cause. Hays v. The Commonwealth received the assent of six Judges of this Court, only the late Justice WOODWARD dissenting. It is sound law and must stand. I concede all this, but I do not understand that | corporation shall thereafter hold its charter subthe Act of 1878 was intended to enforce this ject to the provisions of this Constitution.' This amendment or to repeal the charter of the appel-section is so comprehensive and clear that nothing lant. The amendment of 1857 did not give an is left for surmise or doubt. Charters of private arbitrary power to the Legislature to repeal char- corporations are left exactly as the new Constiters at will. It only authorizes such repeal for tution found them, and so they must remain until It can only be done where the charter is the companies holding them shall enter into a injurious to the citizens of the Commonwealth, new contract with the State by accepting the and such reason should appear in some way as benefit of some future legislation. It is only on the moving cause which induced the Legislature the theory that the manner of voting is not mateto take such action. And even where such cause rial that the cumulative system is sought to be appears, the charter must be revoked or annulled saddled on this corporation; but if this company in such manner, and no other, "that no injustice does not hold its charter subject to the provisions shall be done to the corporators." That I am of the present Constitution, how can it be made right in this construction of the amendment of subject to any one of its provisions, material or 1857, was clearly shown by our brother GORDON immaterial ?" in his opinion in Hays v. Commonwealth, where he says at page 523: "It is said, however, that by the amendment of 1857, the Legislature has the power to alter or revoke the charter of this corporation. Be it so; it may be an answer to say, that a Constitutional Convention is not the Legislature in the meaning of that amendment. If, however, it were such, it could only make such alteration or revocation when it was made to appear that the charter in the part proposed to be revoked or altered was injurious to the citizens of the Commonwealth;' for the Legislature cannot act arbitrarily in a matter of this kind, and impose its own will as the ultima ratio. In the case last above cited (Commonwealth v. Pittsburgh & Connellsville Railroad Company, 58 Pa. 26), Mr. Justice SHARSWOOD sets it down as a rule settled not only by judicial but by legislative authority, that the Legislature is not the final judge of whether the casus fœderis, upon which the authority to repeal is based, has occurred. As there is in this case no allegation of a breach of any condition under which the Pittsburgh & Castle Shannon Railroad Company accepted its charter, or that that charter is in any particular obnoxious to the welfare of the citizens of this 6 Our conclusion is that the charter of the apellant is not affected by the Constitution of 1874 or the Act of 1878. It follows that it was error to grant the injunction. We have departed in this instance from our rule not to discuss cases coming here upon appeals from preliminary injunctions. This appeal presents a question of law only; there are no facts in dispute. The report of a Master under such circumstances could not aid us: We have all the light now we could have upon the final hearing. In addition we have been earnestly requested by the counsel on both sides to treat the decree as final. The decree is reversed at the costs of the appellee, and the injunction dissolved. Opinion by PAXSON, J. TRUNKEY and GREEN, JJ., absent. L. L., Jr. February 27, 1888. Miller's Appeal. Bills in equity-Practice-Joint decree-Subrogation-Tenants in common. Commonwealth, it cannot be successfully urged Jan. '87, 119. Although a bill in equity be filed by A. and B., his wife, in right of said B, yet if A. be joined in the pleadings, and the prayer was for relief, which if granted was partly in B.'s right as assignee of A., and partly in A.'s right covering matters arising out of the same transaction, the bill may be taken as a joint bill and a decree may be made against the complainants jointly. In 1864 a testator devised to his sons A. and C. a tract of land charged with legacies, and made C. his executor. In 1872 D. obtained judgment against A. and C. on a bond in which A. was principal and C. was surety. The judgment was paid by and transferred to C., who issued execution, and levied on A.'s 1. No decree can be entered against Elvira L. Miller, the wife of Charles H. Miller, in this proceeding, as a suit in equity by husband and wife, even for the benefit of the wife, is to be considered only as a suit of the husband. 2. The amount found due Henry H. Miller by the Master's report is only the debt of Charles H. Miller and not the debt of the wife, and therefore there can be no judgment or decree entered jointly against the husband and wife. 3. The decree must be confined solely to the husband. interest on the above land. A. and B. his wife, in Elvira L. Miller filed the following exceptions: B.'s right, filed a bill alleging that at the time the bond was given D. it was understood that A.'s share in the estate would be sufficient to pay it, and that C. should apply sufficient from the funds in his hands to pay it; also that B. to assist A. had advanced money to him, and, subsequently, to prevent A. from wasting his estate had taken a transfer of his interest in this (A.'s) land; it was further alleged that should the land be sold by the sheriff, the property would be sacrificed. The prayer was for an account, and for a decree for the balance due A., and for an injunction. A Master was appointed who found that C. had already filed an account which showed a payment of the legacies and liens against this real estate, and showing a balance in his (C.'s) favor of $2782.41, and recommended a decree that A. and B. be ordered to pay one-half of this to C. Exceptions were filed that no decree could be made against B., and that as the amount due C. was the debt of A., a decree could not be made against A. and B. jointly. The lower Court sustained these exceptions: Held, A. and B. were proper parties to a bill for an account of the matters alleged, and had so acted during the suit, and hence a joint decree should be made against them, provided, however, that the decree should not create any personal liability against B., but was enforceable against her only by the seizure and sale of the land described in the bill. Subrogation may be enforced whenever one, not a mere volunteer, discharges the debt of another. This rule embraces purchasers in common of an estate bound by a joint lien. In this respect they are to be treated as the several estates of joint debtors, and if the purpart of one is called upon to pay more than its share, the tenant is entitled to stand in the place of the satisfied creditor to the extent of the excess which should have been paid out of the others' share. Appeal, by Henry H. Miller, from a decree of the Common Pleas of Berks County. Bill in equity, by Charles H. Miller and Elvira L. Miller his wife, in right of said Elvira, against Henry H. Miller, praying that an account may be stated, under the direction of the Court, between the said Henry and Charles, of all matters growing out of the real estate devised to them jointly by the will of their father, Henry Miller, deceased; that a proper decree be entered for the balance which may be found due to the said Charles, after deducting the Klopp judgment; that the writ of vend. ex. be stayed and set aside, or the said Henry H. Miller be enjoined to stay the same, and that he be restrained by injunction from further proceeding on said writ, and that such other and proper relief be granted as may be necessary and proper in the premises. The substantial allegations of the bill and answer, as well as a summary of the proceedings, are set out in the opinion of the Supreme Court, infra. The case was referred to John Ralston, Esq., as Master, who reported a decree in favor of the defendant and against the complainants, for the sum of $1391.20, with interest and costs. Subsequently she filed the following additional exception: That under the allegations of the bill, and the purpose for which it was filed, viz., to stay the execution by which Henry H. Miller, the above defendant, intended to sell the interest of his brother Charles in the real estate of his father, the defendant is not entitled to a decree against the plaintiffs jointly or against Charles H. Miller alone, for the sum of $1391.20, and that the only decree that can properly be entered is a decree for costs, so far as the costs may be unpaid, against the said Charles H. Miller. The Court, ERMENTROUT, J., sustained the exceptions and entered a decree that complainants pay the costs only. Defendant then took this appeal, assigning for error this action of the Court. George F. Baer (Richmond L. Jones with him), for appellant. The bill is so broadly drawn that it enables the Court to settle all controversy between the parties, on the familiar principle that when a Court of equity "is in possession of the case and has jurisdiction of the subject matter, it may proceed to make a proper decree to do justice between the parties." Danzeisen's Appeal, 73 Pa. St. 65. There can be no doubt of Henry's right to a lien on Charles's interest in the estate for any balance paid by him in discharge of a charge on the common property. The equitable doctrine of subrogation certainly applies. Gearhart v. Jordan, 1 Jones, 331. McCormick's Adm'rs v. Irwin, 11 Casey, 117. The fact that the balance was found against the plaintiff will not prevent a decree in favor of the defendant. No cross-bill is necessary because in all bills in equity for an account, both parties are deemed actors when the cause is before the Court on its merits. "If a balance is ultimately found in favor of the defendant he is entitled to a decree for such balance against the plaintiff." Story's Eq. Jurisprudence, § 522. The title the wife sets up in the bill was not an absolute title in herself. The bill expressly avers that the conveyance to the wife of his (Charles's) entire interest in his father's estate was "to prevent the said Charles H. Miller from wasting his estate by contracting additional debts, and to secure the same for the benefit of himself and family." This conveyance could be no protection against existing debts. Therefore it is that she files her bill to have a settlement of the accounts between Henry and Charles owing out of the common property. What right would she have to come into a Court of equity to demand an account, if the account when made did not affect the estate in her hands? By no arrangement she could make with her husband could the estate she acquired from her husband be relieved from the lien a Court of equity creates in favor of a joint owner of real estate to contribution for disbursements bona fide made for the joint property. This lien is sometimes created by Courts of equity upon mere principles of general justice, "especially where any relief is sought by the party, who ought to pay his proportion of the money." Story's Equity Juris. § 1234. A. G. Green (D. E. Schroeder with him) for appellees. As the wife is not liable for the debt of the husband, there can under no circumstances be a decree against her, even for costs, and the form of the decree which the Court was requested to make was defective in joining the wife and making her property liable to be seized by execution. Daniel's Chancery, 108. Where a bill in equity has been instituted by the husband and wife, although for the wife's benefit, it is regarded as the debt of the husband, and no decree, even for costs, can be entered against the wife. To the same effect are Wake v. Parker, 2 Keen, 59-70. In a bill by husband and wife touching the wife's property, in case of the husband's death the wife is not liable for costs unless she continues the proceeding. Besides, it is more than doubtful since the Married Woman's Act of 1848 and its supplements, whether in a bill in equity so unequivocally brought by the wife, a decree except for costs could be entered against a husband. Daniel's Chancery, 113. The principle invoked by the appellant's counsel, as quoted from the case of Gearhart v. Jordan, may be very good law, but where legacies, which for present security are made a charge upon land, are directed to be paid off by the executor within six years, and they are actually paid off with the money of the estate within five years of the testator's death, they cease to be liens. It is idle to argue that sugh liens are to be considered as subsisting for seventeen years after they have been discharged and released. April 16, 1888. THE COURT. In order to have a complete understanding of this case, a statement of the material facts is necessary. On the 23d March, 1872, Reuben Klopp obtained judgment against Charles H. and Henry H. Miller, upon a bond for $1500, in which Charles was the principal debtor, and Henry, the surety. The judgment having been paid by and transferred to Henry, he issued execution, and levied upon Charles's interest in a tract of land, containing 183 acres, situate in Berks County, and thereupon this bill in equity was filed by Charles H. Miller and Elvira his wife, in the right of said Elvira, against Henry H. Miller. The bill sets forth, in substance, that one Henry Miller died May 9, 1864, devising, inter alia, to his two sons, the said Charles H. and Henry H. Miller, the tract of land in question, charged with legacies amounting to $10,000; that letters testamentary upon the estate of Henry Miller, deceased, were issued to Henry H. Miller, who, on the 14th May, 1869, filed an account, in which he has credit for payment of the debts, etc., and also the legacies above mentioned, showing a considerable balance due to him; that it was the understanding at the time the bond was given to Klopp, that Charles's prospective share in the estate would, upon a full and final settlement, be sufficient to pay it, and that Henry should apply from the funds coming into his hands of Charles's share enough to discharge the debt, and that it was believed, upon a true statement of the accounts between Charles and Henry, including the Klopp judgment, a considerable balance would be found due to Charles. The bill further sets forth, that Elvira L. Miller, wife of Charles, in view of certain pecuniary embarrassments into which he had fallen, had advanced some $2000 of her own money in his relief, and that subsequently, on the 6th April, 1871, in order to prevent the said Charles H. Miller from wasting his estate by contracting additional debts, and to secure the same for the benefit of himself and family, he had conveyed his interest in the land, through a trustee, to his wife. It was further alleged in the bill, that if Charles's interest in the land should be sold by the sheriff, in pursuance of the writ, in view of the uncertainty as to the title and liens, the property would be sacrificed; therefore praying for an account, etc., for a decree for the balance due Charles, and that the execution of the writ should be enjoined. The defendant filed his answer denying the material allegations of the bill, and the case was sent to a Master. It appears by the report of the Master, that on the 24th August, 1875, the executor filed a second account, which after confirmation was opened for a wider purpose than merely to protect her title. review and referred to an Auditor, who found the The husband joined in all the averments of the true balance due to the accountant, including the bill, and in the prayer for relief; nowhere, exbalance on the former account, and exclusive of cepting in the statement of the parties, will it the Klopp judgment, to be $5613.65; which appear that the suit is preferred by the wife in account, after being corrected by the Court so as her own right, and for her exclusive benefit. to show a balance of $5604.55, was finally con- The prayers of the bill are, first, "that an firmed. The Master, after full consideration of account be stated between Henry H. Miller and the whole case, debited Henry with items amount-Charles H. Miller, of all matters growing out of ing to $7712.11 the real estate devised to them jointly by the $10,494.52 $10,494.52 The Master recommended a decree that the plaintiffs, Charles H. and Elvira L. Miller, be ordered and decreed to pay to Henry H. Miller one-half of this balance, being $1391.20, with interest and costs. To this report of the Master, exceptions were filed, to the effect, that no decree could be made against Elvira L. Miller, and that as the amount due Henry was the debt of Charles, not of his wife, no decree could be entered against them jointly. will of their father, Henry Miller, deceased;" second, "that a proper decree be entered for the balance which may be found due to the said Charles H. Miller, after deducting the Klopp judgment;" third, "that the writ of vend. ex. be stayed, and execution of the said judgment enjoined ;" and fourth, "such other and further relief as may be proper." As the husband was joined with the wife in the pleadings, and the prayer was for relief which, if granted, was partly in her right as his assignee and partly in his own right, covering matters, however, arising out of the same transaction, the bill may be taken as a joint bill to obtain the relief prayed for. Especially is the bill to be so considered, in view of the fact that the trial proceeded upon this assumption, the evidence introduced being wholly consistent with this manifest and obvious intention of the parties. The learned Judge of the Court below dis- Elvira L. Miller was the assignee of her husagreed with the Master as to the form of the band; in the spring of 1871 Charles H. Miller decree. He says: "We are not asked to review was found to be indebted to different parties to the Master's conclusions, or the action of the an amount exceeding $4000; part of which, Judge in confirming the Master's report. The perhaps $2000, was owing to his wife, and a loan injunction was granted and afterwards dissolved. of $2000 was effected by judgment upon the We are not at all clear as to the right of Elvira property to pay the balance. On the 6th April, the wife, to ask a statement of an account be- 1871, " in order to prevent the said Charles H. tween Charles and Henry, nor that such account Miller from wasting his estate by contracting could affect her rights or the merits of her bill. additional debts, and to secure the same for the Its only purpose, so far as she was concerned, benefit of himself and family," it was arranged was to show an alleged equitable payment of the that his entire interest in his father's estate Klopp judgment, as one of the reasons for the should be transferred to his wife, and it was "in equitable interference by injunction, to restrain consideration of the premises" the conveyance the process of execution and sale. The Master was made. The plaintiffs were therefore the finds no indebtedness upon her part. The finding proper parties to a bill for an account of the of an indebtedness against the husband cannot matters alleged in the bill, and the defendant fix a liability upon the wife. She does not pre-conceding this, exhibited his accounts and sent this bill in equity as the trustee of her husband, but it is upon the face distinctly asserted to be in right of the said Elvira L. the wife.' We, therefore, decline to make the decree in form as requested." The exceptions were sustained, and it was ordered that the plaintiffs pay the costs. The entry of this decree is the error assigned. Although the bill purports to have been filed by "Charles H. Miller and Elvira L. Miller his wife, in the right of said Elvira," yet the causes of complaint embraced therein, and the measure of relief sought, show that it was intended to serve vouchers before the Master. If the accounting resulted in his favor, we see no good reason why he was not entitled to a decree not only as against Charles, who joined in the bill with full knowledge of its contents, but also against his wife, who was the assignee of the estate bound by the legacies and liens aforesaid. The legacies were charged upon the land by the express provisions of the will, and Henry, who was held therefore jointly with Charles, upon payment thereof, was without doubt entitled to be subrogated to the rights of the legatees, as against Charles's interest in the land in the hands of his wife, as he had tiffs below, pay to Henry H. Miller, the defendant, below, the sum of $1391.20, with interest from 2d February, 1881, together with all the costs, and the costs of this appeal. It is ordered, however, that this decree shall not create any personal responsibility as to the said Elvira L. Miller, but shall be enforceable against her by the seizure or sale of the lands described in the bill, conveyed to her by her husband through Charles L. Bechtel by deed bearing date 6th April, 1871. Opinion by CLARK, J. Baker's Appeal. W. M. S., Jr. March 23, 1888. previously been subrogated to the rights of the plaintiff in the Klopp judgment, in which he was surety; for whilst he was the principal debtor as to one-half of the legacies, he would be regarded as surety for Charles as to the other half. It is plain that Elvira Miller took the estate charged with all the liabilities attaching to it at the time of the conveyance. She cannot be regarded as a purchaser for value; the conveyance was voluntary; it was made to prevent her husband "from wasting his estate by contracting additional debts, and to secure the same for the benefit of himself and family." Such a conveyance would not be available to defeat the claims of existing creditors; and the Klopp judgment was a lien upon the land from the date of its entry. Moreover, her title was under the will of Henry Jan. '88, 183. Miller, deceased, by the provisions of which the legacies were expressly charged upon the land. Subrogation may be enforced whenever one, Trustees-Purchase of real estate of cestui que not a mere volunteer, discharges the debt of! trust by trustee Liability to account for another. (Cottrel's Appeal, 23 Penn. 294.) profits. It is not confined to cases of strict suretyship; it is a mode which equity adopts to compel the ultimate discharge of a debt by him who, in good conscience, ought to pay it. (Bender v. George, 92 Penn. 36.) The rule embraces purchasers in common of an estate bound by a joint lien. As between themselves, the purpart of each is liable to contribute only its proportion toward the dis-trust estate at public sale, and do not pay the whole charge of the common burden, and, beyond this, is to be regarded simply as the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the other; and, if the purpart of the one is called on to pay more than its due proportion, the tenant, or his lien creditors, upon the principle settled in Fleming v. Beaver (2 R. 128), Croft v. Moore (9 W. 451), and Neff v. Miller (8 Barr, 357), is entitled to stand in the place of the satisfied creditor to the extent of the excess which ought to have been paid out of the other shares. (Gearhart v. Jordan, 11 Penna. 331.) It cannot be pretended that the legacies were paid out of the funds of the estate. The account shows that the assets in the hands of the executor were insufficient for the purpose, and it is only as to the balance due the accountant, over and above these assets, that subrogation can apply. We are of opinion that the learned | Judge should have entered a decree in favor of Henry H. Miller for the balance found to be due to him by the Master. This decree, as to Elvira L. Miller, of course, should not impose any personal liability. And now, April 16, 1888, the decree of the Court of Common Pleas is reversed, and it is ordered, adjudged, and decreed that Charles H. Miller and Elvira L. Miller his wife, the plain A trustee will not, under any circumstances, be allowed to make a profit out of the trust funds. Whatever profit arises therefrom in any way belongs to the owner of the fund, and not to its custodian. Norris's Appeal, 71 Pa. 106, followed. Where trustees purchase real estate belonging to the of the purchase-money in cash, but practically use the money of their cestuis que trustent in the purchase, profits made on a re-sale of the property belong to the cestuis que trustent according to their interests, and the trustees must account therefor. Appeal of Charles C. Baker and Caroline Haman, trustees for Anna M. Deal under the will of George Baker, deceased, from a decree of the Orphans' Court of Philadelphia County, surcharging them with the profits made on a re-sale of certain real estate which, had belonged to the trust estate, and had been purchased by the trustees in their individual names at a sale ordered by the Court. At the audit of the account of Charles C. Baker and Caroline Haman, two of the trustees for Anna M. Deal-George W. Baker, the third of said trustees, taking no part in the preparation of said account and being antagonistic thereto the following facts appeared: George Baker, who died. April 25, 1882, by his will directed his executors as they should deem best to convert his residuary estate, real and personal, and to divide the proceeds into eight equal parts; five of these parts he gave to five of his children absolutely, the other three parts he gave to his executor, in trust for John R. Rausch and his children, Harry C. Baker, until he should arrive at the age of twentyone years, and his daughter, Anna M. Deal, and. her children. The trusts were substantially in |