In considering this question we are bound by the findings of the facts by the Auditing Judge. There is not a single assignment of error to such findings. The first assignment was perhaps intended to cover this branch of the case, but it is not in conformity to the rules of Court, and will not therefore be considered. tention is that Rene Guillou applied certain sums lected such agent with ordinary prudence and of money received for rents to other purposes, care he would not have been liable for his dewhich he ought to have paid over to the account-fault. There is much force in the remarks of ant. It is only just to say that no actual fraud the Auditing Judge upon this point. He says: is charged in this matter, but it is contended the "Suppose we regard Mr. Rene Guillou as the accountant should be surcharged with them regularly employed agent of the accountant, and because Rene Guillou was his agent. that, while acting in that capacity, he collected the rents of the premises and misappropriated them: Would there be any liability upon the part of the accountant? Upon a question of this sort the test is, has the accountant acted in good faith, as a prudent man would act in the management of his own affairs? There can be no question about this. Mr. Rene Guillou, while he was We have, then, the facts distinctly found that the uncle of the accountant as well as of the cestui Rene Guillou remained in possession of the premi- que trust in this case, is a gentleman in whom all ses, collected the rents, paid the taxes, interest on the other parties interested in this building apprior liens, etc.; and that the accountant never pear to have had confidence. He has been unwas in possession as mortgagee; that the leases fortunate, but there was no allegation against his were assigned to him merely as an additional se-integrity. The rest of the creditors trusted him curity to the mortgage held by the estate, and-why should not the accountant? He is a genthat of the other two creditors, parties to the tleman who is in the real estate business. He agreement, and to protect them all against the attaching creditors of Rene Guillou; that the latter was the agent of all parties in interest, and not of the accountant merely; that he represented all interests, his own included, in the effort to save a very valuable property from the hammer of the sheriff. Under such circumstances we need not discuss the several items with which it was attempted to surcharge the accountant. It would be hard and inequitable to hold him for the acts and omissions of Rene Guillou, acting as he was as the agent of all parties in a family affair, and where the accountant himself had no personal interest in it whatever. The accountant appears to have acted in entire good faith in an attempt to save a valuable property from destruction, which effort has been in part successful, and may eventually prove entirely so. has charge of other estates for other people. On The decree is affirmed and the appeal dis- Aside from this the assignments of error raise no question for discussion. The first, as before observed, is not in conformity with the rules of If, however, we treat Rene Guillou as the Court, and the others merely allege error in conagent of the accountant solely, which is the most firming the account and the adjudication of the unfavorable view for the latter, we are still un-Auditing Judge. No error in the account or able to see any just reason why he should be sur- the adjudication is pointed out, and the decree charged. He was not in possession of the prop- might well have been affirmed for this reason erty, did not collect the rents, and was not enti- alone. tled to do so. The leases were merely assigned as collateral and to prevent attachments which, if laid, would sweep away the rents and as a necessary result prevent their application to the interest and taxes, to be followed by foreclosures and sale of the property. The agreement left the possession in Rene Guillou, with a covenant to account for the rents over and above taxes, interest, and repairs. It was no part of the duty of the executor to collect the rents and take charge of the property, and even had he volunteered to do so he would have been entitled to employ an agent for that purpose. If he se TRUNKEY, and STERRETT, JJ., absent. H. C. O. Jan. '88, 143. May 3, 1888. Hatfield v. The Commonwealth. Liquor license law-Sale of domestic wines by producer under Act of April 20, 1858-Local law of April 12, 1867-Constitutional law Acts of Assembly-Subject of, to be expressed in title. enacted by authority of the same: That from and after the passage of this Act no license shall be issued to any person or persons to sell any spirituous, vinous, malt, or brewed liquors for drinking purposes within a radius of two miles of the Normal School at Mans field, Tioga County, Pennsylvania. SECTION 2. That if any person or persons shall for purposes aforesaid sell any spirituous, vinous, malt, or brewed liquors as aforesaid after the passage of this Act within the limits aforesaid, he or she upon conviction thereof shall be fined in a sum not less than fifty nor more than two hundred dollars, and upon a second A., a producer of a domestic wine, sold some of the conviction thereof, in addition to the fine already imwine in bottles without taking out a license. None of posed, shall undergo an imprisonment in the county the wine was drunk upon his premises. He was in- jail for a period of not more than three months. Prodicted for a violation of the Act of April 12, 1867 (P.vided, however, That persons who are already licensed L. 1178), entitled "An Act to prohibit the issuing of licenses within two miles of the Normal School at Mansfield, Tioga County, Pa.," and which in its second section imposes a penalty for, inter alia, the selling any vinous liquors within the said district. A. defended on the ground that he was authorized to sell his own make of wine, to be drunk elsewhere, by the provisions of the Act of April 20, 1858 (P. L. 367), which gives that right to, inter alia, the manufacturers and producers of domestic wines, and on the further ground that his wine was not intoxicating. A. having been convicted and sentenced, on writ of error: Held (1) That at the trial of an indictment under the said Act of 1867 it is sufficient to prove the sale of a vinous liquor without further proof that it was intoxicating. (2) That it was the manifest purpose of the second section of the said Act of April 12, 1867, to prohibit the sale of vinous liquors by the class of persons to which the defendant belonged, who were protected by the Act of 1858, and (3) That the said Act of April 12, 1867, thus contained two subjects, only one of which, the prohibition to issue licenses provided for in the first section, was expressed in the title, and therefore (4) That the said second section of the said Act of April 12, 1867, was unconstitutional, as it contravened the constitutional amendment of 1864, which required that "no bill shall be passed by the Legislature containing more than one subject which shall be clearly expressed in the title." Error to the Quarter Sessions of Tioga County. Indictment, against Thomas Hatfield, for sell ing liquor within a radius of two miles of the Normal School at Mansfield, Tioga County, Pa., contrary to the provisions of the Act of April 12, 1867. At the trial, before WILLIAMS, P. J., the following facts appeared: The defendant Hatfield resided at Mansfield and there manufactured a domestic wine. He sold some of this wine in 1886 by the bottle at the place of manufacture, none of which was drunk upon the premises. He was thereupon indicted under the Act of April 12, 1867 (P. L. 1178), which Act provides as follows: to sell spirituous, vinous, malt, or brewed liquors as aforesaid shall not be prevented from selling the same until after the expiration of their license. The sale of a vinous liquor was proved, but it was proved that the liquor made and sold by defendant had no intoxicating properties. The defendant defended on the grounds that he was authorized to do as he had done by the eighth section of the Act of April 20, 1858 (P. L. 367), which was as follows: and domestic wines and bottlers of cider, perry, ale, porSECTION 8. That manufacturers and producers of cider ter, or beer, not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster house, tainment, or refreshment, shall be allowed to sell the or cellar, restaurant, or place of amusement, entersame by the bottle or domestic wines and cider by the such liquor is not drank upon such premises where sold gallon, without taking out license: Provided, That nor at any place provided by such seller for that purpose. The defendant requested the Court to charge as follows: "(1) The evidence shows that the defendant sold only wines of his own manufacture, and at the place where manufactured, by the bottle and fore be convicted of selling wine in violation of not to be drank on the premises; he cannot therethe provisions of the Act of the 12th April, 1867." Answer. Refused. "(2) That there was no evidence that the alleged wine sold by the defendant was intoxicating, and the verdict of the jury should be not guilty.'" Answer. Refused. fendant sold the wine as he was charged in the The Court charged the jury that if the deindictment he could be found guilty of a violation of the said Act of 1867. Verdict, guilty, and defendant sentenced to pay a fine of $50 and costs. Whereupon the defendant took this writ assigning for error, inter alia, the refusal of his two points as above set forth, and further that the An Act to prohibit the issuing of licenses within" Court erred in charging the jury that the detwo miles of the Normal School at Mansfield, Tioga fendant could be convicted under the second secCounty, Pennsylvania. tion of Act of 12th of April, 1867, for the reason that the purpose of the Act as shown by its title was only to prevent the granting of licenses; and SECTION 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby the construction given to said Act by the Court would render said Act unconstitutional." J. W. Adams and M. F. Elliott (with whom was F. E. Watrous), for the plaintiff in error. If the construction placed upon the second section of the Act of 1867, by the Court below is correct, then said section is unconstitutional and void because it conflicts with the provisions of the constitutional amendment adopted in 1864, that no bill shall be passed containing more than one subject, which shall be clearly expressed in the title. The title is part of the Act. Ely's Appeal, 20 Smith, 311. May 14, 1888. THE COURT. The defendant below was convicted of unlawfully selling "spirituous, vinous, malt and brewed liquors for drinking purposes within a radius of two miles of the Normal School, at Mansfield, in the county of Tioga." The indictment was laid under the Act of 12th April, 1867, entitled "An Act to prohibit the issuing of licenses within two miles of the Normal School, at Mansfield, Tioga County, Pennsylvania,' ," the first section of which forbids the granting of any license within the designated territory, to sell any of the liquors above stated; and the second section of which prohibits their sale by any one within the said limits, and imposes a fine of not less than fifty, nor more than two hundred dollars for a first conviction of such offence, and both fine and imprisonment upon a second conviction. The defendant resided at Mansfield, and was engaged in the manufacture of domestic wines, which he sold by the bottle to some extent, but not for drinking on the premises. It was conceded that he could not be convicted of this under the general laws in force at the time the defendant was indicted for the reason that under the eighth section of the Act of 20th April, 1858 (P. L. 365), producers of cider and domestic wines, who are not otherwise engaged in the liquor traffic, are permitted to sell by the bottle without license, "provided that such liquor is not drank upon the premises where sold, nor at any place provided by the seller for that purpose." Upon the trial below the defendant asked the Court to instruct the jury that "there is no evidence that the alleged wine sold by the defendant was intoxicating, and the verdict of the jury should be not guilty." The learned Judge refused this instruction very properly. The inquiry was whether the defendant sold vinous liquor, if he did, the Act prohibited such sale and imposed a penalty upon the offending party. Just how much alcohol there might be in the wine was foreign to the issue. The second and only other ground of defence which we shall notice was that the title of the Act does not sufficiently indicate its object, and that the Act itself for this reason is unconstitutional. The title of the Act is notice to all the world that no licenses will be granted to sell liquors within two miles of the Normal School. The first section was strictly germane, as it merely prohibited the granting of licenses within said territory. The second section made it an offence, punishable as therein provided, for any person to sell spirituous, vinous, malt, or brewed liquors for drinking purposes within the proscribed territory. It is difficult to see the object of the second section if it was intended to affect only persons living in Mansfield, or within the radius referred to, who are not entitled at the time of the passage of the Act to sell vinous liquors without a license; as to all such persons, there was no necessity for the passage, as the offence of selling without license was punishable under the general law of the State. But the general law would not reach the case of this defendant, and perhaps others, who, as before observed, were protected by the Act of 1858. It is manifest, we think, that the purpose of the Act of 1867 was to prohibit the sale of vinous liquor by this class of persons. This purpose could have been attained by a direct repeal of the Act of 1858, or the Act of 1867 would perhaps have been sufficient had the title conformed to the constitutional requirements. It contains two distinct subjects, and only one of them is referred to in the title. A saloon keeper in Mansfield, upon looking at the title, might fairly infer that the Act would contain a section punishing him for selling after his license had expired. He would know in any event that he could be punished under the general law for selling without license. But how could this defendant, or a farmer living within the radius, know, or what was there in the title to put him upon inquiry, that he could no longer sell the cider made from his own apples, or the wine from his own grapes, as he had been accustomed to do in the past? What was the question of license or no license to him? He had never been required to take out a license to sell his own cider or wine by the bottle, and certainly he had no reason to suppose that an Act, the title to which referred only to the prohibition of license, would in any way affect him. The title to the Act is so palpably misleading that his possession had been open, notorious, and conthat we are constrained to say that the second tinuous. These facts were denied by the plaintiff : section thereof cannot stand. The first section is Held, that while no adverse possession was shown by the mere recovery of the judgment, the other evinot open to this objection, so that the prohibition dence on behalf of the defendant was sufficient to subas to granting licenses within two miles of the mít to the jury on that point, and that the Court erred Normal School remains in force; and while we in withdrawing it from them and directing a verdict sincerely regret, for the good of the children at in favor of the plaintiff. the school, that the second section of the Act of 1867 cannot be sustained, a partial remedy may perhaps be found in the present license law which prohibits the sale of vinous liquor to minors. I do not think that the eighth section of the Act of 20th April, 1858, was intended to authorize the sale of cider and domestic wines" to children by any one. Error to the Common Pleas of Warren County. Ejectment, by Henry W. Morrison and Mary C. Morrison, his wife, in right of said wife, against Joseph C. Bennett and Ann Bennett, for a lot in Warren Borough. On the trial, before BROWN, P. J., the following facts appeared: Prior to the year 1862 Ra For the reasons given this judgment must be chel Weatherbee was the owner of about an acre reversed. Where judgment by default is recovered in an action of ejectment to enforce specific performance of a contract for the sale of land under articles of agree ment, but no habere facias is issued and no subsequent proceedings are had upon the judgment, such a recovery does not destroy the privity between the vendor and vendee so as to make the possession of the vendee an adverse, hostile poesession sufficient to give him title under the Statute of Limitations. A. having entered into articles of agreement with B. for the sale of certain land, recovered judgment by default in an action of ejectment against B. to enforce the contract. No writ of habere facias was issued and no further proceedings were had upon this judgment, but A. subsequently sold the land to C. B. and his vendees continued in possession for more than 22 years, when C.'s vendee brought an action of ejectment against B.'s vendee, claiming that B. had made an agreement by which he surrendered his interest to A. and had directed the sale to C., and that B.'s vendee, the defendant, was in as a tenant of C. only. B.'s vendee set up for the defence of adverse possession for more than 21 years, and testified that during that period he had paid the taxes and paid no rent to C., but had claimed the property as his own, and of land now in the borough of Warren. At some time during that year she sold the land to Chester Dennison, by articles of agreement. Dennison went into possession and built a small house thereon; but not complying with his agreement to pay for the land, on April 15, 1862, Mrs. Weatherbee began an action of ejectment against him for nonpayment of the purchase-money. The writ was duly served, and upon September 6, 1862, judgment by default was entered for the plaintiff. No writ of habere facias possessionem was, however, issued on the judgment so obtained, and nearly twenty-two years elapsed before the present suit was begun. Dennison, on or about the first of August, 1863, for a small sum of money ($15) surrendered the possession of the premises to the defendant, Joseph C. Bennett, and delivered to him the key of the house. On the fourth of August, 1863, the defendant placed a tenant in the house, who remained there until the following spring, when the defendant moved in with his family, consisting of himself, his father and his mother, and a sister, who was the co-defendant in this suit. In 1864 James Bennett, a brother of the defendant, purchased the land in question from Mrs. Weatherbee, and the plaintiffs claimed title by mesne conveyances through him. The defendants claimed that, by the action of Mrs. Weatherbee in bringing ejectment under the articles of agreement, the possession of Dennison, which before was under Mrs. Weatherbee, was terminated, as to that relation, and that thereafter it was adverse and hostile; that such adverse possession in Dennison and his vendee, Joseph C. Bennett, was continuous during more than twenty-two years before this suit was begun, upon the during which time the defendant lived premises as his home, in the same house that Dennison built, paying the taxes and keeping up the fences made by Dennison; and that this adverse possession was visible, open, and notorious. He therefore claimed that the plaintiff was barred by the Statute of Limitations. The plaintiffs contended that their title by the record was good, and that there was nothing done by Mrs. Weatherbee which made Dennison's possession adverse and hostile to her. They also offered evidence to show that Joseph C. Bennett, the defendant, was never in possession of the premises except as tenant under James Bennett, to whom for part of the time he paid rent for the same; and that at the time Mrs. Weatherbee sold to James Bennett, she did so under an agreement by which Dennison surrendered his contract with her. All this evidence was contradicted by the defendant, who testified that he had never paid any rent to his brother James, but always considered the property as his own. The defendants requested the Court to charge, inter alia, as follows: (1) That the recovery of judgment by Mrs. Weatherbee in the action of ejectment brought by her against Chester Dennison terminated the contract and all privity between them, and the possession held by said Dennison thereafter was hostile and adverse to that of Mrs. Weatherbee. Refused. (2) If the jury believe that Chester Dennison transferred his possession to Joseph Bennett, the defendant, such transfer was an assertion of his hostile and adverse possession as against Mrs. Weatherbee and everybody else. Refused so far as the same is claimed to be applicable to the case on trial under any evidence in the case. The Court charged, inter alia, as follows: "The plaintiffs having exhibited a title to the property in dispute perfect on its face, we think there is no evidence to go to the jury of such adverse possession in the defendant and those under whom he claims, as will defeat the plaintiffs' right to a verdict]. Therefore we say to you that upon the undisputed evidence your verdict should be in favor of the plaintiffs.' Verdict for the plaintiffs and judgment thereon. Whereupon the defendants fook this writ, assigning for error the refusal of their points, the portion of the Judge's charge within brackets as above, and the action of the Court in directing a verdict in favor of the plaintiffs. W. M. Lindsey (S. P. Johnson and James O. Parmlee with him), for plaintiffs in error. Whenever the legal title is in one and the beneficial interest in another, these form but one title, but as soon as the trustee disclaims and acts adversely to the cestui que trust the Statute of Limitations will begin to run. Phipher v. Lodge, 4 S. & R. 569. Blight's Lessee v. Rochester, 7 Wheaton, 548. Price on Lim. and Liens, 119. Scott v. Gallagher, 14 S. & R. 333. Charles Dinsmoor (James Cable with him), for defendants in error. A recovery of a judgment by default in an action of ejectment to enforce performance of a contract of articles of agreement, not followed by any possession, either in person, or through a tenant, agent, or other vendee on the part of the plaintiff to the action, is not equivalent to an entry, so as to break the relationship between the vendor and vendee under the agreement. Powell v. Smith, 2 Watts, 126. Before the Statute of Limitations can commence to run in favor of such a vendee, the privity between him and the vendor must be disowned and severed by some unequivocal act of the vendor. Cadwalader v. App, 31 Smith, 194. We do not May 14, 1888. THE COURt. think the mere fact of the recovery in the action of ejectment brought by Mrs. Weatherbee against Chester Dennison rendered the possession of the latter hostile and adverse to Mrs. Weatherbee. The judgment was by default; the ejectment was to enforce the article of agreement, and therefore in affirmance of it. No subsequent proceedings were ever had upon this judgment; no habere was issued, nor was possession delivered to the plaintiff. Such a recovery is not equivalent to an entry even to bar the Statute of Limitations, and therefore not equivalent to actual possession. (Powell v. Smith, 2 W. 126; Workman v. Guthrie, 29 Pa. 495.) The vendor of land sold under articles of agreement must not only in some way repudiate the agreement, but must take actual possession of the premises either in person, by an agent, a tenant, or another vendee, in order to break the relation his vendee sustains to him under the agreement, before the statute will commence to run. If the recovery in the ejectment were all there is in the case, the Court below would have been right in withdrawing it from the jury and directing a verdict for the plaintiff. But there is the testimony of the defendant himself, who swears that he paid Dennison $15 for the possession in 1863; that Dennison delivered up the key to him in pursuance thereof, and that he has been in adverse possession ever since; that he never paid any rent to his brother James; that he claimed to own the property and repudiated his brother's claims as landlord; and also that he Such disclaimer may be shown by hostile dec- has paid the taxes thereon continuously since larations as well as by hostile acts. Martin v. Jackson, 3 Casey, 510. McMasters v. Bell, 2 P. & W. 183. 1863. It is true all this is denied by the plaintiffs, and it is quite possible the jury would find the truth on their side. But the evidence |