said minors. Per Curiam. Opinion by HAWKINS, P. J. Filed November 15, 1882. Now, as to the legal principles applicable to this case. The text-books and the authorities all agree that the father is entitled to the custody of his minor children, because the law presumes it to be for their interest and benefit that they should be under his care. The parental right, then, is founded on this presumption, and when it 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. This appears to be the doc-educate his children: Heineman's Appeal, 28 trine of the American cases and some of the English. Lord ELDON said, in Lyons v. Blenkins, Jacobs' Rep., 262: "It is always a delicate thing for the court to interfere against the parental authority, yet we know that the court will do it in cases where the parent is capriciously interfering in what is clearly for their benefit." It must be assumed to be the general rule that a 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. This much was conceded at the argument of this case. But it is also true that his right grows out of his obligation to maintain and PITTSBURGH LEGAL JOURNAL, 171; and is a trust for their benefit-not a right to be used for his own selfish purposes: 2 Kent, 205; Story's Eq., Sec. 1343. The preservation of rights growing out of this relation has given rise to an important and difficult branch of the jurisdiction of this court. There are two acts in force upon which this jurisdiction is based. The 5th see tion of the Act of 29th March, 1832, P. L. 191, provides in general terms that "the Orphans' Court of each county shall have the care of the minors resident within such county." The jurisdiction here conferred obviously embraces minor children of living, as well as of dead parents. But the reasons for its exercise necessarily vary with the fact whether or not infants have a natural guardian of their persons. When there is a natural guardian jurisdiction can only be called into action in favor of such guardian by unjustifiable interference with his right; and 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: Heineman's Appeal, supra; Commonwealth v. Addicks, 5 Binny, 520; 2 S. & R., 274; Ex parte Crown, 4 Wharton, 11; Smith v. Smith, 6 Greenleaf. The 3d section of the Act of May 4, 1855, P. L., 435, simply declares, what was law be-deprived of the benefit of these advantages? fore, that a father's custody of his children may be taken away because of neglect or refusal to provide for them. | and proper; and nothing has occurred since, so far as Mrs. Moorhead is concerned, which would justify the recision of such an order. It is well settled that a father may emancipate his child for its benefit, wholly from his authority; if he may emancipate wholly, he may partially: Cor| nell's Appeal, 14 Pa. St., 384; McCloskey v. Cypher, 27 Id., 225. The commitment of the care of these children to Mrs. Moorhead was in accordance with their best interests in every aspect. At common law a wife's rights were, as a general rule, subordinated to the husband, but even there the contests between them for the custody of their children of tender years, her superior right was conceded on the ground of the childrens' advantage. In Mrs. Moorhead these children will have a mother's love and care. Why should they be John W. Watt can offer no equivalent. That care which is prompted by either a litigious spirit or mercenary motives is not worthy of a moment's consideration in comparison with that which Mrs. Moorhead can give. (2.) John W. Watt has neglected or refused The powers here given are those of a court of equity; and having been invoked in this case, it became a duty to investigate the circumstances and act according to a sound discretion: | to provide for his family, and threatened to exHeineman's Appeal, supra. The grant of the power to care for the persons of infants carried with it every incident necessary to effectuate that care. The question arising out of the circumstances of this case is whether the custody of the infant | children of John W. and Jennie Watt shall remain with Mrs. M. K. Moorhead, or be transferred wholly to John W. Watt? I am of opinion that the best interests of these children require that they shall remain with Mrs. Moorhead, and for these reasons: tort money through his children, and is therefore unfit to have their custody. He was a willing pensioner on the bounty of Mr. Moorhead from the time of his marriage. It will not do for him to impute this bounty as Mr. Moorhead's fault and his own justification. Mr. Moorhead could but respond to the "cries and tears" of his daughter for help. These "cries and tears" of the daughter to the father would not have arisen had the husband not previously failed to answer the wife's. Courts are bound to consider the motives of those claiming the custody of infants when brought to their notice, and will not permit its jurisdiction to be made an instrument to promote selfish purposes. Guardianship is a trust to be used for the benefit of the infant-not as a means of extortion for the benefit of the guardian. (1.) They are of tender years and have been tenderly nurtured, and therefore require the tenderest care. This care Mrs. Moorhead can give better than any one else, because of her irreproachable character, her close relationship to them, and her intimate association with, and care of, them from their births. That Mrs. Watt confided them to her mother's care on her death (3.) The status of John W. Watt as a witness bed is of itself strongly persuasive evidence of in this case would be alone sufficient to justify her peculiar fitness for such costody. Mr. Watt refusal to commit the custody of these children impliedly ratified this choice and recognized to him. He is contradicted by so many witMrs. Moorhead's peculiar fitness by his commit-nesses in so many and essential particulars, and ment of the custody of his children to her on his wife's death, and they are now there because of his confidence. Had Mrs. Moorhead and Mr. Watt united in asking this court's ratification of their arrangement as to the custody of his children, there is no apparent reason why it should not have been ratified as eminently fit his testimony is so inconsistent with itself that just grounds of suspicion are aroused as to his moral responsibility, and therefore of his unfitness to have the care of his children. There can be no mistake in trusting their moral training to Mrs. Moorhead. While, for the foregoing reasons, I am of opinion that the custody of these children should remain with Mrs. Moorhead, it must be understood that John W. Watt shall have free access to them. There is no reason so far as he is concerned, unless he has a consciousness of wrongs done by him to them, he should not accept Mr. and Mrs. Moorhead's offer of a home. Appeal. Decree affirmed and appeal dismissed at the costs of the appellants. Error to C. C. P., No. 1, of Allegheny Co.-Nixon v. MeCreery. Judgment reversed and procedendo awarded. Certiorari to C. C. P., No. 2, of Allegheny Co.-Tuigg's Appeal. Appeal quashed. Error to C. C. P., No. 2, of Allegheny Co.-Tuigg v. Sheehan. Judgment reversed. Certiorari to O. C. of Allegheny Co.-Bryan's Appeal. For the petition, Messrs. S. Schoyer, Jr., Ken- Decree reversed and petition dismissed at costs of the nedy & Doty and Clinton Lloyd. For respondent, Messrs. Hampton & Dalzell. SUPREME COURT JUDGMENTS. The court met in Philadelphia on Monday, the 20th inst., all the justices present, when the following judgments were entered: PER CURIAM: Appeal from C. C. P., No. 1, of Allegheny Co.-Braddock Ferry Company's. Decree affirmed and appeal dismissed at the costs of the appellant. Robbin's. Decree affirmed and appeal dismissed at the costs of the appellant. Neel's. Decree affirmed and appeal dismissed at the costs of the appellants. Certiorari to C. C. P., No, 1, of Allegheny Co.-Lacy's Appeal. Decree affirmed and appeal dismissed at costs of appellants. Error to C. C. P., No. 2, of Allegheny Co.-Commonwealth v. Cullen. Judgment affirmed, and appeal dismissed at the costs of the appellants. Murphy v. Kelly. This case is ordered to be reargued. Smith v. McGinty. Judgment affirmed. BY SHARSWOOD, C. J.: Error to C. C. P., No. 1, of Allegheny Co.-Union Savings Bank v. Fife. Judgment reversed and v. f. d. n. awarded. Error to O. T. of Allegheny Co.-Abernethy v. Com'th. Error to C. C. P., No. 1, of Allegheny Co.-Borough of n. awarded. Same v. Matthews. Judgment reversed and v. f. d. n. awarded. Stewart v. The Allegheny Na tional Bank. Judgment reversed and v. f. d. n. awarded. Union Insurance Company v. City of Allegheny. Judgment affirmed. SHARSWOOD, C. J., and GORDON and TRUNKEY, JJ., dissent. Error to C. C. P., No. 2, of Allegheny Co.-Lupton et al. v. Moore & Riley. Judgment reversed. Barton v. Hunter Administrator. Judgment affirmed. Darragh v. Baird. Judgment affirmed, appellee. Error to C. C. P. of Venango Co.-Wright v. Antwerp Pipe Line Company. Judgment reversed. Error to C. C. P. of Westmoreland Co.-Bovard v. Kettering. Judgment affirmed. Error to O. T. of Westmoreland Co.-Gray v. Common wealth. Judgment affirmed and record remitted, etc. BY TRUNKEY, J.: Certiorari to C. C. P., No. 2, of Allegheny Co.-Alexander v. Harris. Decree reversed and bill dismissed, costs to be paid by appellee. BY STERRETT, J.: Error to C. C. P., No. 1, of Allegheny Co.-Metropolitan Life Insurance Co. v. Drach. Judgment affirmed. GOR DON, TRUNKEY and GREEN, JJ., dissent. Hartman v. Keown. Judgment affirmed. Error to C. C. P., No. 2, Davis v. Erwin et ux. Judgment affirmed. Kroegher v. Pitcairn. Judgment reversed. Error to C. C. P. of Venango Co.-Spencer v. Clinefelter. Judgment reversed. BY GREEN, J.: Error to C. C. P., No. 1, of Allegheny Co.-Carlin & Co. v. Chappel. Judgment affirmed. The Baltimore & Ohio Railroad Company v. Schwindling. Judgment reversed. Jenny v. Zehnder. Judgment reversed and v. ƒ. d. n. awarded. Error to C. C. P., No. 2. Plunket v. Sauer. Judgment reversed. Plunket v. Ihmsen. Judgment reversed. White v. Borough of McKeesport. Judgment affirmed. -In Dagg v. Dagg, 51 L. J. (N. S.), 19, the plaintiff, a porter, sued a female cook in a bydropathic establishment for dissolution of a marriage founded on the following agreement: "This is to certify that whereas the undersigned parties do agree that they will marry, and that only to save the female of us from shaming her friends or telling a lie; and that the said marriage shall be no more thought of except to tell her friends that she is married (unless she should arrive at the following accomplishments, namely, piano, singing, reading, writing, speaking and deportment); and whereas these said accomplishments have in no way been sought after (much less mastered), therefore the aforesaid marriage shall be and is null and void; and whereas we agree that the male of us shall keep his harmonium in the aforesaid female's sittingCertiorari to O. C. of Allegheny Co.-Haberman's Ap-room, and agree that it shall be there no more BY GORDON, J.: Error to C. C. P., No. 1, of Allegheny Co.-Commonwealth v. Getikoh. Judgment affirmed. Certiorari to C. C. P., No. 1, of Allegheny Co.-Grier's Appeal. Decree affirmed and appeal dismissed at the costs of the appellant. SHARSWOOD, C. J., and GREEN, J., dissent. Error to C. C. P., No. 2, of Allegheny Co.-Devlin v. Commonwealth. Judgment affirmed. peal. Appeal dismissed and decree affirmed at costs of appellant. Appeal from C. C. P. of Venango Co.-Thompson v. Noble. Appeal dismissed and decree affirmed at costs of appellant. Error to C. C. P. of Westmoreland Co.-Branthoover v. than four months, and that from that time the aforesaid and undersigned shall be free in every respect whatsoever of the aforesaid female, as witness our hands, etc., Catherine L. H. Jeffries, William Pritchard Dagg." Not even the “barmonium" could reconcile the parties to pro-Alb. L. J. Certiorari to C. C. P., No. 1, of Allegheny Co.-Ewing's longed cohabitation, it seems.— Action of the Allegheny County Bar on the Death of George P. Hamilton, Esq. The members of the Bar of Allegheny county met in room one of the Court of Common Pleas, No. 2, on November 24, 1882, to take action upon the death of GEORGE P. HAMILTON, Esq. Thomas M. Marshall called the meeting to order by nominating the following officers: President-Hon. J. W. F. WHITE. Vice-Presidents The Judges of the Courts of Allegheny county. Secretaries-Wm. L. Chalfant, S. C. McCandless, William M. Watson and John D. McKennan. The chairman appointed as a committee to prepare a minute, Thomas M. Marshall, George Shiras, Jr., S. H. Geyer, C. W. Robb and Hill Burgwin. The following minute was presented and adopted, and upon motion of W. L. Chalfant it was ordered that it be entered in the records of the court and a copy of the proceedings of the meeting transmitted to the family of Mr. HAMILTON: The Bar of Allegheny county, so recently called upon to mourn the loss of one of its youngest members just entered upon a promising career, is now assembled to express its sorrow on the occasion of the death of one of its oldest members, whose professional life is finished, and with whom promise has become fulfillment. GEORGE PLUMMER HAMILTON died upon yesterday afternoon in the city of Philadelphia, and although for some time anticipated, and so not unexpected, his death is an event which demands recognition from the members of this Bar with which his whole professional life was identified. Mr. HAMILTON possessed in an eminent degree the elements of professional success. To great powers of analysis and ratiocination were added laboriousness and industry, with a remarakable capability for sustained mental effort. He was of inflexible will, of fearless judgment, possessing at all times the courage of his convictions. His devotion to his profession and to his clients was proverbial. His obligations to the Bench were never forgotten, and the highest honor and integrity pervaded every act of his professional life. The result of the whole was a symmetrical and successful career. In submitting the report of the committee Mr. Marshall made a few remarks. He was DEATH OF COLONEL ROBERT M. GIBSON. On Sunday morning last, at 9 o'clock, Colonel ROBERT M. GIBSON died at his residence, 81 Beech street, Allegheny City. Mr. GIBSON was born at Taylorstown, Washington county, Pa., October 9, 1826, and was second in a family of four boys. The death of his father, when the children were quite young, left the family in straitened circumstances, and it was the struggle of those early years that implanted in his heart the indomitable pluck and untiring energy that characterized his career in later life and contributed to his success in his chosen profession. Pre-eminently marking his early life was his devoted attachment to his mother, and this quality never deserted him when by his abilty and power as a jurist he stood in the front rank, respected and honored. At the age of 26 years he entered the law office of Hon. WILLIAM MONTGOMERY, one of the most noted men at the Washington County Bar, where, after a year's work as a student, he was admitted to practice in 1853. Shortly after his admission to the Washington County Bar Mr. GIBSON was taken into partnership by his preceptor, which relationship subsisted until Mr. GIBSON removed from Washington to this city in 1868. TRIBUTE OF THE ALLEGHENY COUNTY BAR. The members of the Bar of this county, met on Monday afternoon, at 2 o'clock, in room one of the Court of Common Pleas, No. 2, to do honor to the memory of their deceased brother. The meeting was an unusual large one. On motion, Hon. JOHN M. KIRKPATRICK was chosen President, and the Judges of the County Courts Vice-Presidents, and Chas. F. McKenna, J. Erastus McKelvy, John W. Donaldson and Joseph S. Cook, Secretaries. Judge KIRKPATICK on taking the chair paid a feeling tribute to the deceased as an advocate and a personal friend. On motion, the President appointed the following committee on resolutions: W. D. Moore, Chas. W. Robb, Malcolm Hay, D. F. Patterson and Josiah Cohen. These gentlemen, through their Chairman, W. D. Moore, submitted the following minute, which was approved unanimously: Within one short week the solemn providence of God has called this Bar together to mourn the loss of the young and the old who have given lustre to its annals, and to-day we are again called to stand by the bier of one who, in the prime of life, and the maturity of his powers, has been summoned to the judgment seat of God, and the place which knew him once among us will know him no more forever. The death of ROBERT M. GIBSON comes to us as with the shock of a personal bereavement, for it rarely happens that a member of our profession actively engaged in its duties and brought into daily collision with his associates has been fortunate enough to avoid personal enmities and jealousies, and secure affection as well as admiration, such as we all felt and accorded to him. His personal qualities were such as to win by a magnetism altogether resistless to the hearts of men; a knowledge of human nature almost infallible; a tact, address and readiness in dealing with men of all grades and attainments scarcely ever equaled, were used by him with a grace of manner and gentleness and sweetness of temper that made him for the time at least absolute master of all who came within the charm of his conversation and companionship. Add to these a wit the most brilliant, a humor the most tender and gracious, a thorough mastery of all that was beautiful and grand in English literature and a style so quaintly peculiar as to compel attention by the ignorant and cultivated alike, and it will be easy for others to understand and believe what we knew so well-that there was but one GIBSON at the Bar, and in his chosen walk unsurpassed and unequaled. By choice and habit he was devoted to the criminal law, although thoroughly qualified by diligent and careful study for the conspicuously excellent discharge of any duty of his profession. In that chosen sphere he was simply a master. qualities of which he was possessed shone there with a brilliancy which drew his fellow-members of the Bar and all waiting and careless on-lookers alike to the presence and the spell of that genius which Milton declares to be the "inspired gift of God." Passages of such exquisite beauty; of such incisive wit; of such overflowing humor; of such moving pathos and of such true grandeur and sublimity, rendered with such originality of manner, with such simplicity and apparent unconsciousness of their magnificence it has rarely been given to man to utter. Before the court and jury alike he was for the time resistless, and swept away all obstruction as the mountain torrent in its rush to the meadow and the sea. How full he was of all gentle charities-as a father, a husband, a friend; how tender to error and shortcoming; how helpful to the young and struggling members of the Bar; how unassuming, patient, generous; how pronounced and determined in his convictions; how honorable, yet tolerant in his maintenance of them. With what a large and liberal view and with what a great, good heart he took in and loved all phases and conditions of human life. From his struggling boyhood, through his student life, in his long partnership with his preceptor, Mr. Montgomery, and in his professional life among us for the last sixteen years, he steadily grew in all that goes to make the powerful and accomplished advocate, and died in the All the hour when we had hoped for long years of usefulness and honor, and when he had attained such professional triumph and acknowledged superiority as are rarely accorded to men. Alas, standing by this grave, how true does it seem that all is vanity and vexation and life, în truth an eternal sadness and disappointment. How vain our words of praise and love to the silent sleeper; how cold our commendations of him whose moving words will be heard no more, and how powerless all our earthly consolations in the presence of that irrevocable death which has laid its seal of eternal silence on his icy lips and will soon hush the sorrowing voices of those who loved him and are mourning him to-day. Let us catch the inspiration of his life and so best honor and remember him. He is not dead, for though he has ceased from his labors, his works do follow him, and in many a long year to come, and in many hearts his memory will be cherished and his power be felt for all that is good and great and beautiful among men. Remarks on the life of Mr. GIBSON, giving many interesting reminiscences, were made by J. F. Slagle, John N. McClowry, David F. Patterson, H. A. Collier, Chas. F. McKenna, Josiah Cohen and W. C. Stillwagon. It was unanimously voted that the Bar furnish a delegation to accompany the remains to the place of interment at Washington, Pa. On motion, the President directed a copy of the minute to be spread on the records of the court, and instructed the secretaries to present a copy to the family of the deceased. Supreme Court, Penn’a. PITTSBURGH, VIRGINIA AND CHARLESTON RAILWAY COMPANY v. THE COMMONWEALTH. The location of a railroad on a public road is an appropriation of the latter, and the extension of a city so as to include such public road, subsequent to the location but prior to construction, does not so change the character of the road as to withdraw it from the operation of the 13th section of the Act of February 19, 1849, requiring railroad companies to reconstruct any portion of a turnpike or public road, the site of which they have found it necessary to change. When a railroad company, subject to the provisions of the above act, fails to comply with the requirements contained in section 13 of the same, the municipality may reconstruct the road taken and recover the cost thereof from the railroad company, or may, by mandamus, compel the company to reconstruct, but the failure to reconstruct concerns the public. It is therefore an injury to the Commonwealth, to which belongs the franchise of every highway, and for such general injury to the public an indictment may be sustained. A corporation may be indicted for a breach of duty imposed on it by law, though not for a felony, or for public wrongs involving personal violence, as riots or assaults. Error to the Court of Quarter Sessions of Washington county. Opinion by MERCUR, J. Filed October 16, 1882. This indictment is against a railroad corporation subject to the Act of 19th February, 1849. The indictment contains two counts, the first charges a nuisance in a certain street in Monongahela City by the construction of an embank |