right of the executor and his assignee be impaired thereby. Their right to a first lien for whatever is due and payable from Mrs. Stryker in excess of her legacy is superior to any supposed equity of this character. The holders of the second mortgage loaned their money with the record before them. It must be assumed they anticipated this very element of uncertainty, and took the risk of it. The only relief they can have is through the orphans' court of Lycoming county. That court has full equity powers in the premises. Although this case is complicated somewhat by the record of the second mortgage and the assignment of the first, yet, the equities of both parties being now determined by this decree, the case stands as clear of embarrassment as if the irst mortgage was only for the difference between her legacy and the amount due on the mortgage; and, in so declaring the equity, jurisdiction of the common pleas of Union county is exhausted. Whatever risk is incident to bidding on the property before the exact amount payable to the executor or his assignee is determined must be assumed by these plaintiffs.

The decree of the court below is affirmed, but so far modified as to vacate the general order postponing the lien of the first mortgage in favor of the second. The lien of the first must continue for whatever amount is still unpaid.

In re CITY AVENUE AND GERMANTOWN BRIDGE.

Appeal of WILLIAMS et al. (Supreme Court of Pennsylvania. Oct. 22, 1894.)

COUNTIES-ACQUISITION OF BRIDGES PHILADEL PHIA COUNTY.

Act May 8, 1876, authorizing the several counties of the state to acquire bridges and abolish tolls thereon, applies to the county of Philadelphia, though the city and county of Philadelphia are consolidated.

Appeal from court of quarter sessions, Philadelphia county.

Petition by David E. Williams and others for the acquisition of the City Avenue and Germantown bridge by the county of Philadelphia. From an order dismissing the proceedings, petitioners appeal. Reversed.

John S. Gerhard and John G. Johnson, for appellants. E. Spencer Miller, Asst. City Sol., and Chas. F. Warwick, City Sol., for appellee.

MCCOLLUM, J. The learned judge of the court of quarter sessions thought the act of May 8, 1876, "authorizing the acquisition by the several counties of this commonwealth, for the use of the county, of bridges erected over rivers, creeks and rivulets, and for the abolition of tolls thereon," was not applicable

to Philadelphia county, because the legislature did not specifically declare it to be so. This thought appears to have had its origin in a supposition that the legislature, having knowledge of the change effected by the consolidation act, would have said that the act of May 8, 1876, was applicable to Philadelphia, if it was intended that it should be. But Philadelphia then was, and still is, one of "the several counties of this commonwealth," and, inasmuch as the act in question relates to the acquisition of bridges by them, there is no room on the face of it for an inference which denies to any county the privileges and powers conferred by it. An intention to exclude Philadelphia county cannot be inferred or implied from the nonexclusion of it, or from anything in the title or body of the act. What valid reason appeared to the legislature for withholding from Philadelphia county the power granted to other counties in relation to the acquisition of toll bridges? It was not, by any previous legislation, clothed with this power, and the city of Philadelphia was not. It was qualified to exercise the power in conformity with the provisions of the act. Why, in the presence of these facts, should it be assumed that the legislature intended to exclude Philadelphia county when it was obvious that such exclusion would materially abridge the powers and privileges of counties adjoining it in respect to the acquisition of bridges over streams constituting boundary lines between counties? We cannot find in the legislation or in the conditions then existing any satisfactory answer to this question in accord with the conclusion reached by the learned judge of the court below. It is our opinion, therefore, that the act of May 8, 1876, was intended to apply to all the counties of the commonwealth. No other view can be taken of it which is consistent with its title or its provisions. In this view of the case we do not deem it necessary to determine whether other acts in relation to counties, to which the counsel for the appellee have called our attention, are or are not applicable to Philadelphia county, or whether the exclusion of it would have condemned the act in question as violative of the constitution. What we have said in reference to the act of May 8, 1876, extends and applies to its supplements. It is not claimed that this legislation is in any respect affected by the act of May 26, 1893, under which it is possible that the city of Philadelphia may condemn a bridge for public use. The system provided by the act of 1876 and its supplements still remains, and is applicable to Philadelphia county. It follows from these views that the learned court below erred in making absolute the rule to set aside the proceedings in this case. It had ju risdiction of the subject, and should have heard and disposed of the application on its merits. The order setting aside the proceedings is reversed, and a procedendo awarded.

In re WEINMANN'S ESTATE.
Appeal of LEA.

(Suprerae Court of Pennsylvania. Oct. 22, 1894.)

ASSIGNMENT FOR BENEFIT OF CREDITORS - DEBTS -UNACCRUED RENTS-ACCEPTANCE OF LEASE.

1. Rent accruing after an assignment is not a debt entitled to share in the assets of the assigned estate.

2. Mere possession of leased premises by an assignee for a short time, while disposing of merchandise therein, is insufficient to show an acceptance of the lease by him.

Appeal from court of common pleas, Philadelphia county.

Appeal by Henry C. Lea from the disallowance of a claim against the assigned estate of Charles Weinmann & Co. Affirmed.

J. Howard Gendell, for appellant. Jacob Singer and Emanuel Furth, for appellees.

MCCOLLUM, J. The principal question raised by this appeal is whether, on the distribution of an estate assigned by a debtor for the benefit of his creditors, rent accruing after the assignment is on the footing of debts existing at the time of it. It is well settled in Pennsylvania that by the assignment the creditors become equitable owners of the property embraced in it, to the extent of the assignor's indebtedness to them. Their rights are fixed as of the date of the assignment, and their ownership of the property is in the proportion that their respective debts bear to the whole indebtedness. Miller's Appeal, 35 Pa. St. 481; Brough's Estate, 71 Pa. St. 460; Dean's Appeal, 98 Pa. St. 101; and Jordan's Appeal, 107 Pa. St. 75. That rent not accrued or demandable at the time of the assignment is not a debt which is entitled to participate in the distribution of the trust estate appears to be equally well settled. Bosler v. Kuhn, 8 Watts & S. 183, and Sweatman's Appeal, 150 Pa. St. 369, 24 Atl. 617. In the case last cited the learned court below held that rent accruing subsequent to the assignment was not payable out of the trust estate, and this court, referring to the decision, said of it, "If the appellant's claim was for rent to fall due in the future, the action of the court below could not be successfully attacked." In Re Snyder, 8 Phila. 303, it was plainly ruled that rent which accrued after the assignment was not a debt for which the assigned estate was liable. It is true that was a common pleas decision, acquiesced in by the litigants and their counsel, and it is principally valuable as showing the judicial and professional thought on the subject at that time. No decision of this court at variance with these principles has been cited, and our research in this line has not resulted in the discovery of one. In fact, they are not in conflict with the citations made by the learned counsel for the appellant from the text-books and Reports. The most of these citations are claimed by him as affording support to the proposition that the as

signee elected to accept the lease, and thereby bound the estate for the rents accruing during the term.

It being clear, under the cases we have referred to, that without an acceptance of the lease by the assignee the assigned estate was not liable for subsequently accruing rents, it remains to inquire and consider whether the estate became bound for such rent by any act or agreement of the assignee in respect to the demised premises. It should be borne in mind, in this connection, that any action by the assignee which rendered the estate liable for rent to fall due in the future would introduce the lessor as an equitable owner of the assigned property, and thus place him in a position in respect to it which he did not acquire by virtue of the deed of trust. We have already seen that under and by force of this deed none but the then existing creditors of the assignor acquired an equitable ownership of or interest in the assigned estate, and that the lessor, as to subsequently accruing rent, was not such a creditor. If it be conceded that the assignee, by virtue of his appointment, had the power to accomplish such a result, it will be admitted, we think, that the burden of showing that he did so was on the lessor, who claimed rights which the deed did not confer upon him. In other words, as the lessor was seeking to enforce a claim based on an alleged election by the assignee to hold the lease for the benefit and at the expense of the estate, it was incumbent on him to prove by clear and satisfactory evidence an express agreement by the assignee to so hold it, or conduct on the part of the latter from which there was a plain and necessary implication that he had elected to do so. It is not pretended that there was an express agreement by the assignee in this case to accept the lease as an asset of the estate, and thereby bind the latter for the subsequently accruing rent. Aside from the bare possession of the leased premises a comparatively brief time for the purpose of disposing of the stock of merchandise which constituted a large share of the assigned estate, and was in the leased stores at the time of the assignment, there was absolutely nothing to indicate an acceptance of the lease by the assignee. For the time he occupied the premises for this purpose he paid the rent, and the payment so made was in the nature of expenses incurred in the administration of the trust, and he was entitled to credit for it as such in his account. The nature and purpose of his possession were known to the lessor, and it negatived, rather than warranted, an inference of an intention to charge the estate with the rent which he now seeks to recover from the fund appropriated by the assignment to the claims of the then existing creditors of the assignor. It certainly was not sufficient to support the appellant's present contention. The specifications of error are overruled. Decree affirmed and appeal dismissed at the cost of the appellant.

MEANS v. GRIDLEY. (Supreme Court of Pennsylvania. Oct. 22, 1894.)

TRIAL PRACTICE-QUESTIONS FOR JURY-OBJECTIONS WAIVED-REQUESTS TO CHARGE.

1. Where a party requests submission of a question to the jury, he cannot complain that there was no evidence to warrant such submission.

2. Requests to charge, which assume controverted facts as to which the evidence is conflicting, are properly refused.

Appeal from court of common pleas, Bradford county.

Action by Frank E. Means, executor of John F. Means, deceased, against E. C. Gridley, for a money judgment. There was judgment for plaintiff, from which defendant appeals. Affirmed.

Mr.

A few years before the events narrated in this case took place, Mr. Benjamin S. Bentley, of Williamsport, owned a tract of land in the township of Wysox, in the county of Bradford, and across the river from Towanda. This tract of land Mr. Bentley sold to a man by the name of William P. Wallace, under a contract, on which some payments were made by Wallace, but a portion of the purchase money remaining unpaid, no deed was ever given by Bentley to Wallace. Wallace erected on this land, after his contract with Bentley, a building for the manufacture of axes. To carry on such manufacture, Wallace bought of a firm in Towanda an engine and a boiler, and put them in the building he had erected on this land contracted of Bentley, and used them in carrying on his business there. Wallace having failed to pay Means, Rockwell & Co. for this engine and boiler, they filed a mechanic's lien against them. On that mechanic's lien the said boiler and engine were sold at sheriff's sale, and bought by John F. Means, the plaintiff. Mr. Bentley, living at Williamsport, had as his agent here Mr. E. C. Gridley, the defendant, who later took into partnership with him Mr. S. R. Payne, and they then acted as the agents of said Bentley. They were acting as such agents on the 1st of June, 1882, when Mr. Means proposed that they had better bring the said engine and boiler over to Towanda, and have them fixed up, and sell them. This was assented to by the agent of Bentley, and they were accordingly removed to the foundry and repaired. Both Means and the agent of Bentley tried to make a sale of said engine after it was repaired, and it was finally sold by Mr. Gridley, in January, 1884, to a man named Edward Allis, for the price of $240, and the money was paid to said Gridley, the agent of Mr. Bentley. Subsequently Mr. Gridley settled with the Bentley estate (Mr. Bentley having died on the 6th day of March, 1882), and paid over to said estate all the proceeds of said sale, less the agents' charges and expenses of making the sale. No part of the money realized from this sale was

paid to Means by the agent of Bentley, and the plaintiff brought this suit against him to recover one-half of that money, claiming that he owned a half interest in said engine, and was entitled to one-half the money realized therefrom. On the 19th of January, 1877, said Means and wife conveyed by deed to said Bentley the property in Wysox, known as the "Axe Factory Property;" but Means alleged on the trial that said deed was made to Bentley to enable him to make a sale of the property to some party in Williamsport, who was talking of buying it. Said sale was not made.

S. W. & Wm. Little and D. C. DeWitt, for appellant. D'A. Overton and John C. Ingham, for appellee.

MCCOLLUM, J. The learned judge of the court below, in accordance with the request of the learned counsel for the appellant, charged as follows: "If the jury believe that B. S. Bentley held this property as trustee to sell and dispose of the same, and as such trustee employed the defendant as his agent to make sale of said property, and said agent did sell the same and account to his principal, the trustee, for the proceeds thereof, then the plaintiff in this case cannot recover, and your verdict should be for the defendant." As the verdict was in favor of the plaintiff, it may be considered as an established fact in the case that Bentley was not a trustee to sell and dispose of the engine, and, as the question whether he was such was referred to the jury in compliance with the request of the defendant's counsel, they cannot be heard to allege that there was no evidence which warranted its submission. But we do not think the learned counsel for the appellant made any mistake in soliciting the instruction we have quoted. They realized that the defense to the action was based on the proposition that Bentley was a trustee to sell the engine, and that Gridley sold it as his agent, and accounted to him for the proceeds of the sale. It was therefore entirely proper to ask instructions in regard to the effect of these facts if established to the satisfaction of the jury. There is no reasonable ground for criticism of the charge in this case if the evidence in it was sufficient to warrant a finding that Means was the owner of an undivided one-half of the engine which Gridley sold to Allis. Independent of the recognition by the learned counsel for the appellant of the existence of such evidence, we have the direct and positive testimony of Means, corroborated by the postal card from Bentley on the 28th of January, 1879, the letter of George G. Walker, executor of Bentley's estate, on the 11th of November, 1887, and the acts and declarations of Gridley in connection with the repair and sale of the engine, to the effect that Means was the owner of an undivided one-half of it, and that Bentley was not a trustee for him in the sale of it. In the presence of this

testimony, the learned court, if requested to do so, could not have withdrawn from the jury the question of Means' interest in the property, or of Bentley's relations to it.

The appellant's second point could not be affirmed, because it assumed that Bentley was a trustee for Means in the sale of the engine, when, as we have seen, the question whether he was such a trustee was exclusively for the jury upon the evidence in the 'case. We do not think that there was any error in the refusal of the learned court to affirm the appellant's third and fourth points. They appear to have been based on the theory that Bentley was a general trustee for Means in all matters pertaining to the axe factory, and that the latter was chargeable with one-half of the expenditures incurred by the former in connection with the management and sale of it. But whether Bentley possessed the powers implied in the points was a question for the jury upon the evidence, and it would have been plain error for the court to assume that he had, and base an instruction on such assumption. The specifications of error are overruled. Judgment affirmed.

CARTER v. PRODUCERS' & REFINERS' OIL CO., Limited, et al. (Supreme Court of Pennsylvania. Oct. 22, 1894.)

JOINT-STOCK COMPANIES ULTRA VIRES ACTS — SALE OF PROPERTY ESSENTIAL TO ITS BUSINESS ---INJUNCTION.

1. Where substantially all the capital of a joint-stock association is invested in a pipe line necessary in the transaction of the company's business of transporting and dealing in oil, a sale thereof in exchange for shares in another corporation is ultra vires, and may be enjoined at the instance of a single dissenting stockholder.

2. Where a joint-stock association owns stock in another association, a stockholder of the former may maintain a bill to enjoin ultra vires acts by the latter.

Appeal from court of common pleas, Crawford county; John J. Henderson, Judge.

Bill in equity by John J. Carter against the Producers' & Refiners' Oil Company, Limited, and its managers, to enjoin them from selling to the United States Pipe-Line Company property essential to the transaction of its business. Appeal by defendants from an order continuing a preliminary injunction.

Affirmed.

The following is the opinion of the court below:

"A partnership association entitled Producers' Oil Company, Limited, was formed on the 4th day of June, 1891, under the provisions of the act of June 2, 1874 (P. L. 271), with a capital stock of $600,000, divided into shares of $10 each, of which capital complainant owns $3,000. The business to be conducted was stated in the articles of association to be 'the producing, storing, buying, selling, piping, and transporting of petrole

um, crude and refined, and the products of petroleum, and the acquisition and holding of such property, real, personal, or mixed, as may be necessary for these purposes, or any of them, or incidental or auxiliary thereto.' The duration of the partnership was fixed at twenty years. The company has five managers. The company entered into the business of buying, selling, and transporting oil in Allegheny and Washington counties, and for the purpose of promoting the business of the company constructed a pipe line from a portion of the Allegheny and Washington county oil field to Coraopolis, on the Ohio river. The business of the company not proving entirely satisfactory to the management, a plan was developed in connection with refiners of oil in Venango and Crawford counties for the construction of a pipe line from Coraopolis to Titusville, via Reno and Oil City. To accomplish this undertaking, and for the other purposes stated in the articles of association, another partnership association was formed on the 13th day of May, 1892, called the Producers' & Refiners' Oil Company, Limited, with a capital stock of $250,000, divided into shares of $100 each; the duration of which association was fixed at 20 years from June 4, 1892. Five managers of the association were chosen. Of the capital of the association last named the Producers' Oil Company, Limited, contributed $170,000. Substantially all of the capital of the Producers' & Refiners' Oil Company, Limited, was invested in right of way, pipe lines, tanks, telegraph lines, etc., necessary for the construction and operation of the pipe line referred to from Coraopolis to Titusville. After the orgauization of the lastnamed association, a lease was executed to it by the Producers' Oil Company, Limited, of the tanks and pipe lines of the latter company. J. W. Lee, George H. Torrey, and A. D. Wood are managers in each of the associations.

"A corporation known as the United States Pipe-Line Company has a system of pipe lines in operation from Oil City and Bradford to Wilkes Barre. On the 14th of December, 1893, the board of managers of the Producers' & Refiners' Oil Company, Limited, at a meeting then held, adopted the following resolution: 'Resolved, that whereas a combination of the several independent pipe lines doing business in the Pennsylvania oil field in a single organization is highly desirable, therefore resolved, that the managers of this company will take into consideration at any time the question of uniting the several companies, in any feasible plan mutually satisfactory to all parties concerned.' And on the 27th of January, 1894, at a meeting of the board of managers of the said association, another resolution was passed, reciting that of December 14, 1893, and continuing as follows: 'Now, therefore, to carry out the purpose expressed in the above resolution, we hereby authorize the following proposition