(Case of the Philadelphia Savings Institution.) of members, but they in express words, grant the power to admit members of the corporation. This we conceive, to be an authority to elect such persons as members, as they may deem best fitted to carry into effect the objects of the charter. The respondent's case also derives additional strength from the seventh section. A distinction is there taken between a member of the corporation, and a stockholder. It is made the duty of the directors to appoint from the members of the corporation, five competent persons as a committee of examination to investigate the affairs of the corporation; and in the same section, to declare a dividend, &c. and to pay the same over to the stockholders, or their legal representatives. Why, it has been asked, this change of phraseology, if a stockholder, as such, is a member of the corporation? It is also worthy of remark, that the Legislature wholly omit to regulate the right of voting; a regulation always introduced in all joint-stock incorporations. It is the uniform policy to limit the number of votes to which stockholders may be entitled, in all such companies; a limitation which would not have been omitted, had the Legislature conceived this to be an institution of that description. Reliance has been placed on the word "associates," in the third section, which the counsel for the commonwealth says, must refer to stockholders. This is an argument not without plausibility. This section makes it the duty of the persons named in the act, and of their associates, to raise a capital of not less than $200,000; but in what manner this is to be effected, is left to their discretion. It would seem to be the intention of the Legislature to give power to admit members before, as well as after the capital was raised; and indeed they might have required the aid of others than those named, to effect this result. I see nothing in the act which forbids this; but I think a fair construction of this part of the charter, shows that this power was intended to be given. If so, this is an argument to show that a monied interest, is not an indispensable condition of membership. It is said, that the directors have passed a by-law, that every member, who shall cease to be a stockholder, shall cease to be a member. Whether this be so or not, is of little importance; for although the charter give authority to the directors to admit members, there is none given to disfranchise them. A by-law may modify and change the constitution of a corporation, but cannot alter it. It may regulate in a reasonable manner, the exercise of a right in the internal affairs of a corporation, in the conduct of its members, or the mode by which a person is admitted to the exercise of a right to which he has an inchoate title; but it cannot take away a right, or impose any unreasonable restraint in the exercise of it. 2 Kyd on Corporations, 107, 122. Rules discharged. [PHILADELPHIA, APRIL 28th, 1836.] THE COMMONWEALTH against ALBURGER and Others. 1. The North-eastern square of ground in the city of Philadelphia, now called "The Franklin Square," was dedicated to public use by William Penn at the foundation of the city; so that neither he nor any person succeeding to his title, as Proprietary, could afterwards grant the exclusive use of any part of the same to any person or corporation. A grant therefore, of a part of the Square in 1741, to a religious Corporation, for the purpose of a burying ground, was held to be void. 2. A grant will not be presumed of a part of a public square or strect, from the lapse of time, so as to bar an indictment for a nuisance. 3. Copies of old maps and plans of the City of Philadelphia, in the office of the Surveyor General, and certified by him, held to be admissible in evidence, on a question of the title to an open square in the city. 4. The list of first purchasers," with the advertisement annexed, held to be admissible in evidence on the same question. 5. Historical books which have been generally received as authentic, are admissible as furnishing evidence of remote transactions. In the Mayor's Court of the City of Philadelphia, at June Sessions, 1834, an indictment was found against John Alburger, William Bruner, and thirteen others, for a nuisance in the erection of a certain fence and wooden building upon a part of the north-eastern public square in the city of Philadelphia, called the Franklin Square. This indictment having been removed by certiorari, into this Court, the cause came on for trial at a Court of Nisi Prius, held by the Chief Justice, in the city of Philadelphia, on the 14th of March, 1836. It was alleged on the part of the Commonwealth, that the square of ground in question was given to the city of Philadelphia for public use, by William Penn, the Proprietary of Pennsylvania, at the foundation of the city. The defendants were the Trustees, Elders, and Deacons of "The German Reformed Congregation in the city of Philadelphia," and claimed the exclusive right to the occupation of a portion of the said public square, under a warrant from Thomas Penn, the then Proprietary, dated the 18th of June, 1741, a survey made in December, 1763, and a patent granted in the same month and year. On the trial, the Commonwealth gave in evidence certain ancient documents and printed books, after objections made on the part of the defendants, which were overruled by the Court, viz: 1. A certified copy from the Surveyor General's office, of a plan or map entitled "A portraiture of the City of Philadelphia, &c., by (Commonwealth v. Alburger.) Thomas Holme, Surveyor General," published in London about the year 1683. 2. A certified copy from the same, of the "List of first purchasers," with an advertisement subjoined, upon the situation and extent of the city of Philadelphia. 3. A certified copy from the same, of an ancient general plan of the city, remaining in the Surveyor General's office. 4. A certified copy from the same, of Reed's map of the city. 5. A warrant to the German Lutheran Congregation, for a lot of land bounded eastward by "the public square," dated April 16th, 1776; and a patent for the same lot to the same, dated August 25th, 1781. 6. Part of a note to the 2d vol. of the Laws of Pennsylvania, by Charles Smith, Esq. containing an account of Holmes's plan, and the list of first purchasers. 7. The book of minutes of The Board of Managers of the Pennsylvania Hospital, containing certain instructions from the Proprietaries to the Governor of Pennsylvania, the remarks of the Board of Managers thereupon, and their letter to Thomas Hyam and Sylvanus Bevan, dated 2d of 7 mo. 1752, in answer thereto. 8. A printed book called "Some account of the Pennsylvania Hospital," dated in 1754, containing the same documents. In the course of their testimony, the defendants offered in evidence the following documents, which were objected to on the part of the Commonwealth; and the Court refused to admit them, viz : 1. A paper purporting to be certified by Peter Zachary Lloyd, Clerk of the General Assembly, and to be a copy of a report made by the Committee to whom was referred a memorial of the Trustees, Elders, &c. of this church, presented in 1782. 2. A paper purporting to be the copy of an opinion of William Bradford, Esq. on the right of the defendants to the occupation of the ground; dated the 3d of February, 1783. A variety of evidence was produced on each side, relating to the original plan of the city, the alterations therein, and the acts and doings of the corporation of the city, and the religious corporation represented by the defendants. The defendants finally submitted to a verdict being taken against them on the charge of the Chief Justice in favour of the prosecution on all points, with leave to assign their reasons for a new trial, in order to have the full benefit of their defence in bank; where the cause was to be considered on the whole evidence. Several reasons for a new trial were filed on the part of the defendants, relating 1st. To the admission or rejection of testimony. 2d. To the charge of the Court. (Commonwealth v. Alburger.) The questions arising upon these points were elaborately argued by Mr. W. M. Meredith and Mr. J. R. Ingersoll, (with whom was Mr. Olmstead,) for the Commonwealth, and by Mr. Randall and Mr. Sergeant, for the defendants. The principal topics of the argument being adverted to in the opinion of the Court, it is deemed sufficient to give the authorities cited on each side. On the part of the Commonwealth : 1. On the questions of evidence were cited Hurst v. Dippo, (1 Dall. 25.) 1 Starkie, 169. 2 Starkie, 167. Hill v. West, (4 Yeales, 144.) Shield v. Buchanan, (2 Yeates, 119.) Ross v. Cutshall, (2 Binn. 402.) Blackburn v. Holliday, (12 Serg. & R. 140.) Lord Sussex v. Temple, (Ld. Rayd. 311.) Sturgess v. Waugh, (2 Yeates, 477.) Read v. Jackson, (1 East, 355.) Cauffman v. The Congregation, &c. (6 Binn. 59.) Bull. N. P. 95. 14 East, 327, (note.) Barnes v. Mawson, (1 Maule & Sel. 77.) Weekes v. Sparke, (Ld. 679.) 2. On the question of the title of the defendants, Commonwealth v. McDonough, (16 Serg. & R. 390.) Rung v. Shoneberger, (2 Watts, 23.) Western University v. Robinson, (12 Serg. & R. 29.) Pennant's Hist. of London, 234. Harper v. Charlesworth, (4 Barn. & Cres. 574.) Justin. Inst. Book I. tit. 6, §1. Cod. Book VII. tit. 38, § 2. 1 Domat. 271, 273. 2 Domat. 174. Erskine's Inst. 519, 525. Arundel v. McCullough, (10 Mass. Rep. 70.) Nickerson v. Brackett, (ld. 212.) Staughton v. Baker, (4 Mass. Rep. 528.) Weld v. Harnby, (7 East, 195.) Rex v. Cross, (3 Campbell, 227.) Doe v. Reed, (5 Barn. & Ald. 232.) Goodtitle v. Baldwin, (11 East, 488.) Hylton v. Brown, (1 Wash. C. C. Rep. 204.) Allen v. Lyons, (2 Wash. C. C. Rep. 475.) Penn's Lessee v. Klyne, (4 Dall. 403.) Commonwealth v. Passmore, (1 Serg. & R. 217.) 1 Leon. 190. Chamberlain of London's Case, (3 Leon. 265.) Rex v. Ld. Grosvenor, (2 Starkie's Rep. 511.) 1 Wm. Black. 591. 1 Proud's Hist. of Penn. 169, 242. Howell v. Barclay, (6 Peters' Rep. 512.) Melbyn v. Whiting, (10 Picker. 295.) Cortel you v. Van Brunt, (2 Johns. Rep. 362.) Packard v. Williams, (7 Wheat. 109.) Emerson v. Wiley, (7 Picker. 68.) Conn v. Penn, (1 Peters' C. C. Rep. 514.) Blundell v. Catteral, (5 Barn. & Ald. 268.) Corfield v. Coryell, (4 W. C. C. R. 379.) Kean v. Rice, (12 Serg. & R. 209.) Arnold v. Munday, (1 Halsted, 71.) Hall's Case, (1 Ventris, 169.) Kirk v. Smith, (9 Wheat. 282.) Mayor, &c. of New Orleans v. The U. States, (Sup. Ct. U. S. 1836, MS.) Act of 15th April, 1782 § xi. (2 Smith, 48.) Freytag v. Powell, (District Court Philad. MS.*) *This case being frequently referred to, I have obtained a note of the decision through the kindness of Judge Pettit, and shall insert it in the appendix to this volume.—REP. (Commonwealth v. Alburger.) On the part of the defendants, were cited, 1. Act of 31st March, 1823, (Purd. 382.) Dall. 19.) Morris v. Vanderen, (1 Dall. 67.) (1 Serg & R. 626.) Biddle v. Shippen, (1 2. 2d. Proud's Hist. Penn. 41, 53. Pennant's London, 233, 4. Watson's Annals of Philadelphia, 155, &c. King v. Ward, (Cro. Car. 266.) Newmarch v. Brantley, (3 Swanst. 99.) 2 Selw. 503, n. Woodyear v. Hadden, (5 Tuunt. 126.) Rex v. Lloyd, (1 Campb. 263, n.) M'Connell v. Lexington, (12 Wheat. 585.) Maclay v. Work, (5 Binn. 157.) Town of Pawlett v. Clark, (9 Crunch, 331.) City of Cincinnati v. White, (6 Peters' Rep. 431.) Maclay v. Work, (5 Binn. 157.) Barter v. The Commonwealth, (3 Penn. Rep. 253.) New York Fire Ins. Co. v. Sturgis, (2 Cowen, 664.) Head v. The Providence Ins. Co. (2 Cranch, 127, 166.) Magill v. Brown, (C. C. U. S. Penn. Pamphlet.) Duke on Uses, 174. Stat. 43 Eliz. cap. 4, § 6. (2 Ruffhead, 709.) 9 Peters' Rep. 960. 2 Anstruther, 617. Doe v. Wilson, (11 East, 56.) Roe v. Ireland, (11 East, 280.) 12 Rep. 5. 3 Dow's Rep. 112. King v. Nevile, (Peake's N. P. C. 91.) King v. Smith, (4 Esp. N. P. 109.) Ricard v. Williams, (7 Wheat. 109.) Barclay v. Howell, (6 Peters Rep. 498, 512.) Jackson v. M Call, (10 Johns. Rep. 380.) Jackson v. Lunn, (3 Johns. Cas. 117.) Beardsley v. French, (7 Conn. Rep. 125.) Mather v. Trinity Church, (3 Serg. & R. 510.) Somerville v. Holliday, (1 Watts, 514.) Sugden Vend. 480. Crest v. Jack, (3 Watts, 238.) Le Fevre v. Le Fevre, (4 Serg. & R. 244.) Werkheiser v. Werkheiser, (3 Ruule, 326.) Prevost v. Gratz, (6 Wheat. 491.) The opinion of the Court was delivered by SERGEANT, J.-This is substantially a question as to the right of property in a portion of one of the public squares of this city, and has been discussed with a learning and ability proportioned to its importance. The right it involves, is of a peculiar kind, and for its determination, requires an investigation into the origin and early history of the city, as well as a notice of several later transactions of the proprietaries, the commonwealth who succeeded to their rights, the city corporation, and the defendants or their predecessors. It appears that William Penn, in July 1681, after obtaining a charter for the province, deeming a large town or city within its bounds, essential to the success of his enterprise, by the first article of the conditions or concessions agreed upon in England, stipulated with those who embarked with him in the project, and purchased large quantities of land in Pennsylvania, commonly called first purchasers, that on their arrival here, a certain quantity of land, or ground plat should be laid off for a large town or city in the most convenient place on the river, for health and navigation; and by article 5, that the proportion of ground therein should be ten acres for every five hundred acres of land purchased, (or two per cent.) if the place would allow it. Intending literally to fulfil his engagement, he ap |