was not larger than the amount actually due, unless the amount claimed by way of set-off or defalcation is deducted therefrom." This proposition, according to the undisputed testimony, was correct, and should have been affirmed without any qualification. And as we understand the second point it should have been affirmed also. The third point was, "That if the amount claimed by Spencer, and for which distress was levied, was not larger than was actually due, unless reduced by way of set-off or defalcation the plaintiff cannot recover." This, together with the fourth and fifth points, which are merely deductions from the preceding propositions, should have been affirmed. The undisputed evidence was that after deducting the tenant's bill for carpenter work, there remained, independently of the claim for unliquidated damages, at least $160 rent due; and it is only by liquidating that claim at not more than $80 and deducting it from the amount for which the warrant was issued that the special verdict, above quoted, could be made up. Indeed it is expressly stated therein that the $80, found in favor of the landlord, is "the balance of rent due after deducting defalcation," that is, the amount allowed for damages theretofore unliquidated. While the $80, thus found, is the balance equitably owing by the tenant to his landlord at that date, it is not the amount of rent due, and for which the latter was entitled to distrain, when he issued his warrant. He was not then required to credit, on the rent in arrear, anything except actual payments, and such sums as the parties had agreed to treat as payment on account of rent. He was under no legal obligation whatever to deduct the tenant's claim for unliquidated damages. If, at the risk of being compelled to pay damages for excessive distress, a landlord is bound to deduct from the rent in arrear every conceivable claim or demand his tenant may have against him, the remedy by distress will soon become practically useless. But such is not the case. In ascertaining the amount of rent due, he is not required to credit the tenant with anything except payments on account, actual or constructive. Other matters of claim or account, which the parties do not agree to treat as payment, must be enforced by the tenant in some other way, either under the Defalcation Act before a justice of the peace or by separate suit.

distrained for more rent than he then had a right to collect in that form of proceeding.

It is contended, however, that the court found there was only "eighty dollars rent due and owing" when the distress was made; and that this, as a finding of fact, is conclusive. We do not think so. It is evidently an inference drawn from the special verdict in the defalcation proceeding. The learned judge reached that conclusion by substantially holding, as he erroneously did in refusing to affirm defendant's first and third points, that the landlord was bound to deduct the unliquidated claim for damages from the rent in arrear. It manifestly resulted from an error of law; and in effect it is practically the same as a verdict based on erroneous instructions. If the defendant's first and third propositions had been affirmed without qualification, and adhered to, no such inference could have been legitimately drawn. On the contrary, the irresistable conclusion would have been that there was at least $160 due at the time the warrant issued, and that plaintiff in error had a right to distrain for that amount; and therefore under the pleadings there could be no recovery.

From what has already been said it follows that the seventh and eight assignments of error should also be sustained.

Judgment reversed.

FINK'S APPEAL.

A., an only child, sought by suit to recover from the trustees of her grandfather's estate, her share, together with interest thereon for upwards of thirty years, which said share had been paid to her father as her guardian during her infancy. She admitted the payment but denied the right of the guardianship of her father upon the ground that no record could be found of his appointment as such. Evidence was deduced to show that the father had been recognized as her guardian and the said trustees ordered to pay him the money by the court below. It was also shown that many of the records of the Orphans' Court were lost or missing. Held, that as the Orphans' Court had recognized the father as her guardian, and that fact happening more than thirty years ago, the appellant was not entitled to

recover.

Appeal from the decreee of the Orphans' Court of Luzerne county.

Opinion by GREEN, J. Filed May 1, 1882.

There is no question in this case that the appellees did pay the whole amount of the share of the appellant in the fund arising from the sale of Daniel Walp's real estate. It was paid to Aaron Spade, her father, during her infancy. The appellant alleges that this was a mispayment, and now seeks to compel the appellees to

upwards of thirty years. The appellees allege that Aaron Spade was the guardian of the ap- | pellant, and that her share of the fund was paid to him as such. The fact of guardianship is denied by the appellant, and this disputed question of fact constitutes the contention of the parties. The denial of the guardianship is based upon the fact that no record of the appointment can be found. If there were a legal requirement that the appointment of a guardian could only be proved by the production of the original petition, and the record entry on the minutes, the contention of the appellant would be sustained. But we do not understand that there is any such rule. Mr. Bogert, an assistant clerk, was examined, and testifies that he had searched the files of the Orphans' Court and found no appointment. He also examined the indices. He adds, however, that he did not examine either the docket or the minutes, and says also: It has been found in reindexing the Orphans' Court docket there are many things that were not indexed. I also find there are many of the old files not to be found in the office." It is obvious after such a statement as this that there would be no propriety in the conclusion that the appointment was never made. The examination was not complete in any sense and simply developed that an imperfect search failed to discover the entry of an appointment. On the other hand, in support of the allegation of the appointment very considerable testimony was given. The fund was derived from the sale of a decedent's real estate under an order of the Orphans' Court. The petition was presented on August 20, 1849. It purported to be presented and signed by all parties in interest, and in reciting the names of the parties describes one of them thus: "And Aaron Spade, who is the guardian of Mary Ann Spade, and who intermarried with Mary Ann Walp." The appellant, Mary Ann Fink (formerly Spade), was at that time between four and five years of age, and, of course, could only act by a guardian. On this petition the Orphans' Court, on the same day, granted an order of sale to the appellees as trustees. The order also recites Aaron Spade as the guardian of Mary Ann Spade. Under this order the real estate was sold and the proceeds were subsequently distributed among all the parties entitled, without an account. No complaint was ever made by any of the other parties interested. In the year 1877, twentyseven years after the confirmation of the sale, the appellant filed a petition for a citation to compel the trustee to settle an account. The appellant attained her majority in the year 1866, having married John Fink in 1865. They testi

fied that they did not discover that they had a claim until in 1869. It seems that they brought a common law action against the trustees in 1873. In addition to the recitals of the guardianship contained in the petition and order of sale above mentioned, a deed was given in evidence dated March 12, 1849, in which five of the parties interested, conveyed to the other two, a tract of land of the decedent in Hollenbach township. Among the grantors was "Aaron Spade, guardian of Mary Ann Spade." John Weiss, one of the appellees, testified: "Jacob Wealer was the attorney who carried through the whole proceedings. ** I acted under his advice." *** "Aaron Spade was appointed as guardian in settling up the estate. I treated with him as to her share." ** I paid Mary Ann Spade (Fink's) share of the money to Aaron Spade." By the foregoing facts and testimony it appears that the petition for the order of sale was prepared by an attorney, who, of course, knew the necessity of the minor appearing by a guardian in the proceedings; that an order of sale was granted by the Orphans' Court upon the faith of the petition, and that the title passed to, and was accepted by, the purchaser, upon the assumption that Aaron Spade was at that time the guardian of his daughter; that the title to another part of the decedent's real estate was conveyed to two of the heirs, upon the same assumption; and finally, that the trustees who received the proceeds of the sale paid the appellant's share to her father as her guardian. It is difficult, indeed impossible, to believe that all these transactions could have taken place and yet that Aaron Spade in reality was not his daughter's guardian. The personal interests of those who dealt with him in that character would necessarily have prompted them to ascertain with certainty his title to his office, before joining with him in a petition to the Orphans' Court, or in a conveyance of real estate, or before receiving the title to land from him, or paying him money which, if wrongly paid, would subject them to a liability to pay it again. It is much more easy to believe either that the clerk made an imperfect search for the record of the appointment, or that the original petition was lost or the entry not made. The auditor has found as a fact that the appointment was made and no bond given. And the court below has found that from all the facts in evidence they were bound to conclude that the appointment had been made. We fail to discover anything in the case to impair the correctness of these findings. The maxim omnia praesumunter esse rite acta is clearly applicable in such a case, and when to this is added the positive

Sur motion for preliminary injunction. Opinion by ACHESON, D. J. Filed December 18, 1882.

The subject-matter of this suit is a trust of real and personal property evidenced by an instrument of writing executed by the trustee, James E. Brown, defendant's testator. The surviving cestui que trust is Mrs. Linton, one of the plaintiffs, in whose behalf the suit is prosecuted. Beyond question the case presented by the bill is of equitable cognizance, and it is equally clear that in virtue of the citizenship of the parties this court has jurisdiction of the controversy.

It is alleged that the judgments in the State Court recited in the bill belong to the trust, and that Mrs. Linton is now the owner thereof under the terms of the trust; and one of the prayers of the bill is to have the trust in respect to said judgments judicially declared, and enforced in favor of Mrs. Linton, and the judgments assigned to her. To this relief, it would seem, she will be entitled if the allegations of the bill are sustained. We are now asked to restrain the defendants, until further order, from exercising any acts of ownership over the said judgments or in any wise interfering with the same. If the plaintiffs' allegations are true, the defendants-the personal representations of James E. Brown, deceased,—are making a most inequitable and unwarrantable use of the judgments by means of executions and levies in violation of the trust, and in fraud of the rights of Mrs. Linton.

Is this court powerless to arrest such wrong by reason of the statutory provision which forbids the courts of the United States to grant injunctions, to stay proceedings in a State Court? [R. S., Sec. 720.]

I am of opinion that the case is not within the purview of the prohibition. It is not proposed to interfere with the rightful authority of the State court in any proper sense. The contest here relates to the ownership of the judgments. It is alleged, and for the purpose of this motion it may be assumed to be satisfactorily shown, that they belong to Mrs. Linton; and, if so, the defendants have no right to intermeddle with them.

If these judgments appertain to the trust, which is the foundation of this suit, they are an inherent part of the controversy and must enter into our final decree if complete justice is to be done. And strange, indeed, would it be were this court impotent to restrain a trustee subject to our general equitable jurisdiction from making a fraudulent use of a trust judgment standing in å State Court. Surely there can be no such defect in our judicial system.

Under the admissions in the defendants' affidavits I think the present motion should be allowed without requiring security. By virtue of the judgments of revival and the execution attachments, every possible lien against the entire estate, real and personal of the late Mrs. Finley, has been acquired. Should the controversy not terminate within five years from the date of the revival of the judgments, we will allow alias writs of scire facias to issue.

· The injunction prayed for is allowed, the same to remain in force until further order.

For plaintiffs, Messrs. Hill Burgwin, Geo. W. Guthrie and Jas. P. Colter.

Contra, Messrs. E. S. Golden and John Gilpin.

-In Willett v. People, a murder case, in the forthcoming volume of Hun's Reports, two curious points of evidence were passed upon. Upon the prisoner's arrest letters were found in his trunk from the deceased and from his sister and daughter, hinting at improper relations between the prisoner and the daughter. No letter from the prisoner calling forth or answering these letters was proved. Held, that the court erred in admitting the letters against the prisoner. On the coroner's inquiry a witness recognized the prisoner by his voice out of a number of persons passing behind and speaking the same words, which she testified had been spoken in her hearing by a person whom she believed to be the prisoner, and who called on her on the night of the murder. Proof of this experiment was admitted on the trial. On neither occasion did the prisoner deny that he was that person. Held, that it was error to admit this evidence on the theory of an admission by the prisoner's silence.-Alb, L. J.

sold.

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Editor.

No. 22.

PITTSBURGH, PA., JANUARY 10, 1883.

Supreme Court, Penn'a.

APPEAL OF GEORGE S. BRYAN.

A sheriff's sale on a municipal lien filed under the Act of January 6, 1864, relating to streets, etc., in the city of Pittsburgh, divests a prior fixed lien on the property The lien was filed against a party as the owner, who had no title to the premises, more than six months after the completion of the work for which it was filed; it was amended by making unknown owner the defendant.

Held, that the amendment was authorized by the act. The lien was not indexed against unknown owner as required by the act. Held, that the omission to index did not affect the purchaser at the sheriff's sale. The sale on the lien was procured to be made by E., the husband of the devisee for life of the property, for the purpose of divesting a charge thereon for the support of F., an imbecile, and the property was bid in by Z. for E. Z. afterwards conveyed it to E. Held, that the property in E.'s hands was not subject to the lien of the charge for the support of E.

Municipal liens for grading and paving streets are a species of taxation binding the entire estate in the land, except where the Act of Assembly directs other

wise, and no charge created by the owner of the prop

erty can avail as against them. E. executed a mortgage thereon to P., who assigned it to B. B. foreclosed the mortgage and purchased the property at sheriff's sale, Held, that there was not suffi

cient notice from the records to put B. on inquiry as to the character of the sale on the municipal lien, and that he held the property free of the charge for the support of F.

Appeal from the decree of the Orphans' Court of Allegheny county.

Mary A. Garber in her last will and testament, probated the 22d day of May, 1867, devised three lots of ground in the city of Pittsburgh to her daughter, Mary E. Bostwick, for life, with remainder to her six children, and charged the premises with the support and maintenance of Frederick Bentz, a son of the testatrix, if by reason of sickness, bodily or mental infirmity, he should at any time be unable to work.

The city of Pittsburgh, on the 22d of March, 1875, filed a lien against these lots for $203.16, the amount assessed thereon for the grading, etc., of Bates alley, the work having been completed on the 27th day of September, 1874. This lien was filed against E. Bostwick, the husband of the devisee for life, as the owner. On the 17th of July, 1875, the record was amended by making unknown owners parties

defendant. The cause then proceeded to judgment against unknown owner, and the lots were sold on a levari facias issued thereon, on the 8th day of October, 1875, to Jacob W. Zahniser, for $1,100. By deed dated and acknowledged on the 25th day of October, 1875, Zahniser conveyed them to Edmund Bostwick. He on the 19th of November, 1875, his wife, Mary Elizabeth Bostwick, the devisee for life, joining therein, executed a mortgage thereon in favor of Isaac M. Pennock to secure the payment of $7,000 in three years from the date thereof. Mr. Pennock on the 24th day of November, 1875, assigned this mortgage to George S. Bryan. Mr. Bryan foreclosed this mortgage and purchased the property on the 15th day of September, 1877, and is now in possession of it.

Frederick Bentz lived twelve years with Joel Skellin, administrator c. t. a. of the testator's estate, who filed a petition, alleging that Bentz was unable by reason, both of mental and bodily infirmity, to work sufficient to support himself, and that there was due the petitioner for his support $1,650, and praying for an order for the sale of the premises for the payment thereof.

In answer to this petition George S. Bryan, the respondent, claimed that the charge on these lots for the support of Bentz was divested by the sale on the municipal lien.

The court below decreed that the premises described in the petition owned by Bryan were held by him charged with the support and maintenance of Bentz, and that Bryan pay $750 already due, and thereafter $150 per annum. For opinion of the court below, OVER, J., see 30 PITTSBURGH LEGAL JOURNAL, 47. Bryan took this appeal.

For appellant, Messrs. Geo. Shiras, Jr., and C. C. Dickey.

Contra, Messrs. Barton & Son.

Opinion by PAXSON, J. Filed November 20, 1882.

We are of opinion that the learned judge of the Orphans' Court was correct in holding that the charge upon the real estate in controversy, for the support of Frederick Bentz, was discharged by the judicial sale. It was in the nature of a fixed lien, and may be said to come within the exceptions pointed out in Heister v. Green, 12 Wright, 96, and as such binding between parties and privies. The property, however, was sold upon a municipal claim filed by the city of Pittsburgh for grading and paving a street abutting thereon. The Act of May 16, 1857, section 4, P. L., 542, provides that "all taxes, rates and levies which may hereafter be lawfully imposed or assessed by authority of said city (Pittsburgh) on any real estate therein,