other side. But he has also surcharged $127.50, excess of watchmen's pay, though he has taken it out of the costs, and $30, probate fee, to Schmidt, though it is not included in expenses, and $15.71, excess in commission, though he had already eliminated this by allowing the proper amount as credit. He also erred in surcharging these sums in the general fund, though the items were expenses in the stock account. This will be corrected by charging the accountant with the money received on each account, allowing him credit for proper payments on each, and distributing the balances.

"Some of the creditors filed exceptions to the allowance of commissions of the assignee as excessive. The charge allowed is five per cent. No evidence has been offered to show how this is excessive. It does not appear to be.

This disposes of all the exceptions filed. "There are, however, two matters in the report to which we deem it proper to refer. In our former opinion we stated the amount received from book accounts as $8,907.56. The auditor says this is an error; that the true amount is $8,593.33. The accounts undoubtedly show the amount as stated by the court. There may be an error in stating the account. It has not been shown. But it is probable that the auditor has the correct amount, and, as no exception has been filed, we will assume it to be correct.

"The auditor has allowed out of the fund a fee of $204.27 to A. G. Smith, Esq., attorney, for certain creditors who filed exception to the assignee's account upon which the book accounts were held to raise a fund for general creditors. We are not satisfied as to the right to such allowance, but, as no exception has been filed, we do not feel it our duty to interfere, but do not wish that it be regarded as a precedent. From the account it would appear that the moneys received by the assignee have been paid out by him. We will state the accounts, and make distribution as if none had been paid, with the understanding that any sum distributed to parties who have been paid shall be retained by the assignees, and the receipts already given will be a sufficient voucher."

A. M. Neeper, for appellant. Albert York Smith, for appellees.

PER CURIAM. In his opinion disposing of exceptions to the first report of the auditor in this case, the learned judge held that the assignment by Dickson & Co. of their book accounts to W. A. Schmidt, executed within an hour before their general assignment to appellant, was in effect a voluntary assignment for the benefit of creditors, which, in the circumstances and under the provisions of the act of April 17, 1843 (P. L. 273), inured to the benefit of all the creditors of appellant's assignors. Said act declares: "That all assignments of property in trust, which shall hereafter be made by

debtors to trustees on account of inability at the time of the assignment to pay their debts, to prefer one or more creditors (except for the payment of wages of labor), shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands; and all such assignments shall be subject in all respects to the laws now in force relative to voluntary assignments." In view of the undisputed facts upon which the question arose, the learned judge was clearly right in holding as he did, and in recommitting the matter to the audi tor, with instructions to make distribution in accordance with his opinion.

The auditor's second report, with schedule of distribution attached, was excepted to by appellant. In his second opinion disposing of these exceptions, the learned judge fully considered and correctly disposed of all the questions presented, including the main question, as to the effect of the assignment of the book accounts to Schmidt,-which had been previously considered and decided.

It is unnecessary to consider the specifications of error in detail. There is nothing in either of them that would warrant a reversal or modification of the decree. All that need be said in relation to either of the questions involved will be found in the clear and convincing opinion of the court below. For reasons therein given, we think there is no error in the decree. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

COMMONWEALTH v. HARMEL. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

PEDDLER'S LICENSE

INTERSTATE COMMERCE
POLICE POWER.

1. A finding that defendant was engaged in selling clocks, within Act Feb. 6, 1830 (P. L. 39) forbidding persons to peddle clocks without making proof of good moral character and obtaining a license, though he gave a contract purporting to lease them, is warranted where the contract provided that the A. Company rents one clock for the term of 13 months, at the rent of 25 cents a week, with permission to the lessee at any time to purchase the clock for $13, and be allowed all rents as a credit on the purchase, and the general agent of the company testified that they were by him delivered to the road agents, who sold them on monthly installments, for a commission.

2. Act Feb. 6, 1830 (P. L. 39), requiring all persons desiring to peddle clocks to make proof before the court of quarter sessions of their good moral character, and to obtain a license, being general and reasonable, is a proper police regulation, and not in violation of the interstate commerce clause of the constitution of the United States.

Appeal from court of quarter sessions, Allegheny county.

Rudolph Harmel was convicted of peddling clocks without a license, and appeals. Affirmed.

J. W. Kinnear and Shiras & Dickey, for appellant. A. B. Stevenson, for the Commonwealth.

WILLIAMS, J. The judgment now appealed from rests on three distinct findings of fact made by the learned judge of the court below. These are: First, that the defendant was engaged in April, 1894, in the business of selling clocks in Allegheny county; second, that he made his sales, not as a merchant having a place of business, but as a peddler, going from house to house, and exposing his clocks for sale in the homes he had invaded; and, third, that he was in so doing violating the act of February 6, 1830 (P. L. 39), as he had no license authorizing him to sell clocks. These findings have not the conclusive effect of a verdict, but they are entitled to great weight and will not be disturbed unless plain error is shown.

As to the second and third findings no serious question is raised. It is conceded that the defendant had no license under the act of 1830, and it is not denied that he carried his clocks from house to house, and disposed of them wherever he could bring a possible customer to bay.

The first finding is attacked on the allegation that the defendant did not sell clocks, but let them for hire, and that the persons who took them were bailees, and not purchasers. In support of this position the written agreement made with customers was relied on. It provided that the American Wringer Company rents one clock for the term of 13 months, at the rent of 25 cents per week, or $13 for the term; and the lessee may at any time during the term purchase the clock for the price of $13, and be allowed all rents as a credit on such purchase. Now, let it be conceded that this agreement may be enforced according to its terms between the parties, because it is their agreement; the question still remains, what is the legal effect as to the rights of creditors or the commonwealth? The rent and the price of the article are the same. The payment of the price passes the title to the purchaser. It was plain to the court below that the device of a lease was a cover for an actual sale, in violation of the act of 1830, so thin as to be transparent. The justice of the peace before whom they were first brought testifies that the defendant admitted that he was selling clocks. The constable who arrested him testifies that he saw him going from house to house, peddling clocks. Maggie Tyrie, a witness, says he offered to sell a clock to her. She finally took it, and the paper relied on as a lease was produced, executed, and left with her as a receipt for the money paid. Two other witnesses testified that clocks were offered to them, to be paid for by monthly or weekly payments. G. H. Rishel, the general agent of the American Wringer Company at Pittsburgh, testified that the company was a corporation, created under the laws of Rhode Island; that the clocks were made in Connecticut, and sent to him in original packages. By him they were delivered to the road agents of the

company, who sold them at retail, upon a commission. In answer to the question, "On what terms are they sold?" his answer was, "They are sold on monthly installments." This testimony clearly warranted the first finding of fact, viz. that the clocks were sold, and that the lease, or instrument so called, was a device contrived to evade the act of 1830, and defeat its salutary provisions.

The findings of fact standing undisturbed, there is but one question left, and that a question of law. Is the act of 1830 constitutional? It is not alleged that it violates any provision of the constitution of this state, but it is said that it violates the constitution of the United States, because it interferes with interstate commerce. But how does it interfere with interstate commerce? It is a part of a system of police legislation beginning as early as 1784, directed against the business of peddling, because of the fraud and crime connected with it. The act of 1784 (2 Smith's Laws, p. 99), in its preamble, recites the mischief requiring a remedy thus: "Whereas many idle and vagrant persons may come into this state, and under pretence of being hawkers and pedlars, may greatly impose upon many persons in the quality and price of goods, and also may commit felonies and other misdemeanors; for preventing such inconveniences and evil practices, and to the intent that no person may be admitted to follow the business of hawkers and pedlars within this state, but those who are of known honesty and civil behavior"; and then follow the provisions of the statute requiring proof of good moral character, and the payment of a license fee by the applicant. As new branches of this peripatetic commerce have sprung up, the legislature has extended the prohibition of the act of 1784 to them. As early as 1830 the peddling of worthless clocks became an evil of sufficient magnitude to attract the attention of the legislature; and in that year the act now before us was passed, requiring all persons, resident or nonresident, desiring to embark in the business, to make proof before the court of quarter sessions of their good moral character, and to obtain a license authorizing them to peddle clocks. The purpose of the act was to secure some measure of protection for the citizens of the commonwealth against the frauds practiced upon them by strangers, who had no place of business in the state, and who, when wanted to answer for their cheats and crimes, were safely beyond the reach of process. This court has uniformly asserted the validity of such legislation as a reasonable and proper exercise of the police power, and we do not propose to travel over the argument again in this case.

It is urged that the act is a trade regulation, like the ordinance of Sayre borough, considered in Borough of Sayre v. Phillips, 148 Pa. St. 482, 24 Atl. 76. But this statute

is not directed against certain persons engaged in peddling clocks. It is directed against all persons. It does not distinguish between the citizens of different subdivisions of this state, or between citizens of Pennsylvania and those of any other state. It is directed against the business of peddling clocks, by whomsoever undertaken. It does not, however, prohibit the business, but regulates it. The regulation is reasonable. It is impartial in its operation. It is general in its application. It meets the tests required by Millerstown Borough v. Bell, 123 Pa. St. 151, 16 Atl. 612; by Sayre Borough v. Phillips, 148 Pa. St. 482, 24 Atl. 76; and by Welton v. State, 91 U. S. 275. In the recent case of Brennan v. City of Titusville, 22 Atl. 893, the judgment of this court was reversed by the supreme court of the United States (14 Sup. Ct.829), on the ground that the ordinance upon which the prosecution rested was not a police, but a trade, regulation; but it was said in that case that, "by virtue of its jurisdiction over persons and property within its limits, a state may provide for the security of the lives, limbs, health, and comfort of persons, and the protection of property so situated," subject to the qualification that a "subject-matter which has been confided exclusively to congress by the constitution is not within the police power of the state, unless placed there by congressional action." We submit with great respect that the control of no branch of retail trade has been confided exclusively to congress by the constitution, and that the interstate commerce clause was never intended to do more than keep the great channels of commerce open, and to guard against such obstructions as state custom houses, state inspections, state taxes, and the like, on goods passing from manufacturer or wholesaler in one state to retail dealer or consumer in another.

It must be conceded that these clocks may be sent into this state in manufacturers' packages, and they may be sold in the same packages, under the authority of the interstate commerce clause; but once in this state, and the package opened by the consignee, the disposition of the separate articles at retail is infrastate traffic, and subject to the police regulations that experience may show to be necessary for the protection of citizens in the comfort of their homes and the enjoyment of their property. To deny this power to the states, and to assert that the wandering and unscrupulous adventurers who buy their brass jewelry or worthless clocks on one side of a state line may, as agents of interstate commerce, invade any other state to cheat and defraud its citizens, is to degrade the whole subject, and to create needless friction between the general government and the people of the several states. It is suggested that these clocks, standing on the shelves of purchasers, belong to the Rhode Island corporation still. This overlooks the finding of the court be

low that they were sold. It overlooks the testimony of the general agent of the corpo ration, who says distinctly, "They were sold on monthly installments."

Finally, the general principle that penal statutes are to be strictly construed is appealed to, as a reason for reversing the judgment of the court below. We cannot see its applicability. The statute forbids the peddling of clocks. The defendant was fairly and properly convicted, on the evidence, of violating the statute. He did exactly that thing which the statute commanded him not to do. No matter how strictly the statute may be construed, he has been found guilty of violating it, and this finding is abundantly supported by the testimony. He should therefore suffer the penalty he has incurred. If any vestiges of the police power of the states remain to them for the protection of the property or of the comfort of the people, we must think the statute now before us is a proper exercise of that power, and that the states do not invade the jurisdiction of congress when they seek to regulate a business conducted, in the language of the preamble to the peddler's act, by "idle and vagrant persons," and in a manner that does "greatly impose on many persons in the quality and price of goods," and which results in the commission by these irrepressible vagrants of "felonies and other misdemeanors." We cannot bring ourselves to doubt the validity of the statute of February 6, 1830, or the justice of the conviction and judgment appealed from. The judgment is affirmed.

COMMONWEALTH v. COON.

(Supreme Court of Pennsylvania. Jan. 7, 1895.)

Appeal from court of quarter sessions, Alle gheny county.

Jacob Coon was convicted of peddling clocks without a license, and appeals. Affirmed.

J. W. Kinnear and Shiras & Dickey, for appellant. A. B. Stevenson, for the Commonwealth.

WILLIAMS, J. This case is ruled by Com. v. Harmel, 30 Atl. 1036; and for the reasons given in the opinion in that case, and filed herewith, the assignments of error are overruled, and the judgment is affirmed.

CONGER et al. v. NATIONAL TRANSP. CO. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

OIL LEASE-FORFEITURE-LIABILITY FOR RENT. A five-year oil lease provided that the lessee should complete a well within a year, or pay an annual rental until it did so; and that, if it failed to make any of the payments within 10 days after the time specified, the lease should be void, and neither party, after such failure, should have a right of action by reason of the breach. Held, that the failure of the lessee to make such payments did not relieve it of liability for the rent, or prevent the lessor from maintaining an action therefor.

Appeal from court of common pleas, Allegheny county.

Action by H. H. Conger and others, executors of the estate of David Conger, deceased, and Oliver Conger, against the National Transportation Company, to recover rent alleged to be due on an oil lease to defendant executed by deceased and Oliver Conger. From a judgment for plaintiffs, defendant appeals. Affirmed.

The lease required the lessee to complete one well within 12 months from the date thereof, or, in default, to pay to plaintiffs the sum of $350, for yearly delay in completing | the well, on the 17th day of July, 1891, and annually thereafter, on that date, until the said well should be completed. The lease also contained this clause: "A failure on the part of the second parties to make any of the payments within ten days after the time hereinbefore stated, and in manner provided for, renders this lease null and void, and to remain without effect between the parties hereto, and it can be renewed only by mutual consent; and no right of any action shall, after such failure, accrue to either party by reason of the breach of any promise or agreement herein contained." Defendant never entered upon nor drilled a well on the premises, and paid no rental.

W. B. Rodgers, for appellant. McIlvain & Wurzell, for appellees.

S. A. Will, for appellant. Burleigh & Harbison, for appellees.

STERRETT, C. J. It is admitted that Patrick McMullen, whom both parties recognize as the common source of title, died, seised of the lot in controversy, October 19, 1892, and that by his last will, dated October 1, 1890, and probated October 29, 1892, he devised said lot as follows: "I give and devise my residence on Brownsville avenue, with lot 37 feet front by 120 feet deep, *** valued at $3,000, to my daughter, Alice Walsh, and my sons, Edward McMullen and Joseph McMullen, to be divided in shares, thus: Alice, $1,200; Edward, $800; and Joseph, $1,000,-to hold to themselves, their heirs and assigns, forever; provided, that my daughter, Alice Walsh, may, at her option, within five years of my death, purchase the shares of Edward and Joseph, named in this item; price not exceeding the amount bequeathed to each." This action was brought to recover possession of the alleged four-fifteenths interest of Edward McMullen in the lot devised as aforesaid, which plaintiff claimed to have acquired by purchase at sheriff's sale on an execution issued November 1, 1892, on a judgment entered against Edward McMullen in his father's lifetime, and levied same day on his interest in said lot. It is conceded that plaintiff had no lien on said interest prior to November 1, 1892, when he caused the execution to be issued and levy made. It therefore follows that, if the interest of Edward McMullen under his father's will was legal

BAYER v. WALSH et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

EXECUTION RIGHTS OF THIRD PERSON EXERCISING OPTION UNDER WILL.

Ten days after the death of P., his will was probated, giving a lot, therein valued at $3,000, to his children, A., E., and J., to be divided in shares,-to A., $1,200; to E., $800; and to J., $1,000,-A. to have the right, within five years, to purchase the shares of E. and J.; price not to exceed the amount bequeathed to each. On the same day, A. exercised her option to take E.'s share, paying him the $800, and taking receipts therefor. Held, that A. was thereby completely invested with title to E.'s share, taking it under the will, but that, even if the transaction be considered a purchase, a judgment creditor of E. could not hold such interest under an execution thereafter issued, and levied thereon.

Appeal from court of common pleas, Allegheny county.

Ejectment by Charles F. Bayer against Patrick Walsh and others. From a judgment on a verdict directed for defendants, plaintiff appeals. Affirmed.

plaintiff acquired nothing by virtue of the said sale and sheriff's deed. In substance, that was the defense relied on by the defendants. Their contention was that, after her father's death, Mrs. Walsh determined to exercise the option given to her by the will, to take her brother Edward's interest in the lot on the terms and conditions therein expressed; that her election to do so was fully consummated on October 31, 1892, by payment of the $800, acceptance of the same by Edward, and giving the receipts put in evidence. There was no room for any doubt as to the facts on which this defense is predicated. They were clearly and conclusively proved by witnesses whose credibility was unquestioned, and whose testimony was not controverted, or in any degree affected, by any evidence in the cause. The controlling facts having been thus established, the learned trial judge affirmed defendants' first point, and directed a verdict in their favor. In this, we are not prepared to say there was any error. Mrs. Walsh had an undoubted right to exercise the option given her by the will. That she did exercise it, and fully comply with the terms thereof, before the levy was made, cannot be seriously doubted. Having done so, she was as completely invested with title to the four-fifteenths in

question as she was with the six-fifteenth 1 interest directly devised to her. As to both, she took under the provisions of her father's will; the one directly, and the other by electing to take, and paying the sum named in the will. The transaction was in no sense a purchase from Edward. That would imply consent on his part, which, under the terms of the will, was wholly unnecessary. It was for Mrs. Walsh, and for her alone, to determine whether she would exercise the option or not. But assuming, for the sake of argument, that the transaction was a purchase of Edward's interest in the lot, the plaintiff could not be permitted to recover, as against a complete equitable title in Mrs. Walsh, acquired by the purchase, and payment of the consideration money, before any lien attached by virtue of the levy or otherwise. Under our system of administering equity in commonlaw actions, the defendants might well rely on an outstanding equitable title in Mrs. Walsh to the four-fifteenths interest in controversy. No trial judge should sustain a verdict in favor of the plaintiff in the face of such conclusive proof in support of the defense as was given in this case. We find no error in the record that requires a reversal of the judgment. Judgment affirmed.

PARK FIRE CLAY CO. v. OTT et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

SALE OF PAVING BRICK

APPOINTMENT OF INSPECTOR-WRONGFUL REFUSAL TO APPROVE BRICK-EFFECT.

1. In an action for the price of paving brick, it appeared that defendants had a contract to pave the streets of a certain borough; that the contract required them to use plaintiffs' bricks: that a street committee representing the borough complained to plaintiffs of the quality of bricks furnished; and that plaintiffs and the committee agreed that an inspector of the brick should be appointed. Held, that though such inspector, in disregard of his duty, threw out good brick, plaintiffs were bound by his action.

2. In such action, testimony as to what occurred between plaintiffs and the borough authorities before the contract was awarded to defendants was admissible, without being limited to show the quality of the bricks to be furnished.

Appeal from court of common pleas, Allegheny county.

Action by James I. Park and others, partners trading under the firm name of the Park Fire Clay Company, against Charles Ott and Matt Ott, partners trading under the firm name of Ott Bros., to recover the price of paving brick sold and delivered by plaintiffs to defendants. From a judgment for plaintiffs, defendants appeal. Reversed.

J. H. White and J. S. & E. G. Ferguson, for appellants. Wm. G. Guiler and Lewis McMullen, for appellees.

FELL, J. By the terms of the contract entered into by the parties to this action, the plaintiffs were to furnish the defendants with 900,000 paving bricks, at an agreed price, and of a stipulated quality and size. The action was to recover for 170,000 bricks furnished and accepted, and for the loss sustained by the refusal of the defendants to receive the balance. The contract called for "No. 1 paving bricks," and the main contention at the trial was as to the quality of the bricks tendered. The bricks were to be used in paving streets in Uniontown, and the contract should be considered as having been made with reference to that use and to the previous action of the borough authorities upon the subject. Before awarding the contract for paving the streets, the borough council procured, from a number of mauufacturers, samples of paving bricks, with the prices at which they would be furnished, and finally selected those made by the plaintiffs as best adapted to their purpose; and the contract for paving made with the defendants required the use of these bricks. When the plaintiffs entered into the contract with the defendants to furnish bricks, they knew that the contract for paving called for the use of their bricks, and that the selection of these was based upon the samples furnished by them to the borough authorities. A street committee represented the borough in the supervision of the work, and had the power, conferred by the paving contract, to determine finally between the defendants and the borough all questions as to the quality of the work done. Differences arose between this committee and the plaintiffs as to the bricks furnished. It was alleged that the plaintiffs, after receiving complaints from members of the committee, agreed with them that an inspector should be appointed. This was denied by the plaintiffs, and, in commenting upon the issue of fact thus raised, the learned judge used the language which constitutes the first assignment of error. The whole charge upon this point should, however, be considered in explana tion of the part excepted to. It was said: "If Mr. Park made an agreement there that an inspector should be put on, and that whatever bricks were not fit should be thrown out, then he would be bound by it; but it would not follow from the mere fact that the inspector threw the bricks out that he would be bound by it. If good bricks were thrown out by the inspector, then he would be entitled to pay for them. He, of course, could make an agreement by which he would be bound absolutely by the judgment of the inspector. If he had agreed to submit to the judgment of the inspector, and take back whatever bricks the inspector would not pass, then, as a matter of course, he would be bound by it; but I recollect no testimony that goes to that extent. The testimony in the case is to the effect (he denying the allegation, of course) that it was agreed that