in this case has been published in one newspaper of general circulation, and in the Legal Intelligencer. The evident object of this requirement is to give notice to the general public of applications, which are matters of general concern, and to give as wide circulation as is consistent with a due regard to expense, it is confined to two newspapers of general circulation. The publication in the Legal Intelligencer, under the act of 1855, is for another purpose, equally important, to wit: to provide one convenient medium in which members of the bar and others interested in any proceedings in the courts, may look for LEGAL NOTICES with certainty. These notices should, therefore, be published in two newspapers of general circulation, as well as the Legal Intelligencer. Again, the notice in this case does not specify the time or place, when and where the application will be made. The act does not seem to contemplate a hearing in court, but before any judge at chambers. The notice should, we think, be so complete, as to enable parties interested, and desiring to object, to do so, without inquiring of every one of the twelve judges of the several Courts of Common Pleas. Approval, for the present, of this charter, must be declined. [Leg. Int., Vol. 32, p. 188.] WRIGHT VS. VICKERS. A sale by the sheriff under proceedings in partition discharges the lien of a mortgage. The act of March 21, 1867, construed. Sei. fa. sur mortgage. Motion for judgment for want of sufficient affidavit of defence. Opinion delivered May 22, 1875, by LUDLOW, P. J.-One of several tenants in common mortgaged his interest in an estate. Before the execution of the mortgage, proceedings in partition had been commenced. These proceedings were subsequently perfected, and as the estate could not be divided, it was under an order of sale sold, by the sheriff, and the question now to be decided is, did the purchasers at the sale take the land divested of the lien of the mortgage? At the first reading, the act of assembly of 26th of March, 1867, 1 Purdon, page 479, p. 111, seems to be very sweeping and decisive of the controversy against the purchasers. If the lien of the mortgage, the subject of this controversy, "shall not be destroyed, or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order or decree of any Orphans' or other court, or of any writ of execution, or otherwise howsoever," then an element of confusion has been introduced into our law, which will render it impracticable, if not 'impossible, to partition an encumbered estate, and will work the grossest injustice to those who are entitled to the protection of the courts. To rescue this statute from a construction which will lead to such results, is not only our object, but our duty. Tenants in common hold by unity of possession. Each, however, has a separate estate, which may be encumbered or sold. Keeping in view the object of a partition, which is the equitable division of an estate among those entitled to it, we must remember the distinction pointed out by Gibson, C. J., in Commonwealth vs. Pool, 6 W. 33, when he said, that "a sale in partition works a conversion of form without a transmutation of essence, and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent.' If this distinction be a sound one, then the sale in partition did not work an equitable conversion, for that conversion is "dependent upon the particular object to be attained by it," and the practical and legal effect of the partition was to designate the precise value of the estate, subject to the lien of the mortgage, and to which it attached. What difficulty is there then in holding, that the share of money belonging to this mortgagor, under these proceedings in partition, is in point of law as much land, although changed in form, as though an allotment had been made, and as such is bound by the lien of this mortgage? Whatever estate the mortgagor had in this land is now gone, but the money made by the sale under the proceedings in partition, represents the share of the mortgagor in the land and its value, and for the purposes of this lien, is to be treated as land. We thus reach a conclusion, which, while it does not disturb the mortgage, accomplishes the object of the act of assembly, and an estate held in common and encumbered, may be partitioned according to the true intent and meaning of the law. We do not consider in the determination of this case, the fact mentioned at the argument, that the share in money made by the sale, and belonging to the mortgagor, will not pay the mortgage debt, and for the reason that the sale measured the value of the estate held by the mortgagor in common with his co-tenants, and certainly the mortgagee is entitled to nothing more. Rule discharged. S. Henry Norris and E. Spencer Miller, Esqs., for rule. [Leg. Int., Vol. 32, p. 239.] In re OREGON OR VINE STREET. An ordinance for the widening of Vine street contained a proviso that the owners of the property should give security that no damages should be entered against the city exceeding $1,000. As this proviso was not complied with, the report was set aside. Exceptions to report of jury of view assessing damages. Opinion delivered June 26, 1875, by LUDLOW, P. J.-Unless we are- prepared to indorse a reckless expenditure of public money, and to inflict serious injury upon the propertyholders of this city, we must, in cases of this nature, exact strict compliance with the law, and when, in any case, we find that the plain provisions of an ordinance have been violated, we must apply a remedy, which will be effective, because it will be radical. Oregon or Vine street had been, in fact, open to the extent of sixty feet for years. No necessity, of either a public or private nature, re quired either the widening or paving of this avenue, and yet its width has been extended by twenty feet, and it has been paved, while damages have been awarded against the city alone for the land taken, etc., to the extent of over $50,000. Under the road law of 1836, a jury of view alone could have ordered this street to be opened, but by the act of 1855 the councils of the city, if "the public exigency" required, may order streets to be opened on three months' notice. In the case now before us, an ordinance was passed directing this street to be opened, but a very important proviso was added to it, to wit: That before the street shall be opened, the owners of the property should, by a bond, give security, that damages against the city should in no case exceed $1,000. The regular three months' notice to property-holders was given, the provision of the ordinance was never complied with, and the result is, that in the very teeth of the law damages to a very large amount have been awarded against the city. It was argued at the bar that the power of councils was limited to the mere declaration of the fact that an exigency existed. While we do not intend now to express an opinion upon the general question, it is clear enough that councils did in this case say, that the exigency did not exist unless the city could be protected against heavy damages, and hence the proviso, so far from being repugnant to the other parts of the law, and hence, under the authorities, became void, and was an essential part of the ordinance, and as such created a condition precedent, without the performance of which the whole ordinance became practically null and void. The only argument which stands in the way of this construction is the one based upon the fact that the city has waived her right to complain, because by virtue of a subsequent ordinance the street was ordered to be and has been actually paved. The answer to all this is, that the propertyy-holders received the three months' notice to open the street, and of the proviso contained in the ordinance, and must have had, in point of law, notice. A duty was cast upon them to prevent the taking of the land by injunction or otherwise, and if they neglected to discharge this duty they cannot claim damages now under the award of this jury. If the whole proceeding has been in point of law void, the owners of the land taken have lost nothing, for they can reclaim it, and how far they will be obliged to pay for the paving in front of their respective. lots is a question which, at this time, and under these exceptions, we are not called upon to settle. We may add, that we are not at all satisfied with the amount of damages awarded, and, on the whole, we have determined to sustain each and all of the exceptions filed of record to the report of this jury. Robert N. Willson and Wm. Grew, Esqs., for city exceptants. Joseph R. Rhoads, Wm. P. Messick, A. A. Grace, George L. Crawford, A. V. Parsons and Jos. A. Clay, Esqs., for exceptions. [Leg. Int., Vol. 32, p. 256.] LEECH vs. BONSALL. A mortgage was made on a large lot of ground, which lot was afterwards subdivided and improved, and sold by the sheriff on proceedings on the mortgage. Held, that the proceeds of each lot should be applied to the payment of the mortgage in equal proportions, although some of the lots brought a larger price than the others. Exceptions to auditor's report. Opinion delivered July 10, 1875, by FINLETTER, J.-The fund in court arises from the sale under a first mortgage of a lot of ground containing in front on Sixty-third street 200 feet. After the mortgage was made, the property, being unimproved, was divided into four lots of fifty feet each fronting on Sixtythird street, of equal value. They were subsequently improved by the several owners. The property was sold in four lots, as follows: No. 1 for $1,250; No. 2 for $1,250; No. 3 for $50; No. 4 for $2,000. No. 3 is practically out of the question here raised. The auditor charged each lot with one-third of the mortgage and awarded the difference between that and the amount the lot brought at the sale to the owner. It is contended by the exceptant that each lot should have been charged with the mortgage in proportion to the price it brought at the sheriff's sale. The doctrine of contribution, upon which the exception must be determined, is based wholly upon equity. Its object is to produce equality, and to distribute responsibility according to the interests involved. The burthen resting upon the whole is made to bear equally upon the several parts. The relative values of the several parts become, therefore, important elements in questions of this character: Fisher vs. Clyde, 1 W. & S. 544; 2 Dallas, 189; 1 Barr, 129. The Supreme Court, whilst enforcing the doctrine of contribution, has given no general rules for our guidance in all cases. Each case presents its own peculiar equities which control its settlement. If the object of contribution be kept in view the decisions will be harmonious. In Carpenter vs. Koons, 8 Harris, 222, the values as settled by the sheriff's sale were recognized, but held not to be conclusive, and only a circumstance to be considered. The conclusion from all the cases is, that any method that fixes the true values would be the proper one. The question as to the time when the values should be fixed, when, as in this case, the several equal parts of the land have been unequally improved after the incumbrance has been placed upon the whole land, has never been settled. If the time of the sheriff's sale, or any other time after the improvements have been made, be inflexibly adopted, it is obvious that great injustice might be done. In the present case the purparts were equal in extent and value. Whilst unimproved they were equally liable for the mortgage. How then could their improvement change that liability? The improvement upon No. 4 did not and could not affect the value of No. 2. Why then should it assume a portion of the liability of No. 2? The peculiar equities of this case require us to consider the values of the several parts at the time the mortgage was placed upon the whole land, as the proper values upon which their several liabilities arise. In this we do no violence to the decisions of the Supreme Court. We do but apply the principles of these decisions to a condition of facts not yet brought to the consideration of that tribunal. The auditor has substantially carried out these views. The exceptions are therefore dismissed, and the report confirmed. [Leg. Int., Vol. 32, p. 464.] COMMONWEALTH ex rel. W. H. BOILEAU AND MARGARET JONES vs. THE MOUNT MORIAH CEMETERY ASSOCIATION OF PHILADELPHIA. 1. A private claim to the right of interment in a cemetery lot will be enforced by mandamus. 2. A provision of the charter of a cemetery company which prohibits the transfer of lots without consent of the managers, is binding upon grantees, and a transfer without such approval passes no title. 3. A lot-holder who has executed and delivered a deed of transfer of his lot, unapproved as aforesaid, still has the right to order and compel an interment in said lot. Sur petition for mandamus. Opinion delivered December 24, 1875, by LUDLOW, P. J.-This cause must be decided upon purely legal principles. If the relators in this bill, or either of them, can maintain their present application, it must be because their rights are based first, upon the charter, by-laws and regulations of the cemetery association, and the conveyance or conveyances under which they, or either of them, claim title; and, secondly, upon the peculiar nature of the remedy now invoked. It is to be observed that the lot-holders in this cemetery do not purchase a mere easement, but a title in fee simple, "subject to the conuitions of the act of incorporation, under the rules and regulations adopted by the managers of the said Mount Moriah Cemetery Company," and this clause in the deeds executed by the corporation, distinguishes this case from the ordinary grant of a pew in a church edifice, and takes it out of the established line of decisions referred to by the court in Kincaid's Appeal, 16 P. F. S. 411. In that cause the distinction is noted, for in the decision such language as the following is used: "We cannot, however, consider the certificate as evidence of a grant to the lot-holders of an interest or title in the soil;" and again: "Had it been so intended, it would surely have contained words of inheritance. . . . The grant of a pew in a church edifice, in perpetuity, does not give to the pew-owner an absolute right of property, as in a grant of land in fee." ... The relators have, or one of them, by the act of the defendants, has a fee simple in the lot. Undoubtedly the ground thus held can only be used for the purpose of sepulture, and this right, if it exists in either of the relators, is absolute. A body is brought to the grave for burial: how can a remedy be provided except by mandamus, if then and there the corporation refuse to permit the body to be deposited? This cause is not like the mere disturbance or obstruction of an easement for which damages may be |