liable, but they are still copartners, and suit should be commenced by bill in equity. Paul v. Keystone Lodge, 3 WEEKLY NOTES, 408. C. Davis, contra. The Act of 28 April, 1876 (supra), in declaring that such benefits shall be paid from the treasury only, makes such associations quasi corporations. Suit is therefore to be brought against the officers having control of the funds. THE COURT. Notwithstanding the Act of 28 April, 1876 (supra), such associations still continue to be partnerships. This Act simply limits the remedy. It exonerates the members from all individual liability, and confines the execution to the partnership property. We think that such an action may be maintained at law. In the present instance, however, the suit is not properly brought. Demurrer sustained, with leave to amend. No. 7. $59310. Philadelphia, March 17, 1880. Treasurer of League Island Loan and Building Association pay to Edward C. Quin, or order, five hundred and ninety-three, for withdrawal of five shares of stock, first series. By order of Board of Directors. EUGENE J. LINDSAY, President. FRANCIS COURTENAY, Secretary. Indorsed, E. C. Quin, for the rule. The affidavit does not allege that these losses were not deducted before fixing the amount of the drafts sued on; nor is any explanation made of how the drafts happened to be given; no mistake is alleged, nor any change of circumstances subsequent to the making of the drafts. Maxwell Stevenson, contra. The indorsee, plaintiff, took these drafts after maturity, and subject, therefore, to all the equities existing between the original parties. Paper to be negotiable must not be confined to credit upon any future or contingent event. The addition of the words, "payable in current funds at Pittsburg," has been held to destroy negotiability of a note. Wright v. Hart, 44 Pa. St. Rep. 454. THE COURT. The affidavit does not allege that the fines, etc., to be deducted, and the interest to be added, were not adjusted before the instruments were executed, and there is nothing on the face of the papers themselves to exclude this hypothesis. Rule absolute. Orphans' Court. Sept. 27, 1880. Fraley's Estate. Testamentary power of sale of real estate, in discretion of executors-Jurisdiction of Orphans' Court, where executors differ as to exercise of discretion-When an executor, who alone has contracted to sell at private sale, will be ordered to join in a public sale. Sur petition for an order on a co-executor to join in sale of real estate, answer and replication. EDWARD C. QUIN. The defence set up by the affidavit of Eugene J. Lindsay, the President of the corporation defendant, was, that Devenny, the nominal plaintiff, was used simply as a cover to prevent the setting up of the equitable defence which the corporation had against Quin, the payee of the The petition of George S. Fraley set forth that drafts, and that Quin was still the owner. This by the will of Thomas S. Fraley he provided, equitable defence consisted in the fact that at inter alia, that his executors should have power the time the drafts were made the corporation to sell his real estate whenever they deemed it had suffered losses amounting to $4000, of which proper. He appointed his sons, Thomas S. Fraloss Quin's share was $250; that Quin took ley, Junior, and George S. Fraley, his executors. these drafts with notice of this loss and of his The petitioner prayed for an order on Thomas liability for his share thereof; that the said drafts S. Fraley, Jr., to join in making a public sale of were not negotiable, by reason of the words, a certain tract of real estate of decedent in the "for withdrawal of five shares of stock," appear-city of Philadelphia. ing on their face, and because the corporation The answer set forth an agreement by the rehad no power to issue negotiable paper. spondent for a private sale of the property in question and prayed an order on petitioner to join in a deed with the respondent Further, that only 50 per cent. of the funds of the corporation could be applied to the payment of the claims of withdrawing stockholders, and A replication alleged great inadequacy of price that there were now no funds in the treasury and dissatisfaction of all the parties in interest to which could legally be applied to the payment of the sale alleged in the answer. these drafts. W. F. Johnson (with whom were Sellers & Thorn), for the petition, cited Daily's Appeal (6 Norris, 487), as to the jurisdiction of the Orphans' Court. [HANNA, P. J. Why do you not proceed with a public sale, and then ask the respondent to be enforced to complete it.] This is a court of equity and as such has a very large discretion; if we go on to a public sale no purchaser could be obtained in the face of this outstanding contract of sale of the respondent. E. K. Nichols, contra. Eo die. THE COURT granted the prayer of the petition and directed a decree for a public sale of the property in question to be entered. Sept. 27, 1880. Becher's Estate. Overdue bond and mortgage-Payment into Court-Jurisdiction The mortgagee by his will cannot impose new duties upon the mortgagor. Sur petition to pay money into Court, and answer. The petition of Joseph R. Gardner and wife sets forth that a portion of the assets of Joseph Becher's estate consisted of the petitioners' bond and mortgage, dated April 12th, 1869, payable to decedent in ten years from the date thereof. That the testator had given the whole income from his estate to his wife (the executrix and trustee of his will), for life, and directed as follows: principal and interest due thereon, and averred her power to receive the mortgage debt and interest, satisfy the mortgage, deliver up the bond and other papers, and assign the collateral policy of insurance, though the respondent should make no reinvestment or secure the approval of the "Court of Common Pleas." That she had not called in the mortgage, considering it a good investment, and that she would receive the money only because it was due. She also showed that her administration had not been settled, the decedent not being dead one year. That she was advised of the want of jurisdiction of this Court to receive any mortgage money under such circumstances, as also that this Court could not compel her to enter satisfaction upon the said mortgage record, without payment to her of the moneys thereby secured: and prayed the dismissal of the petition at petitioners' cost. E. Walton for petitioners. The executrix has refused to petition. [HANNA, P. J. She has power to receive the money.] The will requires the petitioners to see to the application of the money. [PENROSE, J. That would be making a new contract.] John B. Uhle, contra. October 2, 1880. THE COURT. Irrespective of the absence of jurisdiction in this Court to authorize the mortgagors to pay the amount of the bond and mortgage into Court, and direct the executrix of the deceased mortgagee to enter satisfaction of record, which alone would be a "And that my said estate may be managed during my sufficient reason for refusing this petition, the wife's lifetime with as little embarrassment as possible, I testator has attempted to impose upon his debtors authorize and empower my said wife, the aforesaid exec-duties and liabilities which are clearly not bindutrix and trustee, whenever in her discretion it may be deemed advisable, to call in, collect, and receive the investments on bond and mortgage, or otherwise, and also to sell and dispose of any of my real estate, either at public or private sale, as to her shall seem meet, and in the event of sales of real estate, to make good and sufficient titles, duly executed and acknowledged, to the purchaser or purchasers thereof, his, her, or their heirs and assigns forever, and invest the proceeds coming to her hands from either real or personal estate in good and sufficient securities, to be approved of by the Court of Common Pleas, for the uses and purposes of this my will. And such approval being obtained, the purchaser or purchasers of the real estate, or the mortgagors paying the principal of any mortgage, shall not be liable or responsible for the application or investment of the moneys so paid by them." The petitioners averred the refusal of the executrix to apply to the Orphans' Court for approval of investment of the money secured by their bond and mortgage, which they desired to pay off with safety to themselves, and prayed for leave to pay the principal and interest into Court, and for a decree requiring the executrix to enter satisfaction of the mortgage. The executrix filed her answer, admitting the possession of the mortgage and the amount of ing, and must be held inoperative. The debt in highway within the contemplation of the law, permitting an indictment for the obstruction of travel on highways; and if the railroad company is liable to indictment for obstructing the road in the manner in which they have done in the construction of their road over said turnpike as herein before set out, then we find the de-. fendant guilty in manner and form as it stands indicted; otherwise we find the defendant not guilty." The Court (HERMAN, P. J.) being of opinion (1) that the said turnpike is a public highway, and (2) that the defendant is liable to indictment for obstructing the same, which it has done in the construction of its railroad on it, thereon. Nuisance-Obstruction of public highway-entered a verdict of guilty, and judgment Turnpike road-Liability of railroad company for nuisance caused by tracks crossing turnpike road in a manner to obstruct travel. Indictment for maintaining a nuisance lies against a railroad company where the track crossing is such as to cause a dangerous obstruction to travel. The fact that the crossing has existed in its present condition for twenty-four years is no answer to an indictment for maintaining a nuisance, as the Statute of Limitations runs not against the Commonwealth. A turnpike road, constructed by a turnpike corporation, on which tolls are collected, is a "public highway" in so far that an indictment will lie against one obstructing it, as for a public nuisance. The defendant took this writ, assigning for error the decision of the Court. John Hays (with him A. B. Sharpe), for plaintiff in error. A turnpike is not a public highway within the meaning of the law, allowing an indictment for obstructing a highway. Act June 13, 1836, Sec. 68, Purdon's Dig., 1284, pl. 99. Act March 31, 1860, Sec. 13, Id. 336, pl. 108. The word "highway" denotes a way that is common to all persons. Harding v. Inhabitants of Midway, 10 Metcalf, 3 Bacon's Abridgment, 493, Highways. The "public road or highway," within the meaning of the law, is one laid out in the manner provided by the Road Law of 1836, and its Error to the Quarter Sessions of Cumberland supplements. County. Indictment against the Northern Central R. R. Co. for maintaining a nuisance in a public highway, to wit, the Harrisburg and Chambersburg Turnpike Road, by building an embankment or railroad crossing thereon. The defendant filed a special plea, setting forth that the turnpike is not a public road or highway; that the dirt, stones, and embankment set forth in the indictment, are the stone, ties, plank, and rails of the railway track of the said defendant, laid down in pursuance of its charter granted by Act of Assembly; that the same has been held, used, and enjoyed as it now stands for a period of twenty-four years and upwards; and that, by Act of Assembly of 24 April, 1806, a remedy is provided to compel officers to keep in proper repair such artificial roads as the turnpike in this case. The Court overruled the special plea, and entered judgment quod respondeat ouster. Upon trial, the jury rendered a special verdict, finding the facts constituting a nuisance, and concluding Clark v. Com., 9 C. 114. The turnpike is not, by its act of incorporation, declared a highway, nor has it any analogy to a public road. Com. v. Penn. Canal Co., 16 P. F. Sm. 42. Iron City Bank v. Pittsburgh, I Wr. 340. Southwark R. R. Co. v. Phila., 11 Wr. 314. Township of Newlin v. Davis, 27 P. F. Sm. 317. Phoenixville v. Phoenix Iron Co., 9 Wr. 135. Com. v. Fisher, 1 P. & W. 465. Wilson v. Allegheny City, 29 P. F. Sm. 278. The railway company has the right to obstruct as follows: "If the turnpike road is a public the turnpike in the manner it has done. VOL. IX.--9 This railway was a public work for the public good, authorized by law, hence not indictable. 6 Barbour, 313; 7 Id. 508; 13 Id. 646; 10 Id. Danville, Hazleton, and Wilkesbarre R. R. Co. v. An indictment will not lie against the railway for the non-repair of the turnpike road when the charter of the latter provides a remedy; in such cases the specific remedy should be followed. Act Feb. 24, 1806, P. L. 362-3. George S. Emig and S. Hepburn (with them material to the issue before them. Com. v. Wilkinson, 16 Pick. 175. Straits Turnpike Co. v. Hoadley, 11 Conn. 464. Act Feb. 19, 1849, Sec. 12, P. L. 84. The jury find that the obstruction is dangerous. The railway has no right to its crossing from its use of it for twenty-four years and upwards, as claimed by plaintiff in error-"Nullum tempus occurrit regi." City of Rochester v. Erickson, 46 Barb. 92. For history of turnpike roads, see Proprietors, etc., v. Southampton R. W. Co. (6 Meeson & Welsby, 428.) construction of a railroad track across a public nuisance. poses. Such It is contended, however, that a turnpike constructed by a corporation is not a public highway. The main object and purpose of a turnpike is to provide a public highway of a superior quality. That it is not a private road or way is very clear. It is not constructed under the supervision of municipal officers; yet it is by virtue of public authority, and for public purIt is for the use of every person desiring to pass over it, on payment of the toll established by law. It differs from the common highway in the fact that it is not constructed in the first instance at the public expense, and the cost of construction is reimbursed by the payment of toll imposed by authority of law. Its use is common to all who comply with the law. from its obstruction as if it was a common highThe same public annoyance and injury arises way; hence in Lancaster Turnpike Co. v. Rogers (2 Barr, 114), it was said that when the turnpike company ceased to use a building it ceased to be there for a lawful purpose, and erected in part on the turnpike as a toll-house, became a public nuisance. Common understanding and public policy unite in requiring us to hold that a turnpike is a public highway in so far that an indictment will lie against one obstructing it, as for a public nuisance. It was so held in Com. v. Wilkinson (16 Pick. 175). Oct. 6, 1879. THE COURT. It is well reThe Statute of Limitations runs not against the cognized law that an indictment will lie against Commonwealth. Twenty-four years of cona corporation, not municipal, for the creation tinued nuisance create no presumption of a grant and maintenance of a public nuisance. (Reg. v. therefrom to maintain the same. Nor does the Great North of England Railway, 9 Q. B. 315; fact that the Act of Assembly gives the turnDater v. Troy R. R. Co., 2 Hill, 629; Chest-pike company a specific remedy for an injury nut Hill Turnpike v. Rutter, 4 S. & R. 6; to its rights, impair the separate rights of the Delaware Div. Canal Co. v. Com'th, 10 P. F. Commonwealth. The owner of the fee of land Smith, 367.) This indictment charges the plaintiff in error with having unlawfully and injuriously obstructed a public highway. The obstruction in question is in a turnpike, and caused by the manner in which the railroad crosses the same. The special verdict finds the mound, caused by the railway crossing the turnpike, "amounts to a serious inconvenience, and a dangerous obstruction to travel." The mere over which a common highway passes, may maintain trespass against one who deposits and maintains materials thereon. (Lewis v. Jones, 1 Barr, 336.) Yet this in no wise bars the right of the Commonwealth to indict for the same act. So in the present case, the right of the Commonwealth to redress a public wrong is very clear. It is no sufficient answer to the wrong committed by the plaintiff in error the defendant was ruled to plead. September 24, 1879, defendant pleaded non est factum. prove that it would require an expenditure of from five thousand to eight thousand dollars to so lower the bed of the turnpike as to allow it to On November 18, 1879, plaintiff presented a pass under the railroad. Whether that is the petition to the Court to amend the name of the least expensive manner of removing the danger- plaintiff so as to read: "The Commonwealth of ous obstruction we are not informed; but if it Pennsylvania, suggesting Buela Mettler." Obbe, the sum is not so great as to absolve the rail-jected to, because it appears, by the declaration road company from its duty of so making the crossing that it shall not endanger the reasonable passage of persons and transportation of property over the turnpike. The learned Judge committed no error. Judgment affirmed. Opinion by MERCUR, J. WOODWARD and PAXSON, JJ., absent. May, '80, 112. June 8, 1880. Clement v. Commonwealth ex rel. Buela Mettler. filed, that the cause of action occurred April 25, 1872, and the limitation of seven years fixed by the Act of April 4, 1798, § 4 (Purd. Dig. 933, pl. 29) having expired, the proposed amendment would be equivalent to bringing a new suit. Objection overruled, and amendment allowed; exception; (first assignment of error). The defendant thereupon, by leave of the Court, withdrew his plea of non est factum, and pleaded specially: (1) That prior to the amendment Buela Mettler was not entitled to bring suit in her individual name, as plaintiff, on the said official bond. (2) That prior to the amendment admitting the Commonwealth as plaintiff, the action was barred by the Statute of Amendment-Parties-Addition of the Common-two of whom are dead and one living, were not Limitations. (3) That other parties on said bond, wealth as statutory plaintiff in suit on official joined as defendants. (4) That in a prior action bond-Permissible even after original cause of on the same official bond brought in the name of action barred, where defendant is not injured the Commonwealth, to use of said Buela Mettler, thereby-Suits on official bonds-Act of June against the principal therein, W. D. Haupt, a 14, 1836-Separate suits, in name of Com-verdict had been entered in favor of the plaintiff monwealth, may be maintained against the therein in the full amount of the penalty; and principal and each of the sureties. A suit was brought against a surety on an official bond of a prothonotary, in the individual name of the injured party as plaintiff, instead of in the name of the Commonwealth suggesting the name of the party suing out the writ, as directed by Act of Assembly. The præcipe and summons recited that the suit was on the official bond. After appearance, declaration, and plea, and after the original cause of action had been barred by the Statute of Limitations, the Court permitted the record to be amended by making the Commonwealth a party plaintiff: Held, that the amendment was properly permitted, as no new cause of action was introduced, and no injury was worked thereby to the defendant. An official bond, signed by a principal and his sureties, is a joint and several obligation, and while the Act of June 14, 1836 (P. L. 639), prohibits the bringing of separate actions by different plaintiffs on the same official bond, there is no prohibition of a separate suit, in the name of the Commonwealth as plaintiff, against each obligor in the bond. two actions upon the same official bond would be contrary to the Act of April 14, 1836. Replication, and demurrer thereto. After argument the Court overruled the demurrer, ELWELL, P. J. (holding special Court), delivering the following opinion: "Official bonds of prothonotaries and their sureties are required by Act of 14th April, 1834, to be joint and sev eral. . Before the passage of the Act of 14th June, 1836, joint and several actions were maintainable on joint and several official bonds by each person claiming a several interest. Especially was this the case in actions upon sheriff's bonds under the Act of 1803. (Beeson v. The Commonwealth, 13 S. & R. 249.) "It is contended that the Act of 1836 prohibits the bringing of separate actions against the obligors in official bonds, on the ground that it provides that there shall be but one judgment, in favor of the Commonwealth, upon such bonds. Error to the Common Pleas of Northumber- This contention is no doubt correct to the extent land County. Debt on an official bond. The suit was originally entered, May 1, 1877, in the name of Buela Mettler, plaintiff, v. Ira T. Clement, defendant. The præcipe and summons recited that the action was on the official bond of W. D. Haupt, as prothonotary of Northumberland County. The defendant having appeared, a narr. in debt on official bond was filed, and on August 20, 1879, that separate judgments cannot be entered against the same party at the instance of different parties. Nor can two judgments be entered either against all of the parties jointly nor against any one separately. In other words there can be but one suit and one judgment for the penalty against any of the obligors. The cases of Commonwealth v. Straub (11 Casey, 137), and Commonwealth v. Cope (9 Wright, 161), decide that the pendency |