the faith of his silence and presumed assent, the law will imply an actual assent: Chitty on Contracts, page 61. We regard this to be a parol license given to the respondent, upon the faith of which he leased a portion of this property and expended a considerable amount of money in adapting it to his purpose. This would constitute at law a good defence: See Rerick vs. Kern, 14 S. & R. 267. There is no evidence that the sign is of unusual size, or that the respondent has done any more than by a fair construction of this license he had a right to do. The application for an injunction is therefore refused. R. P. White, Esq., for defendant. [Leg. Int., Vol. 32, p. 150., In the matter of the Petition of Citizens for a Jury to report to the Court for or against the opening and straightening of GIRARD AVENUE THROUGH GIRARD COLLEGE GROUNDS. As the jury appointed to report on the opening and straightening of Girard avenue could not agree on a report, the court have the power to appoint another jury. Opinion delivered April 24, 1875, by ALLISON, P. J.-This petition recites the petition filed in December, 1873, in the Common Pleas, to report for or against the opening and straightening of Girard avenue, and the opening of Twenty-second street through Girard College grounds. The fact is stated, that the jury reported against the opening of Twenty-second street, and were equally divided in opinion as to Girard avenue. The petitioners pray for a jury to report to the court, for or against opening or straightening said avenue through the grounds of the college. This is resisted, for the reason, that the power of the court is exhausted; that the act of the 21st of June, 1873, being a special act, giving to the Court of Common Pleas authority to appoint a jury of view, and the power of appointment having been exercised, there can be no other jury after confirmation of the report. That the jurisdiction is exceptional and peculiar, must be admitted; the Court of Quarter Sessions have general jurisdiction over roads and streets, and have had from the early settlement of the province down to the present time. In Philadelphia there have been no more than two instances, of which we have knowledge, in which power over streets was attempted to be given to the Common Pleas; but this is no reason against the exercise of the power by this court, if the Legislature, having entire control of the subject, give to it jurisdiction; and so far as the execution of the power was concerned, in 1873, it was, as between the Quarter Sessions and the Common Pleas, a difference of designation of court more than of substance. The same judges constituting both courts, and passing upon questions at the same sitting in each court, entitling their proceedings as of the court to which it properly belonged. But the question upon which we are required to pass under the present petition and objections, does not so much relate to the subject of jurisdiction, touching the power to appoint a second jury after a jury first appointed had performed the duties, which devolved upon them under the act of 1873, as it does to the consideration of the case as it now stands before us, upon a failure of the jury appointed under the first petition to agree upon a finding. The act says, the jury shall report to the court for or against the opening and straightening of Girard avenue through the college grounds; they have done neither, being unable to agree by a majority of their number upon one alternative or the other. The act directs the court upon reaching a judgment that these streets might be opened under the will of Stephen Girard and existing legislation, essential to the faithful execution of the trusts, to appoint a jury to report to the court for or against the opening and straightening of the avenue, and the opening of Twenty-second street. The act further directs, that the appointment should be made in accordance with existing laws; what existing laws? obviously the general laws, giving jurisdiction and power to the Quarter Sessions; there were then, and are now, no other laws in force upon the subject; this, therefore, can be regarded, it seems to us, in no other light, except that of making applicable to these two streets by petition in the Common Pleas, the general road laws then in force, so far, at least, as it was necessary to invoke their aid in carrying out the conditional directions of the act. Under this view of the subject how does the case stand before the court? A jury appointed to do one or the other of two things specified in the act, and a report that they have done neither, because they have found it impossible to come to such an agreement as is contemplated by the law, which requires that at least five of the six viewers shall examine and view, and four of them must agree to make a report; the act declares, that a view which may be had for any purpose, shall not be good and valid," unless four of the actual viewers concur in the report. We have, therefore, a return which, as to Girard avenue, was not a good or valid report; it is rather to be regarded in its application to the avenue, as no report at all; it is but a statement of the fact that they were not able to report, because four of their number could not concur. It is very clear to us, that the petitioners are entitled to a jury, who will make a legal report to the court; it is in no respect different from any other mistrial, which is no trial at all, and that upon general principles applicable to analogous cases, as well as the unquestioned power under the general road law, another jury ought to be appointed. This, indeed, would seem to have been in the mind of the Legislature when the act was passed. After directing the court to appoint a jury, who are to make report within sixty days after their appointment, it contains the provision, that upon the confirmation of the report of any such jury, directing the aforesaid Girard avenue and Twenty-second street, to be opened, etc. It will be observed, that the act does not refer to the confirmation of the report of a particular jury, to be appointed, or said jury, or such jury, but any such jury. This is to be taken in connection with the fact, that the act contemplates ulterior proceedings to assers damages by a jury, if a report in favor of opening should be confirmed; which looks very much as if the whole proceeding, in every stage, should conform to the general road laws, applicable to proceedings in the Quarter Sessions: Esterley's Appeal, 4 P. F. S. 192; McMullin vs. McCreary, Id. 230, and Wright vs. Davenport, 16 Id. 148, are all relied upon by the objectors to the appointment of the jury, as supporting their view, that the court is without jurisdiction. The first two cases are authority merely for the general principle, that an act which is out of the course of the common law, ought to be strictly construed: Wright vs. Davenport, it is claimed, is almost identical with the present case. It differs in two very material respects from that which is now before us. First, it created a special tribunal of three auditors to report upon the honest or fraudulent management of an insolvent bank, after an assignment, and is unlike the act of 1873, giving power to a court of extensive general jurisdiction, the judges of which possess like general authority, when holding a Court of Quarter Sessions; and in the second place, the special tribunal or board of auditors performed the duties and exercised the power conferred by the act, they made a valid and legal report to the court, by whom they were appointed; this, as we have seen, the jury under the first petition as to Girard avenue, did not do. We do not, for these reasons, regard the case of Wright vs. Davenport as ruling the question before us. We dismiss the exceptions, and will appoint the jury for which petitioners pray. John S. Gerhard and E. Spencer Miller, Esqs., for the petitioners. W. H. Rawle, F. C. Brewster, and William A. Porter, Esqs., against the prayer of the petitioners. [Leg. Int., Vol. 32, p. 150.] EDWARD CROSDALE vs. CYRUS CADWALLADER. A fi. fo. was indorsed interest" from December 30, 1873," the facts being that 12 per cent. interest had been paid for that year: Held, that a rule would be granted to correct the said indorsement to "interest from December 30, 1874." The application was made by the terre tenant, and the court held that he was entitled to take credit for the excess of legal interest. Opinion delivered April 24, 1875, by ALLISON, P. J.-This is a rule to show cause why fi. fa., under which real estate of the defendant has been levied upon, should not be indorsed "interest from December 30, 1874," instead of "interest from December 30, 1873." The defendant executed a judgment note for two thousand dollars, in favor of plaintiff, on the 30th of December, 1872, on which is indorsed "interest paid to June 30, 1873," and "interest paid to December 30, 1873." The terre tenants, who take this rule, have received the land levied upon from the defendant by a decree in equity upon a creditor's bill. The ground upon which this rule is taken is, that interest at the rate of 12 per cent. was paid for the use of the money; and that as this was double the amount legally demandable, and having been paid as interest upon the loan, the credit should be carried to the end of 1874 instead of 1873. Upon the argument, the payment of double interest was not denied, and the depositions of plaintiff establish the fact, even if there had been a dispute upon this point. In Fisher vs. Kahlnan, 3 Phila. R. 213, the District Court decided that where usury avoids the contract, the defence is personal to the party to whom the loan was made. But so far as it amounts to a pro tanto failure of consideration, it is very clearly settled that the plaintiff will be enjoined from the recovery of more than the just sum advanced, and lawful interest thereon. A terre tenant was allowed to take defence to a mortgage to the extent to which it could be shown to be usurious; the court say, it seems right, in the case of a purchaser, to show that the security is for more on its face than was actually advanced at the time. In Greene vs. Tyler, 3 Wright, 361, it was held that the owner of a usurious mortgage cannot, even with the consent of the mortgagor, apply partial payments to the unsound part of his mortgage for the purpose of keeping alive that part which is valid, to the prejudice of an existing subsequent mortgagee. The question arose, upon the trial of the feigned issue, upon the application of a subsequent mortgagee, to ascertain how much was due on the first mortgage, and what part of it was founded on usurious consideration. The court below instructed the jury that although the contract was usurious between the parties, yet the plaintiff in the issue could not set it up; but this ruling was reversed upon the principle, that as against the debtor only, the principal debt and legal interest could have been legally demanded, no more could be legally demanded as against the subsequent mortgagee. The question, whether any but the borrower or debtor can set up the defence of usury under the act of May 28, 1858, was made in the case of Verner vs. Carson, 16 P. F. S. 440, but was not passed on by the court. The case is decided on the ground that the judgment was binding and conclusive on the parties until reversed or set aside. This case is relied on by the plaintiff as conclusive against the present application, and if this was an effort, as plaintiff seems to regard it, to impeach his judgment collaterally, he would be justified in asking that the rule taken in this case should be discharged, but we think he misapprehends the pending application. The judgment is not questioned, and is about to be enforced by execution, but there has been payment of interest on the judgment, and the question is, in what amount, and to what time, does the payment extend? The credits indorsed on the back of the note are not conclusive, but may be corrected by the admissions of the parties, or by the proofs taken in support of the application to control the execution, and have it represent the amount due by the payment of interest upon the note. This question of fact the plaintiff would be entitled to have tried by a jury, but he has not asked for an issue, and has been content to have the question of fact decided by the court upon deposi tions. The cases of Fisher vs. Kahlnan, and Greene vs. Tyler, support the terre tenant in his claim to maintain the present application for relief; and as the fact is proved that legal interest up to December 30, 1874, was actually paid by Cyrus Cadwallader, the execution ought not to be allowed to be enforced for a larger amount of interest than is due. Rule absolute. Rufus E. Shapley and William L. Hirst, Esqs., for the rule. [Leg. Int., Vol. 32, p. 179.] BEAVER US. NUTTER. A erected a wall on his own lot and partly on the adjoining lot, which he subsequently purchased; he afterwards sold the built-up lot, reserving the half of the party wall nearest to the vacant lot, and also sold the vacant lot to another person. Held, that A did not thereby dispose of his interest reserved in the wall, as it was a party wall. If the wall had been wholly laid upon the land of the plaintiff, it could not be considered a party wall. In equity. Motion to dissolve special injunction. Opinion delivered May 11, 1875, by ALLISON, P. J.-The contest in this case is over the ownership of a party wall. The plaintiff was the owner of the house and lot mentioned in the bill of complaint, which he conveyed to one Tully, reserving to himself the west party wall. Before his conveyance to Tully, he also owned the adjoining lot or piece of land on the west, which was not built upon, and which he sold and conveyed to Maria L. Rogers, from whom defendant derives title. It was admitted upon the argument though it is not set out in the bill, that at the time when the wall in dispute was built, the vacant lot belonged to a third person, and that Beaver subsequently acquired the lot by purchase. Upon this admitted fact the controversy must be determined in favor of the plaintiff. The wall when it was built was a party wall, built between party and party. The foundations were laid half and half on the lands of adjoining owners, and it was carried up in this way as a party wall in the construction of the house of the plaintiff, who thereby acquired an easement upon the land of his neighbor-the right to use four and a-half inches of his land in the building of his house. This right thus acquired, he continued to enjoy, until he became the owner of the entire lot of ground, including the servitude, which then merged, and for the time being, by unity of title of both properties, was suspended and held in abeyance. The easement was swallowed up in the higher title of the fee of the adjoining lands. Holding both properties in his own right the relation of party and party no longer existed; but did this unity of title extinguish or merely suspend the easement? The principle which answers this question is clearly stated in Gale and Whateley's Law of Easements, 52. "It is true, a man cannot subject one part of his property by an easement, for no man can have an easement in his own property; but he obtains the same object by the exercise of his right of dominion over his property; he has not thereby altered the quality of the two parts of his heritage; and if, after the annexation of peculiar qualities, he aliens one part of it, if the alterations are palpable and manifest, the purchaser takes the land with the qualities which the previous owner attached to it." If the owner of land can create incumbrances in the nature of easements, what is there to prevent him recognizing as subsisting and continuing easements, such as come to him by purchase of the land, which easements were created by former owners? This question was considered in Worne vs. Marsh, 6 Philada. Rep. 33. The authorities bearing on this subject are there considered, and the doctrine established in Keiffer vs. Imhoff, 2 Casey, 442, applied to the case of an easement of an alleyway created upon adjoining properties, both of which |