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Opinion by Mb.. Justice Gbeen, After a laborious study of this case, and a most serious con.sideration of the elaborate and exhaustive arguments of the learned counsel on both .sides, we are constrained to say that we think the case was correctly decided in the court below. On the question whether the letter of attorney from the plaintiff to her attorney in fact, Robins, dated Dec. 26, 1888, is to be construed as conferring a power to mortgage the premises in question, we are quite clear as to the correctness of the decision made both by the master and the court below. It is true the precise question does not seem to have been before us heretofore, but we are convinced that the considerations which prevailed in Lancaster v. Dolan and its train of cases, resulting in the declaration- that a power to sell land includes a power to mortgage, are entirely inapplicable in the interpretation of a mere letter of attorney with a naked authority to sell, uncoup- • led with any interest in the land or the fund. The instrument now in question was essentially of this latter class. So far as this matter is concerned it is in the following words: “ Do make, constitute and appoint William B. Robins of said city, attorney at law, my true and lawful attorney, for me and in my name, to grant, bargain and sell in fee simple all real estate owned by me, including all ground rents, on such terms and for such prices as he may see fit, and to make, execute and deliver all necessary deeds and assurances to the purchasers and to assign all policies of insurance on said properties or with said ground rents.” It cannot be questioned that this is but an ordinary letter of attorney to sell real estate in fee simple. It is nothing but a naked authority to sell and make deeds to the purchasers, without any interest, whatever in the proceeds, without any power to invest the same or to exercise any kind of control over them. There was no power to raise money for any trust, or to pay debts or charges, or to provide a fund for any charitable or other purpose or for the support of any third person. In short there was no power of any kind whatever, to do more than simply to sell'the property and to make deeds to the purchasers. Under this narrow, specially defined and closely limited authority, the agent executed a .bond in the name of his principal for the payment of $7;500, and, to secure the payment of the bond, he executed a mortgage of her real estate, also in her name, and thereby made her a debtor in a large sum, when his only authority to act for her was to sell her real estate and bring her the proceeds. Instead of being the seller of real estate in the enjoyment of the fruits of the sale, she was converted into a debtor with all the duties and obligations which that relation implies. We do not know of any doctrine in the law of principal and agent which will permit such a result to be accomplished in such a mode. The books abound with endless decisions which are in utter' hostility with such a transaction as a valid act. Being a debtor, the plaintiff would be subject to an obligation to pay, not only the principal sum of $7,500, but also annual sums of interest. For failure in her payments she would become personally liable for the moneys due, and be subject to a general judgment which would be a lien upon all her real estate, and®upon which process of execution might issue and be levied upon her personal property. In point of fact, a warrant of attorney for the entering of judgment against her for the debt, was contained in the bond executed in her name by her attorney, under an authority which gave him only a bare light to sell her lands. It is not credible that the citizen can be held subject to such consequences, so entirely inconsistent, unexpected and hostile to his express intent, in an instrument of such a character. Whatever else may be said of such a paper, it must be conceded that, in its terms, and in its legal substance, it is a plain, simple letter of attorney establishing the relation of principal and agent between the parties to it. It must therefore be regarded as subject to the rules and requirements of that branch of the law in any event, and if these will not permit it to be used for an ulterior purpose such as is claimed in the present case, then it cannot be so used. Regarded simply as a letter of attorney establishing an agency, the law concerning it is very clear. Thus in Devinney v. Reynolds; 1 W. & S. 328, Mr. Justice Rogers, delivering the opinion, said: “ An agent constituted for a particular purpose and under a limited power cannot bind his principal if he exceeds his power. A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril_when the agent passes the precise limits of his power.” This was said of a deed made by an attorney in fact who was authorized to convey a tract of land after he had redeemed it, and he conveyed it without redemption, and it was held the purchaser took no title. In Story on Agency (ed. 1882), sec. 68, the author says: “ Indeed formal instruments of this sort (letters of attorney) are ordinarily subjected to a strict interpretation, and the authority is never extended beyond that which is given in terms or which is necessary and proper for carrying the authority so given into full effect. Thus a power of attorney to sell, assign and transfer stock will not include a power to pledge it for the agent’s own debt.” 1 Jones on Mortgages, sed 129. A mortgage executed under a power of attorney, authorizing an attorney to sell and convey only is void. Said Mr. Justice Cooley in Jeffrey v. Hursh, 49 Mich. 31: “ J. M. Hursh had power to sell-the land but not to mortgage it. The power is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgage: Wood v. Goodridge, 6 Cush. 117; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Ferry v. Laible, 31 N. J. Eq. 566; Kinney v, Matthews, 69 Mo. 520; Patepsco & Co. v. Morrison, 2 Woods, 395; Devaynes v. Robinson, 24 Beav. 86.” Deputron v. Young, 134 U. S. 241. In the case of a naked power, not coupled with an interest, every prerequisite to the exercise of that power should precede it. A. power to make and execute deeds to convey real estate, as the same may be sold to purchasers in tracts by a third party, is a naked power to convey as sales may be made, and a deed made otherwise is a fraud upon the power. Morris v. Watson, 15 Minn. 212. As a general rule a power to sell and convey real estate, does not confer a power to mortgage, and a mortgage executed under a power of attorney to-sell and convey is void. The court said: “ The power of attorney in this case by Mary C. Hargin to Charles S. Hargin is a power to sell and convey only; therefore the mortgage executed-by Charles S. Hargin to Moses Sherburn under this power of attorney is void.” In the case of Wood v. Goodridge, 6 Cush. 117, a power of attorney authorized the attorney, in the name and for' the benefit of the principal, to buy and sell reai and personal property and to execute and deliver deeds, to transfer the same, to- move and institute all necessary suits for the recovery and collection of his demands. . . . Especially to carry on his saw-mill and buy and sell logs and lumber .... and in general to make such contracts for the profitable improvement and use of such property and other means as he possessed for the enlargement of his estate. The attorney made a mortgage and note for a sum of money, and the question of his power to make them arose and' was'decided. The court said: “Levi Goodridge, who made the mortgage and note, had no authority under his power of attorney from Benjamin Goodridge to do these acts, so that the mortgage and note are both invalid and without any legal effect. In accordance with the general and well-settled principles of law, the power of attorney to Levi must be so interpreted as not to extend the authority given to him beyond that which is given in terms, or which is necessary and proper for carrying the authority expressly given into full effect. Now the power of attorney in this case very clearly did not in terms give to Levi authority to mortgage the real estate of his principal; still less does it, in terms, give him the power to borrow money and to bind his principal by a promissory note. ... In the absence of all evidence that the money was in fact obtained for the principal or that it was • necessary for the execution of the authority given, there being no express authority to make a mortgage or negotiable note, there is an entire failure to show that Levi had any authority to make the note and mortgage, and the title of the plaintiff, being derived under that mortgage, wholly fails.” It is not necessary to quote further authorities for a proposition so plain in its character and not opposed by any contrary decisions. As we have already said, the cases of Lancaster v. •Dolan and those that follow it, are not pertinent to the discussion because they depend upon different principles and upon facts which have no existence here. We are therefore brought to the consideration of the remaining question whether the appellant is entitled to subrogation to the 16,000 prior mortgage which was.paid off with the proceeds of the mortgage in suit. Upon that subject it is to be observed that the payment of the prior mortgage was the act of a mere volunteer. The plaintiff was not consulted about it and had no knowledge of it. There was no privity of any kind between the plaintiff and the defendant, and the latter was under no compulsion to make the payment for the protection of its interests. The payment was doubtless made so as to make its mortgage a first instead of a second mortgage. But that consideration would give no right of subrogation to the holder of the second mortgage. It seems to us that the case of McCleary’s Appeal, 20 W. N. 547, covers every aspect of this. There the first mortgage was an un doubtedly valid lien upon tbe property for $925. The second mortgage was a forgery, and the holder, as here, desiring to have the first lien extinguished, paid $600 of the mortgage money, $1,400, to the agent of the owner of the.property, who, with $825 furnished by the owner, paid the $925 due on the first mortgage, had it satisfied, and surrendered the bond and the mortgage to the owner. When the forgery was discovered, the holder of the second .mortgage filed a bill praying a cancellation of the entry of satisfaction, and subrogation. Both the court below and this court held that this could not be done, and dismissed the bill upon the express ground that, although the first mortgage was an unquestioned lien, and the money, to the extent of $600, was paid by the holder of the second mortgage, he was a mere volunteer in making such payment and was not entitled to subrogation. The same doctrine was enforced in the case of Webster'and Goldsmith’s Appeal, 86 Pa. 409, the syllabus of which is as follows, viz: While 'subrogation is founded on principles of equity and benevolence and may be. decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the 'debt of another. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor. There the maker of a promissory note for $700 gave a judgment for that amount to his indorser to protect him against liability on his indorsement. After-wards, at the maturity of the note, another person consented to indorse a new note to take up the first one upon the express assurance of the maker that the judgment should be assigned to the second indorser for his protection against liability for the same debt. The judgment was assigned shortly after to the second indorser, who was ultimately obliged to pay the note. The property of the maker being sold upon execution process, the holder of the assigned judgment claimed a share in the distribution of the proceeds as against -'udgments obtained subsequently to the assigned judgment. Priority in the distribution was allowed to the assigned judgment in the court below, but this court reversed the decree, holding that the second indorser was a mere volunteer, and that as the first judgment had served its purpose of protecting the first indorser, it could not be used to protect the second indorser although assigned to him for that purpose by the first indorser as a condition of the second indorsement. While we decided that if the judgment had been held by the bank which discounted the note, as a part of their security, subrogation would have been granted, even against intervening judgment creditors, we held also that it could not be granted-to one who came in as the indorser of a new note given to take up the first note, because he was a .stranger to the first contract, and was to be regarded as a mere volunteer. Woodward, J., said: “ While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who without any duty moral or otherwise pays the debt of another: Hoover v. Epler, 2 P. F. Smith, 522. It will not arise in favor of a stranger but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor: Mosier’s Appeal, 6 P. F. Smith, 76. . . . There was no privity of interest, and no contract relation, between Bauer and Banker. Bauer could create no duty to himself by a volunteered intervention for Banker’s relief. He became Adam’s indorser without being under any legal or moral compulsion, and he had no existing interest, ascertained or contingent, to protect. He had no equity to entitle him to subrogation.” So here the payment of the $6,000 due under the first mortgage was not made under any compulsion, or for the protection of any rights.or interests previously acquired. The defendant simply loaned the money, and, in order to remove a prior lien, paid it off without, the knowledge or consent of the plaintiff. If a right of subrogation is acquired in such a state of facts we see no reason why it may not exist in every case of officious payment of the debt of another. Yet it is perfectly clear under all the authorities that such payments do not give any right of subrogation to the debt discharged. In -Beach on Modern Equity Jurisprudence, section 801, the writer says: “ But one who is only a volunteer cannot invoke the aid of subrogation, for such a person can establish no equity. He must have paid upon request or as surety, or under some compulsion made necessary by the adequate protection of his own right. In such a case instead of creating any right of subrogation, the payment operates as the absolute discharge of the debt so paid. Thus one who discharges an incumbrance upon property which he has no interest in having relieved, is not thereby subrogated to the rights of the holder of the incumbrance; and the loaning of money to discharge a lien does not subrogate the lender to the rights of the lien holdér.” Sheldon in his work on Subrogation, sec. 240, says: “ The doctrine of subrogation is not applied for the mere stranger or vohrnteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the paj^ment and not being compelled to do so for the preservation of any lights or property of his own.” There can be no question of the soundness of the foregoing propositions, and where the facts are such as to make them applicable, they are controlling. We think, for reasons already stated, they are directly applicable to the undoubted facts of the present case. It is not practicable, within the proper limits-of a judicial opinion, to engage in a critical review of the numerous decisions cited in the arguments of counsel on both sides. A great many of them furnish their own answer when, the facts which distinguish them are duly noted and considered. Others, which are apparently in point, are affected by the presence of exceptional circumstances which authorize the-introduction of different principles with a controlling effect-But a minute and patient attention to, and consideration of, the very able and exhaustive argument for the appellant has failed to convince us of any error in the treatment of the case by the learned master and the court below, and, substantially for the reasons stated by them, we think the decree should be affirmed. Decree affirmed and appeal dismissed at' the cost of the appellants.

Opinion by Mb. Justice Simpson, The nine appellants who have taken these twenty-six appeals, were formerly school directors of the second-class school district of the City of Chester. The proceedings below were but four in number; they were heard together in the court below and there determined at the same time, were argued together here, and will all be decided in this one opinion. Three of them were appeals, authorized by section 2622 of the School Code of May 18, 1911, P. L. 309, 428, by citizens and taxpayers of the school district, from the ¿udit of the accounts of the board for the three school years of 1923-4, 1924-5, and 1925-6 respectively; the fourth was a petition by more than ten resident taxpayers, authorized by section 217 of the Code (P. L. 321), praying the removal from office of all the school directors, because of their neglect of duty. In the first three cases, each of the school directors was held liable for such of the wrongful expenditures as he or she voted for during the particular school year under consideration. This is the requirement of sections 516, 517 and 2613 of the Code, P. L. 336, 427. In the fourth, all of the directors were removed from office. The court below considered the objections to the payments out of the school funds, under four heads. The first embraced supplies of the first class, that is “school desks, chairs, typewriters, and school apparatus”: section 706 of the Code, P. L. 354. In the purchase of these, advertisement is not essential, but if their cost will be $100 or more, the board must, by section 707 of the Code (P. L. 354), “solicit sealed quotations from two or more firms, manufacturers, or dealers in such supplies, and at a regular meeting shall open such bids and quotations, and shall accept the lowest bid, when the kinds of supplies offered, and their kind, quality, and character of material, are the same, or are equal or satisfactory.” The court below says that, as to these, he sustained the action of the school board in all cases where “there is any evidence of any attempt to obtain competitive bids.” The second head embraced the second class of school supplies specified in section 706 of the Code (P. L. 354), and included “maps, globes, and all other supplies, except textbooks, necessary for school use, not included in the first class.” As to these, section 708 provides (P. L. 354) that if their cost will be $300 or more, they “shall be awarded and purchased only after public notice has been given by advertisement, published once each week for three weeks in not less than two newspapers of general circulation.” Concerning this class, the court below said: “No items were included in this category, or charged against the defendants, except those regarding which the evidence showed that there had been no advertisement whatever.” The third head embraced the subject-matter of section 617 of the Code (P. L. 350), as amended by the Act of July 10, 1919, P. L. 889, which provides that “All construction, reconstruction, repairs, or work of any nature, including the introduction of heating, ventilating, or lighting systems, upon any school building or upon any school property......where the entire cost, value, or amount......including labor and material, shall ex ceed $800, shall be done under contract or contracts to be entered into by such school district with the lowest responsible bidder, upon proper terms, after due public notice has been given asking for competitive bids.” As to this class, the court below said credits for payments made by defendants were refused only “where the evidence showed that no contract whatever had been entered into by the school district after any public notice had been given asking for competitive bids.” The fourth class consisted of expenditures alleged to have been made in violation of section 403 of the Code (P. L. 330), which provides that “The affirmative vote of a majority of all the members of the board of school directors......duly recorded, showing how each member voted, shall be required in order to take action on the following subjects: — ...... Entering into contracts of any kind, including the purchase of fuel or any supplies, where the amount involved exceeds $100.” This section is, in effect, amended by the Act of May 11, 1927, P. L. 965, which validates unrecorded actions and votes, “if such action or vote was actually taken, or duty performed, or power exercised by the board as required by law.” In this class, the court below said the credits were disallowed only in those instances where “there was no evidence or claim that any prior contract had been entered into” regarding them. After final judgment had been entered by the court below, the Act of February 20, 1929, P. L. 3, was approved by the governor. It is as follows: “Section 1. Be it enacted, etc., That whenever any board of school directors shall have heretofore contracted for labor, materials, and supplies, for the school district, the purchase of which by contract are authorized under the provisions of the school laws of the Commonwealth, and such board of school directors has actually received such labor, materials, and supplies, and the same are being used by the school district — if the said contract does not evidence any fraud or conspiracy to violate the provi sions of the school laws of the Commonwealth, and the school district has not suffered any pecuniary loss as the result of such contract, then such contract shall be valid and binding on the school district and payment for such labor, materials, and supplies, by the school district is hereby ratified, confirmed, and validated, notwithstanding the fact that the affirmative votes of the majority of the board of school directors were not recorded in the minutes showing how each member voted, as required by law. No board of school directors, or any member thereof, shall be subject to surcharge for payments made by any board of school directors on any such contract. Section 2. This act shall be in force immediately upon its passage and approval by the governor.’’ Relying upon that statute, defendants applied for and were granted a rule, in each of the three appeals from the audit of their accounts, “to show cause why the judgments entered against them as aforesaid should not be opened and set aside.” Without the taking of evidence, the court below discharged these rules, because, as stated by it, the statute “does not affect the basis upon which the judgments were entered”; and because, also, it cannot “be considered as a reversal by the legislature of a final judgment of this court. Such an attempt would be obnoxious to the objection that the legislature possesses no such constitutional power. There is nothing in the act to indicate such legislative attempt, and it cannot be presumed.” We do not agree with this conclusion. It is undoubtedly true that, where only private interests are concerned, a final judgment cannot be overthrown by a statute subsequently passed; Greenough v. Greenough, 11 Pa. 489, is the case where that point is most elaborately considered, and Lewis v. P. R. R. Co., 220 Pa. 317, is probably the latest. Here, however, private interests are not involved, but only those that are public, — the State is dealing with one of its purely public creatures, charged with the performance of a portion of the State’s duty. Under such circum stances, unless constitutionally inhibited, the control of the State is without limitation. The act is a general one, containing one subject, which is clearly expressed in its title, and we have not been advised of any other provision of the Constitution which has any bearing on this question. We must hold, therefore, that the statute is a valid exercise of legislative power. This brings us to the real inquiry: Is the act at all applicable in the present case, and if so, to what extent? It will be noticed that it is retrospective: “Whenever any board of school directors shall have heretofore contracted,” etc. Whether it is anything but retrospective, we are not called upon to decide at this time. It is clear from the record, that defendants “have heretofore contracted for [at least some of the] labor, materials and supplies” for which they have been held liable. It is clear, also, that the board was statutorily authorized to contract for them, that it actually received them, and they are being used by the school district. The open questions then are, do the contracts in question “evidence any fraud or conspiracy to violate the provisions of the school laws,” and has “the school district suffered any pecuniary loss as the result of such contracts,” that is, did it pay more by reason of the way the work and materials were ordered and furnished, than it would have paid had' contracts therefor been awarded in the manner the then-existing statutes provided. These points were not mooted in the court below, because at the time the evidence was there produced, they were matters of no moment. Because of the Act of 1929, they have now become so, and appellants have the right to prove the controlling facts; the burden of proof of course being upon them, since they are seeking to escape a liability by virtue of a subsequent statutory exemption alleged to operate in their favor: Suravitz v. Prudential Ins. Co., 261 Pa. 390; Doud v. Hines, 269 Pa. 182; Lipshutz v. Lipshutz, 274 Pa. 217,221. We have not overlooked the provision of the act referring to the failure to record, in the minutes, the votes on such contracts, but cannot give to it the effect of controlling the entire statute. So to limit the Act of 1929, would make it little, if anything, more than a restatement of the Act of May 11, 1927, P. L. 965. Relief from a failure to record is not the paramount purpose of the former act, but only prevents that failure from being considered as a reason for holding the directors liable, when the other provisions of the statute would relieve them. It says that “such contract [i. e., as previously referred to]......is hereby ratified, confirmed, and validated, notwithstanding” the failure to record the votes in its favor. It means, therefore, that the failure to record the votes shall not operate to continue the surcharge, in cases where, under the prior provisions, the directors would be relieved.- Nor have we forgotten that no exception was taken in the court below to the dismissal of appellants’ petition for relief because of the statute. Where a public policy is or may be controlling, however, this court will, of its own motion, take cognizance of the matter, though it was not even suggested in the court below. We conclude, therefore, that instead of dismissing the petitions, the court below should have taken evidence on the questions involved, and decided to which, if any, of the contracts the Act of 1929 was applicable, and, in so far as it was, refused to surcharge the directors. This duty is expressly declared in the last provision of the act, which says that “No board of school directors, or any members thereof, shall be subject to surcharge for payments made by any board of school directors on any such contract.” Perhaps it should also be said that the statute has no bearing on any question regarding the ultimate liability of the respective parties for the fees and expenses incurred by them before the act was passed, nor as to the costs of the case previous to that time. As there may be surcharges to which it will be found the statute does not apply, we shall now consider the other points argued on the present appeal. Over and over again appellants ask us to reverse the court below simply because, as they aver, the school district did not suffer any loss from their breach of duty, and they did not individually make any gain. Assuming the facts to be so, we can sympathize with their feelings, but their arguments are addressed to the wrong tribunal. All they have to say on these points was urged by other able counsel, with equal strenuousness, in Hanover Township School District’s Audit, 265 Pa. 157. We were compelled to overrule them then, and are required to do so now, especially as there have been five biennial sessions of the legislature since that decision was rendered, and, except with respect to contracts validated by the Act of 1929, supra, our construction of the statute has not been changed by subsequent legislation. On the point under consideration we need only quote, therefore, from that decision (265 Pa. 164-5) : “Finally appellants argue the surcharge was improper because evidence was wanting tending to show the municipality actually suffered financial loss through fault or neglect of the directors, within the meaning of the Act of June 9, 1911, P. L. 865, providing for the surcharge of officers ‘whose act or neglect shall have contributed to the financial loss of any municipality or district’ and, so far as appears from the record, the school district received full value for the money paid. Section 617, P. L. 350, of the School Code provides that every contract in excess of $300 for the construction and repair of public school buildings ‘shall be awarded to the lowest and best bidder, after due public notice has been given.’ Section 516 confers upon directors the right to pay out ‘in the manner herein provided, any funds of the district for any or all of the purposes herein provided, subject to all provisions of this act. The use or payment of any school funds in any district, in this Commonwealth in any man ner or for any purpose not provided for in this act, shall be illegal.’ Section 517 provides that ‘any school director voting for, or any officer approving, any school order for the payment of school funds for any other purpose, or drawn in any other manner, than that provided in this act, shall......be individually liable to the district for the amount thereof.’ In section 2613 it is provided that ‘any school order issued in any other manner or for any other purpose than herein authorized shall, if paid, be disallowed by the auditors, and charged against the person or persons voting for or approving the same.’ Jt thus appears that in issuing orders for the payment of money, the directors must be governed entirely by the provisions of the Code with respect to both the manner of payment and the purpose. Payments or acts necessary to constitute ‘financial loss’ must be determined in view of the above provisions of the law. If the term is to include only the difference between the contract price and the actual value of the work done, thus involving a consideration of the details relating to the performance of the contract, prices, etc., and not the entire loss resulting from the drawing and payment of an order pursuant to a contract illegal because made in violation of the express provisions of the Code, such construction would, in effect, nullify the requirements as to public bidding and permit directors to award contracts to favorite bidders. Similar provisions in other statutes requiring competitive bidding have been uniformly construed to invalidate contracts let without observing the statutory requirements: Lewis v. Phila., 235 Pa. 260, 271, 273. “While our conclusion imposes a heavy burden upon appellants, the court is without power to relieve them from the effect of their own carelessness or error, whichever it may be: Flinn v. Phila., 258 Pa. 355. The duty of this court is to execute the legislative will in the manner prescribed in statutes so long as no constitutional provision is violated, regardless of the hardship of a par ticular case or whether our opinion as to what the law ought to be coincides with that of the legislature: McKibbin v. Martin, 64 Pa. 352, 361; Weber v. Reinhard, 73 Pa. 370, 374.” Appellants also strongly contend that we should apply, in their favor, the rule that if, without contract, one obtains the goods of another, he must return them or pay their fair value; but this also has no application. No one who furnished materials is legally interested in these proceedings. What we are considering is, what the Code says shall be the result as between the school district and the school directors, if the latter illegally disburse the money of the former. Hanover Township School District’s Audit, supra, quotes the provisions of the Code, and correctly states the result flowing from a failure to obey them; beyond this there is only a legislative question with which we have nothing to do. Defendants’ attempt to have themselves subrogated to the rights of a contractor, who seeks to recover as upon a quantum meruit, in matters of private concern, where he furnished materials which have not been returned, has been not infrequently attempted in this class of cases, and, of course, always without success: in addition to the foregoing authorities, see In re Appeal of Sykesville Boro., 91 Pa. Superior Ct. 335; Kreusler v. McKees Rock School Disk, 256 Pa. 281. Defendants’ next contention is that if the court below had properly interpreted section 403 of the Code (P. L. 350), it would not have charged them with any of the items in schedule 4. It is defendants themselves, however, who have misinterpreted that section. So far as important here, it provides that “the affirmative vote of a majority of all the members of the board......duly recorded, showing how each member voted, shall be required in order to take action on the following subjects ...... Entering into contracts of any kind, including the purchase of fuel or any supplies, where the amount involved exceeds $100,” In Jackson v, Conneautville Boro. School Dist., 280 Pa. 601, we held that acts of a school board in violation of this section are void. In a vain endeavor to override this conclusion, appellants contend that the word “contracts” does not apply to “purchase of fuel or any supplies,” and hence the “action” of the board may be taken at any time, after as well as before these articles were ordered, received and used. It is clear, however, that the “purchase” must be by contract, and that the sentence means “Entering into contracts of any kind, including [contracts for] the purchase of fuel or any supplies where the amount involved exceeds $100.” Moreover, the purpose of this section is not to show how purchases may be made, but the way in which the directors may show their assent. The requirements regarding their making are specified in sections 706, 707 and 708 (P. L. 354), which direct, as we have already pointed out, the soliciting of “sealed quotations from two or more firms, manufacturers, or dealers in such supplies,” if of the first class, and advertisement for three weeks “in not less than two newspapers of general circulation,” if of the second class. Under these sections there must be contracts before there can be valid purchases of supplies in excess of $100; a conclusion emphasized by the amendatory Act of May 4, 1927, P. L. 689, which provides that “the board of school directors in any district may authorize or appoint the secretary of the board or other executive as purchasing agent for the district, with authority to purchase supplies of either class costing less than $100.” Further antagonizing the foregoing conclusion, defendants assert that “there is direct authority covering the very situation now before the court [in] the case of Cooper v. Plymouth Twp. School Dist., 39 Pa. Superior Ct. 485”; but that case has not the slightest bearing on this question. There, the action arose and was decided two years before the School Code was passed; the contractor was employed by the school district to do certain repairs; he did them and his bill was unanimously ap proved. Payment not having been made, he brought the suit there decided. The opinion states, page 487, “The amount of the bill was reasonable, and the only irregularity in the whole proceeding was that of the officials of the school board in not making a proper record of their action.” Of course the contractor recovered; so he would now if that was the “only irregularity” urged against his claim. Besides, no contractor’s rights are involved in the present case; but only those of the school directors who have failed to comply with the statutory requirements, and, for that reason, are held liable in exactly the way the statute provided. The case of Brighton Road, 213 Pa. 521, also relied on by defendants, is still further afield. There the city, by ordinance, determined to grade and pave the road; advertisement was duly made, bids received, the contract let to the lowest bidder, and the work done by him was approved and accepted by the city. When the cost was assessed on the property owners, one of them refused to pay because a statute, approved while the proceedings were pending, required an ordinance providing for the letting of the contract, and none had been passed. It was held that th'e city could waive the irregularity which “occurred through the confusion incident to the radical change in the law,” and that this was in fact done. In the elaborate brief of appellants, a number of other points are made, under the heading that the “Provisions of the School Code may be waived where it appears necessary or to the advantage of the school district.” This also is an oft-repeated and often-overruled contention. As we said in Summit Hill School Directors, 258 Pa. 575, 580: “To hold such requirements directory merely [as the above heading again proclaims] would defeat the very object the legislature had in view in inserting them.” What school directors may do in expending the funds of the district, and what they may not do, is expressed with much detail in the Code. Section 517 (P. L. 336) says that “Any school director voting for.,,,,, a school order for the payment of school funds for any other purpose, or drawn in any other manner, than that provided in this act, shall......be individually liable to the district for the amount thereof.” And section 2613 (P. L. 427) says that “Any school order issued in any other manner or for any other purpose than herein authorized shall, if paid, be disallowed by the auditors, and charged against the person or persons voting for or approving the same.” These provisions are mandatory, and not matters of discretion. Assuming that emergencies may arise which require such immediate action as will prevent all the requirements of the Code being complied with (as, for instance, the bursting of a large water pipe resulting in the flooding of a school building), it suffices to say that this record discloses to us no emergency of that imperative nature, and appellants have pointed to none. If one such ever does arise, the board will be justified in passing over such of the requirements as cannot be fully met, but not in ignoring the Code altogether. Hurry-up jobs do appear, but none so greatly hurried that several bids could not have been obtained. They all seem to have been cases where, as appellants say, they simply selected contractors whom they knew to be good. So, also, while it is true that the board was entitled to “some latitude in following out a standard of furniture and equipment, when additions to that already in use are necessary,”— as they were also when establishing the standard originally, — this presents no reason why the furniture and equipment should be bought in express violation of the Code. Contracts could have been awarded, after due advertisements, etc., and deliveries partially postponed; but nothing of this kind was done. What appellants claim they had the right to do, and what the Code expressly forbids, is to “purchase from a reputable dealer, with whom the school district had dealt for years, and from whom it had learned from experience it could obtain the best service and best prices,” without seeking bids at all. Save as referred to hereafter, the other points which appellants attempt to make under this head of their brief, need no consideration. They are all vain endeavors to justify actions in disregard of the plain requirements of the Code, and seem to show a desire to avoid obeying the law, because they thought it confined appellants to a “too rigid and narrow path.” As to this reason, men may well differ, but the courts must enforce the law as it is written. Appellants invoke also section 13 of article I of the state Constitution, which says that excessive fines shall not be imposed, and urge that the judgments here are obnoxious to that provision. Had they read all of the section they probably would have understood that it related only to criminal proceedings. It says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.” The fine there referred to means “Pecuniary punishment imposed by a lawful tribunal upon a person convicted of crime or misdemeanor” : 2 Bouvier’s Law Dictionary, Rafwle’s 3d Revision. It cannot have any possible relation to the refusal of credits, in civil proceedings, for public moneys wrongfully expended by a public officer. Appellants further contend that credits for extras ordered by the architect, during the course of construction work, were disallowed under section 617 of the Code (P. L. 350), because they were not done under contract “after due public notice has been given......asking for competitive bids.” We do not understand it to be denied that the original contract was properly awarded, that it authorized the architect to order extra work when necessary and to increase or diminish the contract price accordingly, or that he did order the work, in payment for which defendants were surcharged. Under such circumstances, the credits might have been proper, but we have no way of knowing, from the record now before us, whether or not they were, and the court below must determine this point in accordance with th.e_ rule laid down in Com. ex rel. v. Jones, 283 Pa. 582, 586: “Municipal authorities may, without advertising for bids, provide for work incidental to that covered by the original contract......or for such minor changes and additions thereto as may become reasonably necessary, but cannot so authorize what amounts to a new undertaking. ...... A new departure must not so vary from the original plan, or be of such importance, as to constitute a new undertaking, which the act controls, and where fairness could only be reached through competitive bidding.” Still another point made by defendants may call for further elucidation by the court below. They aver that, ■in several instances, there were a number of items, each of which was less than $100, was separately contracted for, and was a separate and distinct purchase, but for all of which they were denied credit, because their aggregate exceeded that sum and was included in a single order for payment. Appellees appear to admit the facts as stated, at least as to some items, but assert that the small contracts were so made, without competitive bidding, for the purpose of evading the requirements of the Code. If this be so, the disallowance of the credits was proper; but there is no finding on the point. We might, perhaps, assume that the court below decided it in accordance with appellees’ contention, since he charged appellants with the several sums referred to; but in this kind of a case there should be an express finding one way or the other. We cannot overlook the statements in the opinion that “The finding is not made of corruption or dishonesty, or that any of the directors profited as the result of their neglect,” and that “It is conceivable that these school directors might have been led into carelessness and neglect of the legal requirements regarding their duties by the neglect or inefficiency of their subordinates, or by incompetent advice.” Nor, on the specific point now being examined, can we consider those statements wholly overthrown by the further find ing, which the record substantiates, “that during the three years [under review by the court below] the directors neglected to perform the provisions that the law made mandatory upon them, so repeatedly and continuously as to show a course of conduct in disregard and violation of the mandates of the law, and neglected to follow the legally required system of business administration preventative of extravagance, carelessness, favoritism and dishonesty.” On the contrary, we think that, taking all these findings together, the case still is one in which we should have a direct determination of the point by the trial judge who saw and heard the witnesses, and for that reason can better determine than we can, whether or not appellants did, in fact, deliberately endeavor to evade the law: Phillips’s Est., 295 Pa. 349; Robb v. Stone, 296 Pa. 482; More v. People’s Bank & Trust Co., 297 Pa. 252. There are also a number of instances where the court below surcharged appellants for the money expended by them in the purchase of certain patented articles alleged to have been needed in the schools, and not obtainable elsewhere or at any other price than that paid for them. In this class also, we think there should have been specific findings covering these exceptional instances, which the court may make on the return of the record, followed by its decision as to whether or not, under the facts as so found, the directors were personally responsible. Appellants also assert that they have been charged twice with an item of $160.70, the first time in Master Line No. 75, in Schedule No. 3-1923-1924, as part of the $560.70 there specified; and the second time in Master Line No. 83, in Schedule No. 4-1923-1924. If this is so, it should, of course, be corrected before final decree. In their other appeal, appellants object because they were dismissed from office on the petition filed under section 217 of the Code: P. L. 321. It provides that if “the court shall be of the opinion that any duty imposed on said board of school directors, which is by the provi sions of this act made mandatory upon them to perform, has not been done or has been neglected by them, the said court shall have the power to remove said board, or such of its number as in its opinion is proper.” Because of its findings, the court below could not properly have done less than decree the removal of all the directors; under what we have said above, since the Act of 1929 has no bearing on the question, we cannot do less than affirm that decree, especially as “this court will consider the matter as before it on certiorari only, and will review the record so far as may be necessary to ascertain whether the court below exceeded its jurisdiction, or abused its legal discretion”: Summit Hill School Directors, 258 Pa. 575, 578. The decree removing the school directors from office is affirmed and the appeal therefrom is dismissed at the costs of appellants. The judgments against the individual school directors are reversed, and the records remitted for further proceedings consonant with this opinion.

OPINION OF THE COURT LARSEN, Justice. The issue presented in this case is whether remand for the appointment of new counsel is required when a claim of ineffective assistance of counsel is made on direct appeal and it is clear from the record that the claim is meritless. On July 1, 1976, John Meehan was killed during the course of a robbery in Philadelphia, Pennsylvania. On August 18, 1976, Darryl McBee (appellee) was arrested in Virginia while visiting his brother and sister-in-law. Subse quent to his arrest, appellee had the benefit of advice from his brother, sister-in-law and Attorney John Garland, a friend of the family. All “essentially advised [appellee] to make no statement to the police concerning the charges.” Appellee’s brief at 2. At the extradition hearing on August 19, 1976, appellee was again advised by his brother, Garland and a court-appointed attorney to remain silent. Court of Common Pleas Slip op. at 29-30. On August 23, 1976, appellee was transported from Virginia to Philadelphia. During that trip, after being advised of his Miranda rights, appellee gave an inculpatory statement to the police. Prior to appellee’s trial in Philadelphia, appellee’s then-counsel filed a motion to suppress the inculpatory statement given by appellee, alleging, inter alia, that the statement was given by appellee involuntarily. Prior to the suppression hearing, appellee was appointed new counsel. Appellee’s suppression motion was denied. In January, 1977, appellee was found guilty of murder in the second degree, robbery and criminal conspiracy. On appellee’s first appeal to the Superior Court, that Court, en banc, reversed appellee’s judgment of sentence and remanded the case for a new trial. Commonwealth v. McBee, 267 Pa.Super. 49, 405 A.2d 1297 (1979). The Superior Court at that time held that an erroneous voir dire ruling required appellee to receive a new trial. In that same appeal, appellee also raised the issue of the admissibility of his inculpatory statement, which Superior Court disposed of as follows: Appellant [appellee] contends that the lower court erred in admitting his confession to police because it was involuntary. Specifically, he claims that this confession resulted from physical abuse, threats, and cajolery by the police. However, testimony of the interrogating officers refuted this claim and was credited by the suppression court. Because the evidence supports the suppression court’s findings, we conclude that this claim is without merit. See Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977); Commonwealth v. Washington, 259 Pa.Super. 407, 393 A.2d 891 (1978). Appellant [appellee], a 17 year old juvenile at the time of arrest, also contends that the lower court should not have admitted his confession because it was taken (a) in the absence of a consultation with an interested and informed adult, Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), and (b) contrary to an agreement that appellant’s [appellee’s] counsel be present, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976). Because appellant [appellee] failed to raise the McCutchen issue pre-trial and the Brewer issue in post-verdict motions, we hold that he has waived those issues. See Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). 267 Pa.Super. at 51-52, 405 A.2d at 1298. On June 14, 1980, appellee’s third and final trial, at which his inculpatory statement was introduced as evidence resulted in a verdict of guilty of murder in the second degree and robbery. Appellee filed post-trial motions in which he alleged, among other claims, ineffective assistance of his prior counsel and ineffective assistance of his present counsel, in their failure to raise the issue, in the 1976 suppression motion, that appellee was a minor at the time he gave the inculpatory statement, and that he did not have access to an “interested adult” during the time he gave his inculpatory statement; thus his inculpatory statement was per se not knowing and intelligent. This per se rule was established by the case Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). In September, 1981, appellee’s post-trial motions were denied and appellee was sentenced to life imprisonment on the murder in the second degree charge and 6 to 20 years imprisonment on the robbery charge, with both sentences running concurrently. On appeal to Superior Court from appellee’s final trial, appellee’s counsel raised various claims, including his own ineffectiveness as trial counsel at the first trial in failing to raise and preserve a McCutchen issue. The Superior Court, by per curiam order filed January 4, 1985, remanded appellee’s case for appointment of new counsel. Commonwealth v. McBee, 341 Pa.Super. 617, 491 A.2d 919 (1985). In its memorandum opinion, the Superior Court disposed of the ineffective assistance of counsel claim as follows: This appeal is from a judgment of sentence for second degree murder and robbery. We are unable to address appellant’s [appellee’s] arguments on appeal because, through appellate counsel, who also represented appellant [appellee] at trial, appellant [appellee] claims, among other things, that trial counsel was ineffective. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Serianni, [337] Pa.Super. [309], [486] A.2d [1349], (1984) (filed December 19, 1984). Appellant [appellee] argues, however, that we may entertain this appeal since trial counsel’s ineffectiveness is clear on the face of the record. See Commonwealth v. Fox, supra. We cannot agree. See Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984) (no rebuttable presumption that juvenile is incompetent to waive Miranda rights without first having opportunity to consult with interested adult); overruling Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983) (interested adult rule of Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), replaced with presumption that juvenile is incompetent to waive Miranda rights). We therefore remand for the appointment of new counsel to represent appellant [appellee]. Jurisdiction is relinquished. Mem.Op. at 1-2. We granted the Commonwealth’s petition for allowance of appeal and now reverse. In Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984), the Superior Court held, “that where counsel argues his own ineffectiveness, unless reversible error is apparent from the record, the case must be remanded for the appointment of new, independent counsel.” 337 Pa.Super. at 315, 486 A.2d at 1352. However, in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) this Court held “that where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” 505 Pa. at 361, 479 A.2d at 957. The Serianni decision of the Superior Court departed from the controlling law and is now disapproved. When appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless. Thus, appellee’s assertion that “a remand for the appointment of counsel is necessary in all cases in which counsel argues his or her own ineffectiveness” is without merit. Appellee’s brief at 8. Our standard of review of the claim of ineffective assistance of counsel remains as follows: This Court recently reiterated the appellate standards for reviewing claims of ineffective assistance of counsel; in Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983) we stated: We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605-06, 235 A.2d 349, 352-53 (1967): [Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498 (1980). It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Commonwealth v. McNeil, 506 Pa. 607, 614-15, 487 A.2d 802, 805-06 (1985) (emphasis in original). Moreover, implicit in these standards is the requirement that the defendant must demonstrate that he was harmed by his attorney’s alleged ineffective assistance. As we first observed in Commonwealth ex rel. Washington v. Maroney, supra: Cases such as Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966) and Commonwealth ex rel. Jones v. Maroney, 417 Pa. 567, 209 A.2d 285 (1965) indicate that, for relief to be granted, appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice____ Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Obviously, then if there is no reasonable basis to support trial counsel’s decision (a finding prerequisite to a conclusion of ineffectiveness), his decisions a fortiori were prejudicial to the client. Commonwealth v. Griffin, 511 Pa. 553, 567, 515 A.2d 865, 871-72 (1986). As to the claim that appellee’s counsel was ineffective in failing to raise and preserve the “interested adult” rule of McCutchen in his 1976 suppression motion, both the Commonwealth and appellee now concede that the “totality of the circumstances” rule governs our determination of the admissibility of appellee’s inculpatory statement. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). Williams was the culmination of our refinement of the standard governing the area of juvenile confessions. The record in the case at hand reflects that subsequent to appellee’s arrest, he conferred with his brother, sister-in-law and Attorney Garland. All told appellee to remain silent and make no statement to the police concerning the charges filed against him. At the extradition hearing, appellee was again advised to remain silent by his brother, Attorney Garland, plus his court-appointed counsel and the judge presiding at the extradition hearing. Nonetheless, four days later, while being transferred to Philadelphia, appellee chose to give an inculpatory statement. There is no assertion or indication that appellee was not of normal intelligence or that he was under the influence of drugs or alcohol at the time of his statement. Additionally, it had previously been found by the lower court and by Superior Court, on appellee’s first appeal, that he had not been subjected to physical abuse or threats at the time he made the inculpatory statement. Thus, reviewing the “totality of the circumstances”, it is clear that appellee’s inculpatory statement was knowing and intelligent and therefore counsel was not ineffective in failing to raise or preserve an issue concerning appellee’s youth as it relates to the knowing and intelligent waiver of his rights prior to giving his inculpatory statement. Failure to raise a meritless issue is not ineffective assistance of counsel. See Commonwealth v. McNeil, supra. The order of Superior Court remanding appellee’s case for the appointment of new counsel is reversed and the case remanded to Superior Court for disposition of appellee’s remaining allegations of error. NIX, C.J., and ZAPPALA, J., note a dissent. . Appellee’s present counsel has been his counsel since that time and has represented appellee through all phases of this criminal matter. . On remand, appellee's second trial resulted in a finding of guilty on the criminal conspiracy charge. However, a mistrial was declared as to the robbery and murder charges when the jury could not reach a verdict. Appellee was granted a new trial from the finding of guilty on the criminal conspiracy charge, but was never brought to trial on that charge. See Appellee's brief at 5. . If the “interested adult” rule of McCutchen were applicable, it is clear from the record that appellee was afforded and realized several opportunities to speak with “interested adults” prior to giving his inculpatory statement. Therefore, the ineffective assistance of counsel claim would be meritless. Further, throughout the 10 year course of this criminal proceeding, appellee has been classified as a juvenile. In fact, his age, at the time he gave the inculpatory statement, has been stated as, at various times, 17 years or 17 years 7 months. Appellee’s mother testified that his age at the time of arrest was 17 years. See Transcript of June 12, 1980 at 141. However, a City of Philadelphia Police Department Arrest Report and a City of Philadelphia Municipal Court Hearing List reflect appellee’s age, in 1976 to be 18. Additionally, at the sentencing hearing on September 18, 1981, the birthdate of appellee was stated as February 6, 1958. See Transcript of September 8, 1981 at 8. Review of various papers in the record on which appellee’s date of birth is recorded reflects that his date of birth was February 6, 1958, which would make appellee 18 years old at the time he made the inculpatory statement (August, 1976), and thus void any McCutchen issue. . Initially, in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), this Court established a per se rule that a juvenile could not knowingly and intelligently waive his rights to counsel or to remain silent, without first being given an opportunity to confer with an adult, who was interested in the juvenile’s welfare and was informed of the juvenile’s rights. The “interested adult” rule of McCutchen was overruled in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983). In Christmas, the rule of McCutchen was replaced by a presumption that a statement, given by a juvenile, in the absence of an opportunity to confer with an interested adult was inadmissible. The presumption could be rebutted by a showing that the juvenile-made a knowing, intelligent and voluntary waiver under the totality of the circumstances. These circumstances included the juvenile’s age, background, experience, intelligence, etc.

The opinion of the Court was delivered by Ro&ers, J. testator devised to his son, Levi Downer, the defendant, tbe premises in dispute, to him, his heirs and assigns forever: provided, however, that he shall pay over to his executors, for the benefit of the legatees thereafter mentioned, the sum of 3500 dollars, in four payments: viz. 500 dollars within three calendar months after his decease, and 1000 dollars yearly after-wards, until the whole was paid. This is, most clearly, a conditional estate, for where land is granted to a person “on condition,” or “provided always,” or “if it shall so happen,” or so “that he pay to another a specific sum,” within a specified time, it vests in him a conditional.estate, and if he does not punctually make payment of the money, his estate has become voidable by entry. Co. Pitt. 303; Wheeler v. Walker, 2 Conn. Rep. 201. The devisee having refused to pay or accept the devise, according to the authority of the case of Wheeler v. Walker, it reverted to the heirs of the devisor, who had a right to enter, for the condition broken and bring suit by ejectment for the recovery of the land. In the case cited, the question was, whether it was a devise of an estate to the son, in trust to pay a certain sum to the widow and a certain sum to each of the daughters, within a specified time, or whether it was a conditional estate. The court held it to be a conditional estate, and as such the action by ejectment .by the heirs would lie to recover • the possession. Whereas, if it had been a trust, as was contended, ;the remedy would have been only in chancery. R is not to be understood the court decided that even in the case of a conditional devise, the daughters might not enforce payment of .the money payable to them by application to a court of chancery. Nor do I .understand them to intimate, but directly the contrary, that the recovery of the heirs enures to their sole and exclusive benefit, divested of the lien of the money ordered to be paid by the testator to his widow and daughters. It would be unreasonable and unjust to hold that .the refusal of the devisee to accept, or his subsequent failure to pay, could operate so injuriously to their rights. But this would seem to be the effect of the decision of the learned judge who tried this cause, for if the devisee died intestate, so far as this . property is concerned, it would seem to follow that the proceeds, .or the land itself, must -be equally divided among all the heirs of the testator, to the exclusion of the rights of-those.members of the family to whom this money is bequeathed. This construction would • undoubtedly defeat the intentipn of the testator, which is the cardinal rule. The court consider this as a lapsed devise, but a lapsed devise is where the devisee-dies after the making.of the will and ■before the testator. But here .the devise.e ,is .still-aliye, and the estate immediately vested, upon the death of the testator, as a conditional fee simple. Hayden v. Stoughton, 5 Pick. Rep. 533. This was a condition subsequent, and the estate vested immediately in virtue of the devise. The fee does not rest in abeyance until the' devisee accepts the devise, nor until he pays -the money. Whether a person dies testate or intestate must be determined at .the death of the testator, and cannot rest on matters of subsequent occurrence. If this be so, the question is, what power had the executors to sell? Their power by the will only extends to the sale of such real estate as was not otherwise disposed of by the testator. From this it necessarily results that the sale to the plaintiffs by the executors is void, and that the title of the defendant, derived from the proceedings of the orphans’ court, is also void. It at one time occurred to us, on the authority of Wheeler v. Walker, 2 Conn. Rep. 201, that this suit might be supported by the plaintiffs, as the heirs of the testator. And this is so at common law; but since the passage of the act the 24th of February, 1S34, which gives a remedy to the legatee, the remedy by ejectment is taken away, as it would be in the teeth of another act, which declares, that.in all cases where a remedy is provided, or duty enjoined, or any thing directed to be done, by any act or acts of this commonwealth, the direction of said acts shall be strictly pursued, &c. The act of the 24th February, 1834, enacts, that “ when a legacy is or shall be hereafter charged upon or payable out of real estate, it shall be lawful for the legatee to apply by bill or petition to the orphans’ court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed; whereupon such court, having caused due notice to be given to such executor, and to the devisee or heirs, as the case may be, of the real estate charged with such legacy, and to such other person interested in the estate as justice may require, may proceed, according to equity, to make such . decree or order touching the payment of the legacy out of such real estate as may be requisite and just. Although the interest which the plaintiffs have under the devise is not technically a gift, or legacy, yet it may be considered an interest payable out of the real estate devised. The land is the fund to which the beneficiaries must look for the payment of the pecuniary bequest to them. They have no personal action against the devisee, he having .refused to accept the devise, and unless the fund is made available to them, they are without remedy. This is a remedial act, and it would impair its usefulness to give it a narrow construction. The act provides for calling all the parties in interest before the court, who have power in -the premises to do all a court of chancery could do, and under their plastic hands to.administer justice in a most complete, and ample manner. In the case at bar they may order the property to be sold and may distribute the proceeds, paying in ,the first place the pecuniary, bequest to the legatees, and if. any thing should remain, distributing the surplus to the heirs of the devisor. Cases may arise where a devisee-may refuse to accept a devise of greater value than the money charged upon it. If such a case should occur it would .be but equitable that it should enure to the benefit of all the heirs and not exclusively to the legatees. Judgment affirmed.

The opinion of the court was delivered by Woodward, J. Mr. Geyer had ho lien on the fund attached, by virtue of the professional relation betwixt him and and his client, but we think that, under the facts disclosed in his testimony, he had an equitable assignment. He wanted more than $100 for his services, but WolfTvdiifd agree to give no more, but that sum he agreed to give “ out of the verdict,” if Geyer would try his cause. Geyer did try the cause, and as between himself and Wolf, he acquired thus an equitable right to receive the $100; Wolf would be estopped from demanding it in face of his agreement. Now, the Act of Assembly under which Patten attached this money in the hands of Wilson, says, that debts attached in execution shall be “subject, nevertheless, to all lawful claims thereupon.” See § 22 of Act of 16th June 1836, relating to executions. The effect of this provision is, what perhaps would have been decided without it, to place the attaching creditor, as regards the rights of third parties, exactly in the shoes of the debtor. If Wolf could not claim this money, as against his counsel, Geyer, neither can Wolf’s attaching creditor. All the equities which Geyer could set up against Wolf, are equally available to him as against Patten. And this decides the cause. We make no account of the assignment to Large. It was void as against Wolf’s creditors. It is not that, but the equitable assignment to Geyer, which defeats the plaintiff. An observation of the learned counsel for plaintiff in error, is worthy of notice as applicable to both of these assignments. He argues that, as the claim was for unliquidated damages in an action sounding in tort, it was not capable of assignment before verdict. Strictly that is true. But it is true only in respect to the rights of third parties. As between Wolf and Geyer, an assignment or agreement to assign the whole or part of a future verdict, would be binding, and, being founded on sufficient consideration, would be enforced. Such agreements between counsel and client are common; more frequent, indeed, than they ought to be. They have attracted the animadversion of this court, more than once; but they bind the parties, and the attaching creditor of one of the parties succeeds to no higher rights than he possessed. The judgment is affirmed.

Opinion by Judge Kramer, This is an appeal filed by the Aluminum Company of America (Alcoa) from an order (decision No. B-113064) of the Unemployment Compensation Board of Review (Board), dated June 14, 1972, in which the adjudication of the Board’s referee was affirmed, thereby making William C. Miller (Miller) eligible for unemployment compensation benefits. This case had its beginning on July 1, 1970, when Alcoa sent a letter to the employes of its New Kensington plant advising them that for economic reasons Alcoa had decided to “phase out jobbing operations” at that plant by March 31,1971. In addition to the usual statement of regrets concerning this unpleasant news, Alcoa advised its employes that “[e]ach person’s situation will be discussed with Mm by Personnel people during the phase-out period, wMch will begin as soon as possible.” Approximately 1,400 people worked at the New Kensington plant, and the record indicates that it was the intent of the company to eliminate approximately 1,000 jobs. Miller (born in December 1912) had been employed by Alcoa for slightly more than 33 years at the time of the July 1970 notice letter. He was a semiskilled mechanic receiving a wage of |3.68 per hour. Miller was laid off on March 12, 1971, and he filed an application for unemployment compensation benefits on March 13,1971. On April 1,1971, Miller accepted early retirement. Subsequent to the 1970 notice letter, the United Steel Workers of America, Local 302 (UMon), and Alcoa entered into an agreement wMch provided that the normal method of terminating employes by seniority at the time of shutdown would not be followed, and that em ployes with sufficient service would be given the opportunity to elect early retirement. Pursuant to this agreement the employes electing early retirement would receive, in addition to their full pension (in Miller’s case $215 per month), a supplemental pension of $100 per month payable until each employe was eligible for maximum social security benefits at age 65. This supplemental payment was to become effective with pension payments on and after April 1, 1971. In addition, the agreement provided that the employes would have the option of refusing early retirement, and in accordance with certain seniority provisions, could “bump” into other jobs which might be available at other Alcoa nearby plants. The Bureau of Employment Security (Bureau) originally ruled that Miller was eligible for unemployment compensation benefits for the period from March 12, 1971 until April 1, 1971 (the date of his early retirement) but that he was ineligible for benefits after that date. Apparently because Miller’s situation was typical, on appeal to the referee, his claim was made the principal one for the establishment of the claims of other employes similarly situated. The referee found (and the record supports) that Miller was led to believe that if he exercised his “bumping” privileges and thereafter retired, he would lose the $100 supplemental benefit mentioned above. Therefore, the referee decided that Miller’s retirement was not of “his own free will” and allowed benefits for the period following April 1, 1971. As stated hereinbefore, the Board affirmed the adjudication of the referee. Our scope of review in unemployment compensation cases is confined to questions of law, and absent fraud, a determination as to whether the Board’s findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the Board. Furthermore, the party victorious below should be given the benefit of any inferences which may be reasonably and logically drawn from the evidence. See Hinkle v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 512, 308 A. 2d 173 (1973). Before considering the merits of this case, it is first necessary to deal with a procedural irregularity in the record. The caption of this case in the Board’s decision reads “In Re: Claim of William C. Miller, et al.” (emphasis added), and appended to the Board’s adjudication is a list of 99 names in addition to that of Miller. The Board obviously intended its adjudication to cover the claims of all of the 100 people named on the list. An identical list of 100 names is also appended to the transcript of testimony from the hearing before the referee. However in that list five names have been bracketed by a red pencil with the notation “Did not appeal.” Despite this notation, the referee’s decision has attached to it a list of 100 names including the five names with the “Did not appeal” notation. Alcoa, in its appeal from the referee’s decision stated that it was appealing 95 cases and attached a list of 95 names which was identical to the list before the referee except for the fact that it excluded the five names with the “Did not appeal” notation. The record is made even more confusing by the fact that the Board’s adjudication includes the list of 100 names including the five names which Alcoa neglected to appeal. This Court has no way to determine who made the notation “Did not appeal” in red pencil before the five names on the list before the referee. We also have no way of determining exactly what is meant by that notation. It is possible that the notation is intended to mean that those five individuals did not appeal to the referee from the Bureau. If that is the case, then those five individuals were not before the referee, were incorrectly included in his order and quite correctly not appealed by Alcoa. It is also possible, however, that the notation is intended to show that Alcoa neglected to appeal the cases of five individuals from the decision of the referee. If that is the case, then those five cases were determined by the referee, were not appealed and thus were incorrectly included in the Board’s adjudication. It would appear that the five above-noted individuals had their cases determined by either the Bureau or the referee and should not have been included in the Board’s decision because either Alcoa did not include the five in its appeal to the Board, or the five never appealed to the referee. We will now consider the merits of Miller’s case. The issue which was presented to the referee, the Board, and to this Court is the same. That is, under the facts of this case, was Miller entitled to unemployment compensation benefits and not disqualified by the provisions of Section 402(b) (1) of the Unemployment Compensation Law (hereinafter Act), Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802(b) (1). Section 402(b) (1) of the law reads in pertinent part as follows: “An employee shall be ineligible for compensation for any week— “(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in ‘employment’ as defined in this Act. . . Obviously Miller’s case turns on the question of whether or not he “voluntarily left work without cause of a necessitous and compelling nature.” An employe may sustain his burden of showing that his voluntary termination of employment was with cause of a necessitous and compelling nature by demonstrating that his conduct was consistent with ordinary common sense and prudence. See Zinman v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 649, 305 A. 2d 380 (1973). The circumstances prompting the severance of employment relationship must be “real not imaginary, substantial not trifling” and “reasonable not whimsical.” See Goldstein Unemployment Compensation Case, 181 Pa. Superior Ct. 255, 124 A. 2d 401 (1956). Alcoa contends that Miller’s termination of employment was voluntarily assumed. According to Alcoa, Miller merely exercised his option to retire early and thereby receive the supplemental pension. Alcoa contends that because Miller could have bumped into another position because of his seniority, he cannot contend that he left work with cause of a necessitous and compelling nature. The problem with Alcoa’s position is that the record does not support its various contentions. The record supports Miller’s and the Board’s contention that no one at Alcoa ever offered Miller another job. The record further supports the proposition that none of the employes affected by this phase-out operation had any assurance that any job to which the employe might be bumped would last for more than a few weeks or months. At the hearing, Alcoa contended that there was at least one janitorial job (at $3,092 per hour) which Miller could have filled if he had decided to “bump.” However, there was no showing that Miller had sufficient seniority to assure him of any janitorial job for any period of time, if someone senior to him also “bumped” for the same position. Prom our reading of the record, we have no reservation that the $100 supplemental benefit was offered as an inducement to Alcoa’s employes in order to bring about a reduction in the work force by voluntary retirement. Each employe signed a special retirement agreement wherein he exercised his option; but that agreement does not in any way detract from the proposition that Alcoa initiated the work force reduction plan. Alcoa complains that the Board has placed the burden upon it to explain to its employes the rights each had under the bumping process. The record shows that Alcoa voluntarily assumed that burden when in the July 1, 1970 letter it told its employees that each of their individual problems would be handled by someone in Alcoa’s personnel office. The record clearly shows that Miller’s decision to retire was consistent with ordinary common sense and prudence. He was offered a concrete benefit as an inducement to retire and was led to believe that he would lose that benefit if he “bumped.” In contrast to the concrete benefit offered for retirement, the “bumping” option was presented as a vague and tenuous proposition which would be of short term duration. Under such facts, the Board was correct in its determination that Miller’s separation from employment was involuntary. The stated intent of Alcoa’s phase-out procedure was to induce its employes to accept early retirement. Alcoa accomplished that goal by convincing its employes that early retirement was the best course open to them. Alcoa also argues that Miller and the other claimants were represented by the union and that through the union they voluntarily agreed to the termination of employment. It is true that the union negotiated a special retirement agreement in this case, but the Supreme Court has held that a collective bargaining agreement should not control the determination of retired employes’ eligibility for unemployment compensation. See Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A. 2d 906 (1959). The remaining issue raised by Alcoa, however, is a little more complicated. Either 95 or 100 claims for unemployment compensation benefits were appealed to the referee. In a common-sense approach to this problem, the referee proceeded to hear all of the claims at a series of consolidated hearings. There is no stipulation in the record indicating that Alcoa agreed that a determination of Miller’s claim would be dispositive of all the remaining claims. Out of a total of seven findings of fact made by both the referee and the Board, findings of fact nos. 2, 3, 4 and 5 may be construed as relating to all the claimants. However, findings of fact nos. 1, 6 and 7 relate solely to the Miller claim. Neither the referee nor the Board made any specific findings as to each of the other claimants and Alcoa points out in its argument to this Court that the record contains the testimony of several witnesses who related circumstances concerning their employment termination which were factually dissimilar from the circumstances applicable to Miller. For instance, one claimant stated he would have retired in 1970 for health reasons, but decided to stay around for the proposed phase-out in order to obtain the extra f 100 supplemental retirement benefit. One claimant retired prior to the notice letter of July 1, 1970, and therefore was not even involved in the phase-out. Other claimants were union officials who may have had sufficient knowledge of the bumping procedures, availability of jobs and seniority so as to permit them to make a decision which could be determined to be a voluntary termination of employment without cause of a necessitous and compelling nature. To be sure, Section 505 of the Act, 48 P.S. §825, permits the referee or Board to jointly conduct one hearing involving the claims of many employes whose claims are the same or substantially similar. That provision in the statute, however, does not permit the use of such a joint or consolidated proceeding where the results may be prejudicial to any party. At this writing, we have no way of knowing whether the Board would have made the same findings that it made in Miller’s case for all of the claimants. The Board did not make a determination that its findings in the Miller case were applicable to all the other claims. For this reason it is necessary for us to remand this matter back to the Board with direction that the Board undertake to determine whether all of the findings made in the Miller claim are applicable to the other claims before the Board, or whether there are different circumstances involved in any of the remaining claims which might affect the claimants’ eligibility for benefits. The Board is specifically directed to determine whether each of the claimants terminated his employment subsequent to the July 1,1970 notice letter under Alcoa’s phase-out procedure, whether any claimant was given any assurance of any job to which he could bump for any specified period of time, whether any claimant was clearly advised by the personnel department of Alcoa as to all of his rights under the options available to him, whether any of the claimants voluntarily terminated their employment for reasons other than the phase-out intentions of Alcoa, and whether any claimant voluntarily terminated his employment for reasons other than the inducement by Alcoa of the f 100 supplemental benefit. In summary, our reading of the record in this case and the applicable law, permits us to conclude that Miller is not disqualified from unemployment compensation benefits under Section 402(b) (1) of the Act. The order of the Board, insofar as it is applicable to Miller, is hereby affirmed; and as a result of the above discussion, we therefore Order And Now, this 8th day of August, 1974, it is hereby ordered that this entire matter be remanded to the Unemployment Compensation Board of Review, with the exception of the claim of William C. Miller (appeal no. B-71-K-16), in order for the Board to mate findings of fact and conclusions of law applicable to all of the other claims involved, to be prepared individually for each claimant or by class of claimants specifically designated; and in order for the Board to determine the present status of appeal nos. B-71-8-I-55, 71-8-1-56, 71-8-1-57, 71-8-1-58 and 71-8-1-59; whether this remand requires additional hearings is to be determined by and in the discretion of the Board. Bumping is the label given the process whereby one employe with more seniority “bumps” or removes another employe with less seniority from a position which is then filled by the employe with more seniority. Tlie five claimants and tbeir appeal numbers are as follows: Claimant Appeal No. Maximim Spak 209 Marlborough Dr. New Kensington, Pa. B-71-8-I-55 Andrew Remper 300 S. 10th Avenue Tarentum, Pa. 71-8-1-56 Max T. Freeman 1326 Leishman Ave. New Kensington, Pa. 71-8-1-57 George E. Hill 921 Corbet Street Tarentum, Pa. 71-8-1-58 Gernard A. Glover 1815 Kimball Ave. Arnold, Pa. 15068 71-8-1-59

Opinion by Mr. Justice Kephart, The defendant, a manufacturer of milling machinery which required the construction of rotary parts of a variety of sizes, purchased a machine to determine the balance of these parts. Plaintiff sent its engineer to defendant’s plant to inspect the work being done there and recommended the type of machine to be used. The one selected was received July, 1926, and set up August 31st, at which time a demonstration was made. Efforts were then made by defendant’s employees to familiarize themselves with the machine, and place it in operation. This continued until September 28th, when the efforts were discontinued, it being claimed they were unsuccessful; plaintiff was then notified of defendant’s election to rescind the contract; this was not accepted and plaintiff brought this action to recover the purchase price. The rescission interposed as a defense was based on a breach of express and implied warranties. The express warranties were, first, the machine would function in the hands of a nonexpert operator; second, it would operate without the use of charts or mathematical calculation; third, it would perform certain specified functions more quickly than certain other specified machines; fourth, the machine was the most economical machine for balancing defendant’s rotary parts, plaintiff being familiar with the parts to be balanced. The implied warranty was that, plaintiff having superior skill and judgment, and having had made known to it the particular purposes for which the machine was required, and having made a specially constructed machine for defendant’s purpose, there was an implied warranty that it should be reasonably fit for the buyer’s use. During the course of the trial the parties agreed that the case should be tried by the judge without a jury; at its conclusion, a judgment was entered for plaintiffs; this appeal followed. Most of the questions revolve around facts that have been found adversely to appellant by the hearing judge. Findings of fact by a judge, sitting without a jury, have the force and effect of a verdict, and will not be interfered with where there is evidence to sustain them: Hall v. Lyon, Singer & Co., 286 Pa. 119; McDonald Construction Co. v. Gill, 285 Pa. 305. The court below found defendant, had-not, notified plaintiff within a reasonable time of the breach of any warranties, and that its notice of rescission did not adequately cover the warranties mentioned above. Section 69 of the Sales Act of May 19, 1915, P. L. 513, requires notice of an election to rescind to be given within a rea sonable time. The rule of law applicable to the facts in determining reasonable time has been frequently stated: “Where the facts are undisputed, the question as to whether there has been an unreasonable delay is one of law for the court”: Leaming v. Wise, 73 Pa. 173; Morgan v. McKee, 77 Pa. 228; Davis v. Stuard, 99 Pa. 295; Wright v. General Carbonic Co., 271 Pa. 332; Crunden Martin Mfg. Co. v. Turner, 274 Pa. 425; Riddle v. Taubel, 277 Pa. 95; Elk Textile Co. v. Cohen, 75 Pa. Superior Ct. 478; Werbitsky v. Fisher, 64 Pa. Superior Ct. 284; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339, etc. This is a partial statement of the correct rule, although it has been applied as covering all situations in many instances. What is a reasonable time is what a reasonable, prudent man would do under given time and circumstances. It is a question of fact which will vary under different conditions, so much so that no fixed rule can be laid down. In the first instance, the question is one of fact and like all such questions should be for the jury. But in cases where but one inference can be drawn from the facts, the court may decide the question as a matter of law. It is not because the facts are “clear” and undisputed that the court so acts, but because one inference alone can be drawn from the facts on which reasonableness depends. Whether there is any evidence to support a finding of fact is always a question of law; this is doubtless all that is meant by the statement, “reasonable time is for the court.” Hesse v. Gude Bros.-Kieffer Co., 170 N. Y. Supp. 211. See also Marmet Coal Co. v. People’s Coal Co., 226 Fed. 646. The principle put in short form is stated in Riddle v. Taubel, supra: “What is a reasonable time in which to comply, where the facts are undisputed, is for the court; otherwise, or where the court is in doubt, the question is for the jury.” See also Williston, Sales, section 484A. The rule, therefore, may be thus laid down: What is a reasonable time is a question of fact for the jury; but where the facts are undisputed, and but one inference can be drawn therefrom as to reasonableness, the question becomes one for the court. The matter is by no means one which a judge is required to decide in each instance, but only in the limiting cases as indicated. In determining the question the court below found the following express warranty had been made and breached: “that all that was required to do was to put the appliance on a machine and it would indicate the amount and location of unbalance.” When plaintiff’s engineer demonstrated the machine on August 31, 1926, defendant then knew that this warranty had failed, and the machine would not indicate the amount of unbalance without calculation and use of a chart. It waited a month before giving notice. The lower court held this was an unreasonable time, and we concur in its conclusion. If defendant wanted to rescind, it should have acted promptly. The vendor was entitled to this knowledge, as a matter of business, and the breach was one that was immediately discoverable. It was not necessary to specify in the notice of rescission this specific breach of warranty. A notice of rescission must be clear and unambiguous, conveying an unquestionable purpose to terminate the contract. Where, from the conduct of the one having the right to rescind, it is not clear whether he has rescinded the contract or not, he will be deemed not to have done so: Wright v. Bristol, P. Leather Co., 257 Pa. 552, 556; Black on Bescission of Contracts, vol. 2, section 574. But the reasons on which rescission is based need not be specified; rescission as a fact is all that is necessary to be given. The purpose is to advise the seller that he must meet a claim for damages, as to which he shall have early warning: American Mfg. Co. v. U. S. Shipping Board Emergency Fleet Corp., 7 F. (2d) 565. “It is not material that a notice for the rescission of a contract fails to specify the ground for cancellation, if such ground exists and there has been no waiver of it”: Black, supra, section 573. The seller in the first instance cannot demand that the buyer advise him of the nature of the defect which he himself has caused. He can only insist that within a reasonable time he may know the fact. If the seller, after notice of rescission, inquires of the buyer the reasons for his action, the latter should specify the reasons for rescission, but this would not deprive the party asserting the rescission from submitting on trial all the causes mentioned in the pleadings. Section 15 of the Sales Act, P. L. 543, provides: “Fourth. In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.” While the correspondence described the machine in suit as an Olsen-Carwen Static-Dynamic Balancing Machine No. 3-C, nevertheless, the defendant contends it was obviously a machine for this particular purchaser, changed in dimensions and construction to handle a much larger range of weights than any standard machine manufactured by the plaintiff. But, plaintiff urges that the change was only one of capacity and not a change in the working principle, and the court below found this as a fact and that it was sold under a patent or trade name. Under paragraph 4 of section 15 no implied warranty may arise relative to its fitness for any particular purpose where a specified article is sold under its patent or other trade name. A warranty in connection Avith such an article must arise under circumstances equivalent to an express warranty. Even the warranty here asserted, if considered an. express one, would not avail if it was not breached, and there is no evidence that the machine would not function, nor does defendant claim that it did not function. Indeed, the greater part of its testimony was consumed in an attempt to prove plaintiff warranted that defendant’s employees could run the machine and that in fact defendant had no employee who could do so; but the court found against this claim. As to other express warranties submitted, the court answered them by holding: “The credible evidence proved that no such attempt to operate the machine was ever made as would show, or even tend to show, that the warranties were breached. The evidence showing that similar machines were operated successfully in other plants by their workmen is persuasive evidence that no real attempt was made in this case to operate the machine so as to prove what it would perform.” We have carefully considered the record and find nothing to disturb the findings and conclusion of the court below. The case was carefully tried and ably presented here by both parties. The judgment of the court below is affirmed.

Opinion by Mk. Chief Justice Moschziskek, This is an appeal from an order of the court below dismissing an appeal from an order of the register of wills of Fayette County, who refused to admit to probate a certain writing, purporting to be a copy of an alleged lost will. The appellant, Mary Zidek, is named as sole beneficiary and executrix in tbe paper which was refused probate. The petition for probate recited, inter alia, that F. G. Sebik, the alleged testator, who died July 19, 1926, had in 1921 executed a will in appellant’s favor, which he delivered to her; that this document, which was “in existence......at the time of the death of the said decedent......and for several days thereafter,” has since been “lost or destroyed,” that “another paper, dated July 14, 1915, purporting to be the last will and testament of the decedent, was probated on July 29, 1926,” and letters testamentary granted thereon; that the writing attached to the petition was not sooner offered for probate “because of the difficulty and uncertainty of proving the facts” above recited, although the petitioner was “at all times cognizant” of such facts, and is now in a position to “produce the necessary witnesses” to establish them. As already stated, a will of decedent, or what was then formally proved as such, had been duly probated in July, 1926; that probate has never been appealed from and stands unimpeached. The petition to admit to probate the alleged later will, tendered by the present appellant, was not filed till January, 1929, and neither this petition nor any other pleading on the record before us alleges fraud in connection with the probate of July, 1926. The orphans’ court, in its opinion in support of the order appealed from, well states that “A register is a judge, and the admission of a will to probate is a judicial decision, [which] can only be set aside on appeal, and is unimpeachable in any other proceeding,” citing Holliday v. Ward, 19 Pa. 485, 489, and Kern’s Est., 212 Pa. 57, 61. See also Shoenberger’s Est., 139 Pa. 132, 141, 142. We agree with the court below that, in a case like the present, where there has been a prior probate of a paper thereby accepted as the last will of the decedent, and an alleged testamentary writing bearing a later date is subsequently discovered, it is necessary, when the latter is not merely a codicil to the former, for its proponent to appeal from the earlier probate. On such appeal the orphans’ court will take evidence to enable it to determine the issues involved and, if the paper offered for probate is in fact and law the last will of decedent, the court will make an appropriate order so that it may be probated accordingly. Prior to the Register of Wills Act of June 7, 1917, P. L. 415 (which, generally speaking, is a compilation of then existing law), we decided that, though the decision of a register granting letters of administration on a decedent’s estate would not prevent the probate of a will subsequently discovered (Agnew’s App., 37 Pa. 467, 468), yet where a paper had been formally probated as the will of a testator and letters granted thereon, no other alleged testamentary writing could be accepted by the register as the testator’s will unless, on an appeal from the first probate, he was ordered so to do. In Cochran v. Young, 104 Pa. 333, a paper was admitted to probate, September, 1862, as the last will of one McCandless. In February, 1881, another alleged testamentary writing by McCandless, bearing a later date, was also admitted to probate, but without protest from any one. The matter came before us on an appeal from a judgment of the court below in an action of ejectment for certain real estate lately belonging to the deceased testator. We said (page 336) that “testator could make but one last will”; that (pages 337-8) the first probate of September, 1862, was a judicial act which could not be collaterally impeached, and when the register admitted to probate the paper first offered he necessarily adjudicated that it was “the last will and testament” of the deceased. In Cawley’s Est., 136 Pa. 626, a brother and sister, the latter named Mary Cawley, made a joint will leaving their respective estates to one another for life, with certain limitations over. The brother died and the joint will was admitted to probate. Subsequently, the sister executed a new will revoking the one already probated, so far as it purported to be her will. She died, and the joint will was again offered and admitted to probate, this time as her will. Later, the executor named in the new will asked that the probate of the joint paper, so far as it was accepted as the will of the sister, should be vacated and that the paper offered by him should be accepted as her last will. The matter came to the orphans’ court on appeal; it adjudged the writing bearing the later date to be “the last will” of Mary Cawley, vacated the second probate of the joint will, and directed the probate of the separate will. On appeal to us, we affirmed this order. When Cawley’s Estate was before us a second time (162 Pa. 520), we said, in reciting the facts (page 523), that when the executor named in the separate will of Mary Cawley was informed of the second probate of the earlier joint will as that of his decedent, he “did all that was left for him to do [the italics are ours], viz., he took an appeal from the decree of probate upon the double [joint] will, alleging that the will so proved was revoked by the later will in his possession.” In the last mentioned case, we decided (pages 523-4) that, on an appeal from an earlier probate, the validity as a will of a paper subsequently tendered for probate can be. inquired into and determined. Again, in Com. ex rel. v. Thomas, 163 Pa. 446, 450, in disposing of a somewhat different question, we said in effect that, where a will was admitted to probate and an alleged later one was subsequently discovered, the proper practice for the proponent of the latter was to appeal from the earlier probate, and that on such an appeal “all questions raised by the evidence will be passed upon.” In Beatty’s Est., 193 Pa. 304, 305, we affirmed per curiam an opinion which held that, when a register pro bated a paper offered as a last will, Ms power ceased and “all questions thereafter touching the probate or validity of the will are to be determined by the orphans’ court on appeal.” See also McAndrew’s Est., 206 Pa. 366, and Mathews v. Biddell, 8 Pa. Superior Ct. 112, 114, where it is stated that, “With the probate of the will the register’s judicial powers ceased;......all questions thereafter touching the probate or the validity of the will are to be determined by the orphans’ court, on appeal from the register’s decision, where the proper issue may be framed.” In Stout v. Young, 217 Pa. 427, 429, we said that “the probate of a will unappealed from is conclusive of the fact that it is the will of the alleged testator,” meaning of course the last will. Here no appeal was taken from the probate of July 29,1926, and, therefore, appellant is not in a position to offer for probate the writing alleged by her to be a copy of the last will of testator. The probate of July 29,1926, was an adjudication of the fact that the paper then accepted was the last will of testator, and that judgment can be attacked only on appeal. Appellant points to section 16, paragraph (b) of the Begister of Wills Act, supra, which provides that “the last will of any decedent may be offered for probate at any time” (the italics are ours), and insists that this provision controls the present case; but she entirely overlooks the fact that the record before us shows an adjudication, unappealed from, that a previously dated paper is the “last will” of this decedent. We may add that the statute in question, by paragraph (a) of section 16, particularly provides (in accord with previously established law, above shown) that “the probate of any will, or any other paper purporting to be a will......, shall be conclusive as to all property, real or personal, devised or bequeathed by such will or paper, unless within two years from the date of such probate......those interested shall appeal from the decree of the register.” As before stated, no such appeal in the present case has been entered. Cases which suggest that, where fraud is shown, the judicial decrees of a register may be attacked collaterally, need not be discussed here, for, as previously said, there is no allegation of fraud on this record. Appellees state in their brief: “While it is true that the writing [a copy of which] appellant seeks to have probated has been lost or destroyed, no point is made of that, and appellees grant, as they did in the court below, that the legal proposition is the same as if the proffer were of a paper duly signed and attested.” In other words, this case was presented by both sides on the hypothesis that the alleged copy of a will, which appellant offered for probate, had all the rights in that regard which, under the circumstances, an original testamentary paper would possess. Though, for purposes of disposing of the present appeal, Ave have accepted the basis on which the case was argued, and considered it accordingly, yet it must be understood that nothing said in this opinion is intended to indicate any view on our part as to the validity of the adopted hypothesis. Finally, it should be noted that this case has been treated by all persons concerned on the basis that the previously probated paper and the one now offered for that purpose are antagonistic to one another, not as though the latter were merely supplemental to the former; and this opinion should be read and understood with that fact also in mind. The decree appealed from is affirmed at cost of appellant.

KELLY, Judge: Following a bench trial, appellant, Richard Petras, was convicted of involuntary deviate sexual intercourse involving oral sodomy on a thirteen year old male. On March 18, 1986, appellant was sentenced to a term of three to six years imprisonment. Appellant-contends in this appeal that trial counsel rendered ineffective assistance thereby deny ing him a fair trial. We remand for an evidentiary hearing with respect to one of appellant’s allegations of ineffectiveness. The facts and procedural history of this case are accurately set forth in the opinion of the trial court and will be repeated herein only as necessary for the disposition of the contentions raised by appellant. Appellant contends that, individually and collectively, alleged errors by trial counsel denied him a fair trial. Specifically, appellant contends that his attorney was ineffective in: 1) failing to interview and/or call Edwin C. as a defense witness; 2) failing to impeach the victim with prior inconsistent statements; 3) failing to properly cross-examine the police officers; 4) failing to demand a bill of particulars or to request a continuance; and 5) failing to object to allegedly improper and inflammatory information presented to the sentencing court in the presentence report. We find no merit in appellant’s second, third, fourth, and fifth contentions. With regard to appellant’s first contention, we find we must remand for an evidentiary hearing. We shall discuss each allegation of ineffectiveness seriatim. The burden of establishing ineffective assistance of counsel rests upon the appellant as counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). “In this Commonwealth we have long used, to gauge ineffectiveness of counsel’s stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).” See Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the effectiveness of counsel was described by our Supreme Court as follows: Our task ... encompasses both an independent review of the record,____and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives____ We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. 235 A.2d at 352-53. Our Supreme Court also made clear that, for relief to be granted, the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice: Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. 235 A.2d at 353 n. 8. (Emphasis added). Thus, in order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce 515 Pa. 153, 157-158, 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, 516 Pa. 407, 413, 532 A.2d 796, 799 (1987). (“The standard of review is that there must be a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different.”). When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant “must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,” before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984). Appellant first contends that trial counsel was ineffective in failing to interview and/or present Edwin C. as a defense witness. To obtain relief on this claim, appellant is required to establish that: 1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. See Commonwealth v. Griffin, 357 Pa.Super. 308, 319, 515 A.2d 1382, 1387-88 (1986); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979). Appellant’s proffer met each of these requirements. At a hearing on appellant’s post-verdict motions, appellant’s new counsel proffered evidence that Edwin C. could and would have testified at trial that he was in the van with appellant and the alleged victim the one and only time that appellant and the victim were alleged to have been in appellant’s van together, and that no illegal sexual activity occurred on that occasion. (N.T. 3/18/86 at 9-10). Counsel indicated for the record that Edwin C. was present at the hearing. (N.T. 3/18/86 at 11). Appellant’s motion for a new trial was denied on the basis of the proffer without entertaining testimony from Edwin C. (N.T. 3/18/86 at 18). It is important to note the alleged victim testified at trial that: Edwin C. and his cousin Tito introduced him to appellant (N.T. 9/18/85 at 18); he believed that Edwin C. was in the van at the time of the alleged offense (N.T. 9/18/85 at 22, 26); and he was only in appellant’s van one time (N.T. 9/18/85 at 25, 29). Prior counsel had notice of Edwin .C.’s potential importance as a witness, as the alleged victim had indicated during the preliminary hearing that Edwin C. had introduced him to appellant (N.T. 3/25/85 at 9), and a friend was in the van with him at the time of the alleged offense (N.T. 3/25/85 at 15). We find that appellant’s proffer presents a claim of arguable merit. Further, we find that no objectively reasonable basis designed to effectuate appellant’s interest appears on the record for failing to interview or present Edwin C. as a witness; and that Edwin C.’s proffered testimony could very likely have affected the outcome of the case as it directly contradicts the victim’s testimony. Consequently, we will remand for an evidentiary hearing on this issue. Commonwealth v. Spotts, supra. Although the Commonwealth argues that counsel declined to call Edwin C. as a witness as a matter of trial tactics, we are not willing to accept this supposition on the present meager record. The Commonwealth may, of course, pursue this theory or any other theory to rebut appellant’s proferred evidence of counsel’s apparent ineffectiveness during proceedings on remand. Appellant’s second and third contentions regard alleged deficiencies in trial counsel’s cross-examination of the victim and the police officers who testified for the prosecution. The gist of appellant’s argument is that trial counsel failed to make effective use of cross-examination to establish that the prosecution had the victim change his story-regarding the date of the incident (from March 1984 to the summer of 1984) when the Commonwealth belatedly realized that appellant did not own the vehicle in which the incident was alleged to have taken place until the summer of 1984. (Appellant’s Brief at 36-40). We find no merit to these claims of ineffectiveness. At trial, the victim testified that he was not certain what month the incident took place. (N.T. 3/25/85 at 24). Upon questioning by the trial court, the victim indicated that he thought it was summer. (N.T. 3/25/85 at 26). The prosecutor then asked whether school was still in session; the victim responded that school was finished. (N.T. 3/25/85 at 27) . Prior to cross-examination, appellant’s trial counsel moved to strike the direct testimony based upon its variance from the information filed against appellant which indicated the incident occurred in March of 1984. (N.T. 3/25/85 at 28) . The motion was denied. Although counsel cross-examined the victim regarding various other issues, counsel did not confront the victim with prior inconsistent statements made regarding the date of the incident. (N.T. 3/25/85 at 28-34). However, counsel was permitted to have the victim’s preliminary hearing testimony pertaining to the date of the incident read into the record without objection, as a prior inconsistent statement; the preliminary hearing testimony established that the victim had previously indicated the incident occurred in March of 1984. (N.T. 3/25/85 at 56-60). During direct examination at trial, Officer Dennis Guzy presented no testimony regarding the victim’s statements concerning the date of the incident. (N.T. 3/25/85 at 37-40). On cross-examination, Officer Guzy testified that his handwritten notes of the initial investigation indicated that the victim had stated that the incident occurred “maybe in June,” but that his partner had made a notation indicating that it might have occurred in March. (N.T. 3/25/85 at 41-42). On redirect, Officer Guzy testified that his brief summary in the typed police report indicated that the incident occurred in March; he explained that the earlier date was probably included as a result of his partner’s notation. (N.T. 3/25/85 at 43). Officer Guzy’s partner, Officer James McGinnis, testified on direct examination that the March 1984 date included in his note, the formal police report, and later documents represented “the earliest date it could have been,____” (N.T. 3/25/85 at 45). He explained that the victim indicated that he entered Northern Homes in March and that the incident occurred after the victim went to Northern Homes; therefore, despite the victim’s uncertainty as to when the incident occurred, the officers concluded that the incident had to have occurred after the beginning of March of 1984. (N.T. 3/25/85 at 45). Counsel did not cross-examine Officer McGinnis on this issue. Initially, we note that trial decisions, especially those pertaining to the nature and extent of cross-examination, are matters of style and tactics involving subtle stratagems which ordinarily are within the exclusive province of the trial counsel. See Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983); Commonwealth v. Metzger, 295 Pa.Super. 267, 441 A.2d 1225 (1981). So long as counsel’s tactical decisions may be objectively viewed as having a reasonable basis designed to effectuate the client’s interest, his stewardship cannot be deemed ineffective and the defendant cannot be said to have been denied a fair trial. See Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, supra. In the instant case, appellant argues that counsel was ineffective because he did not confront the victim with his prior inconsistent statement that the incident occurred in March, and did not demand an accounting for the inconsistency. (Appellant’s Brief at 34). The record reveals that counsel instead chose to impeach the victim, without offering the victim a chance to explain away the conflict, by having the entire prior inconsistent statement admitted into the record by stipulation. This choice of tactics was manifestly reasonable. We note that a similar allegation of ineffectiveness was rejected in Commonwealth v. Clemmons, supra, wherein our Supreme Court stated: ... trial counsel did use the [prior inconsistent] preliminary hearing [testimony] as a means of impeachment. This is a classic hindsight evaluation of the record; that [appellate counsel] would have perhaps impeached the witness in a different way or by a different style does not constitute ineffectiveness of counsel. 479 A.2d at 960. The same conclusion obtains instantly. Similarly, we find that trial counsel’s decision not to examine the police officers further regarding the discrepancies in the victim’s statements as to when the incident occurred was objectively reasonable. All of the facts necessary to the argument that the prosecution had the victim change his story as to when the incident occurred were on the record; counsel was already free to make that argument at closing. Appellant does not contend that trial counsel failed to reveal specified hidden facts; rather, appellant complains that counsel failed to properly confront the witnesses with known facts already of record. This allegation clearly regards a choice of style and tactics rather than an arguable claim of error by counsel. Indeed, counsel appears merely to have heeded the sage advice of the venerable trial advocate Rufus Choate who warned: Never cross-examine any more than is absolutely necessary. If you don’t break the witness, he breaks you; for he only repeats over in stronger language to the jury his story. Thus, you only give him a second chance to tell his story to them. And besides by some random question you may draw out something damaging to your own case. Quoted in Clark, Great Sayings by Great Lawyers, at 156 (1922). The record of this case clearly demonstrates the wisdom of Mr. Choate’s advice and the reasonableness of counsel’s election to forego further cross-examination of the police officers on this issue. Both officers had clearly diminished the importance of the inconsistencies with plausible expía nations. Clearly, further cross-examination would have risked erosion of counsel’s basis for argument on this issue by providing the officers with an opportunity to elaborate and expand upon the explanations given. Counsel’s decision to forego further confrontation with these witnesses can be objectively viewed as reasonable; hence, the ineffectiveness claims pertaining to cross-examination of the witnesses must fail. Buehl, supra; Maroney, supra. We also find no merit in appellant’s fourth contention that counsel was ineffective in failing to demand a bill of particulars or request a continuance. Succinctly, appellant has failed to specify how his case would have been improved by the actions. Presumably, the actions would have given counsel more time to prepare, but to prepare what? Because appellant has failed to establish the efficacy of the actions which he suggests counsel should have taken, we find no arguable merit in this claim. Pierce, supra; Buehl, supra. The issue of the victim’s confusion and uncertainty as to the date of the incident was effectively presented to the trial court (N.T. 9/18/85 at 24, 26, 28, 41, 43, 45, 55); appellant’s post-verdict allegation that additional notice and preparation might have resulted in more effective use of these facts is simply too vague and speculative to provide a basis for a finding of ineffectiveness. See Commonwealth v. Pettus, supra. Finally, we reject appellant’s contention that counsel was ineffective in failing to object to the inclusion in the presentence report submitted to the sentencing court of statements regarding prior incidents of sexual conduct with other male juveniles which did not result in arrests or convictions. First, the statement of the juvenile who introduced the victim to appellant, and appellant’s general admission of prior sexual conduct with some of the boys, were included in the presentence report at the behest of the prosecution only to rebut appellant’s prior statement to the presentence investigator that he never had sex with juveniles. Appellant clearly opened the door for inclusion of such information in the report by his blanket denial of such conduct. Accord Commonwealth v. Trignani, 334 Pa.Su per. 526, 541, 483 A.2d 862, 869 (1984). Second, and more importantly, we find that, so long as the sentencing court is aware that no arrest or conviction resulted, such information may properly be considered by a sentencing court even where appellant has not opened the door. “Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized” in determining the appropriate sentence. Commonwealth v. Lupatsky, 341 Pa.Super. 338, 341-42, 491 A.2d 845, 847 (1985); see also Commonwealth v. Darden, 366 Pa.Super. 597, 606, 531 A.2d 1144, 1149 (1987); Commonwealth v. Scheinert, 359 Pa.Super. 423, 431, 519 A.2d 422, 427 (1986) (Kelly, J., concurring; Cavanaugh, J., joins); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). We note that we review here only the appropriateness of considering such information and not the weight to be accorded to it. CONCLUSION Based upon the foregoing, the case is remanded to the trial court for an evidentiary hearing upon the issue of whether counsel was ineffective in failing to interview and/or call Edwin C. as a witness. Jurisdiction of this Court is relinquished. The test must be objective rather than subjective. If the Court determines that a reasonable basis designed to effectuate the appellant’s interests exists for a particular act or omission, then, regardless of counsel’s purported subjective motivations for the act, appellant can not be said to have been denied a fair trial. The reasonableness of the act or omission precludes a finding of ineffectiveness. Maroney, supra.

Opinion by Mr. Justice Kephart, This appeal involves the apportionment, between the life tenant and the remaindermen in a trust estate, of the proceeds received from the sale of stock and stock rights. Because of appellants’ confusion with respect to our rules governing the questions involved, it will be necessary to briefly summarize what has been heretofore decided. The value of a trust estate, where its income is paid to life tenants with remainder over, is determined as of the time the testator dies and is called intact value. It is so named because that value is to he kept intact for remaindermen in the various subsequent distributions of income that might impair it. It was early stated that intact value includes par value of stock when par has been paid, plus any accumulations at the date of death, but, prima facie, intact value is book value. Intact value may be increased by stock purchases, contributed surplus or any other capital increase not attributable to earnings, and it is subject to capital losses. The burden of lowering or raising an intact value thus established lies on the party asserting it. The income from the estate, unless otherwise determined by will, is distributed as follows: [a] Ordinary cash or scrip dividends coming to it belong to life tenants regardless of how soon after testator’s death they are declared by the company whose stock is held in the corpus. They are not, in the absence of unusual circumstances, apportionable between life tenants and remaindermen. [b] Extraordinary dividends, commonly called stock dividends, are distributed and apportioned as follows. The presumption is that an extraordinary stock dividend is from earnings and belongs to the life tenant. Earnings include not only the profits in the regular business but also those from miscellaneous sources. In the distribution of a stock dividend the “intact value” must be preserved. When it appears that the distribution of a stock dividend to the life tenant will impair the intact value of the trust estate by reducing it, then there must be an apportionment between the life tenant and the remainderman, so as to preserve the intact value of the corpus of the estate, plus any increase in that value through share purchases, or from contrib uted surplus or any proper capital increase, and less any decrease for capital losses. Where an extraordinary stock dividend is made from increased capital assets not chargeable to earnings, such as contributed surplus and the like, the stock dividend belongs to the corpus. The burden of proving that the intact value of a trust estate is or will be diminished, and that an extraordinary stock dividend or part of it belongs to the corpus, is on the trustees or remainderman. [c] Where stock that produces income owned by the estate is sold for a price greater than the intact value [as defined and considered above] and such greater price is due to an accumulation of income, the proceeds are apportionable; that is, so much of the proceeds as necessary to preserve the intact value [as defined] goes to the trustees for the corpus, and only so much of the balance that represents income goes to the life tenant. But where the greater value is due to the stock’s earning power, good will, or its intrinsic, speculative, or enhanced market value, all the proceeds are part of the corpus and belong to the remainderman; the increase is capital gain. The presumption is that the proceeds from the sale of stock belong to the corpus of the trust and the burden of proving that they do not rests on the person asserting a claim to them. [d] Proceeds arising from the sale of stock rights should be distributed in the same manner and have the same presumptions following as in the sale of stock. They are a species of stock. This is the main question here involved. We have held that proceeds from the sale of stock rights, “......must be apportioned in the same manner as an extraordinary stock dividend would be; that is, there should be allotted to the corpus of the trust sufficient thereof to maintain unimpaired the intact value of the stock held by it, and the life tenant should receive the balance, because it represents corporate earnings which accumulated after he became entitled to all dividends ......” But in the case cited we considered the sale of stock rights in reference to intact value and accumulated earnings only, but decided nothing as to stock rights sold at a profit due to the stock’s earning power, good will, or its intrinsic or speculative value in the market. The benefits resulting from the sale of stock rights under the latter circumstances should be apportioned in the same manner as in the sale of stock. In all cases, in determining the share which the life tenant is to receive based on apportionment, his share is limited to such an amount as is attributable to income or can be fairly included therein. It does not include increases of capital assets not due to earnings, and in the sale of stock rights earnings do not include such items as speculative value, enhanced market value, or the stock’s eaxrning power. When the trustees sell stock rights, the presumption is that the proceeds derived therefrom represent capital assets of the estate, and the bux’den of showing the contrary rests on those who assert a claim to the fund or part of it. In the present case, the burden of proof rested on the life tenants. They failed to meet this burden and the court below properly decreed the proceeds, from the sale of stock rights, to the corpus of the estate, making, however, an allowance of such of the proceeds as represent income to the life tenants. The remaindermen took an appeal, entered No. 220, January Term, 1932, but stated at the bar of the court that if the appeals of the life tenants were dismissed, they would be satisfied to have their appeal dismissed. We accordingly make the order. The decrees of the court below in Nos. 215, 218, 220, January Term, 1932, are affirmed; cost to be paid by appellee. Earp’s App., 28 Pa. 368. Baird’s Est., 299 Pa. 39, 42. Dickinson’s Est., 285 Pa. 449, 453; Packer’s Est. [No. 1], 291 Pa. 194, 197; Jones v. Integrity Trust Co., 292 Pa. 149. Dickinson’s Est., supra; Packer’s Est., supra. Baird’s Est., supra. McKeown’s Est., 263 Pa. 78, 85; Nirdlinger’s Est., 290 Pa. 457, 462. Earp’s App., supra; Graham’s Est., 296 Pa. 436; Chauncey’s Est., 303 Pa. 441, 446; McKeown’s Est., supra. Chauncey’s Est., supra. Earp’s App., supra; Ohauncey’s Est., supra; McKeown’s Est., supra; Graham’s Est., supra; Waterman’s Est., 279 Pa. 491. Flaccus’s Est., 283 Pa. 185; Nirdlinger’s Est., supra. Dickinson’s Est., supra; Chauncey’s Est., supra. Dickinson’s Est., supra. Ohauncey’s Est., supra. Earp’s App., supra; Graham’s Est., supra; Chauncey’s Est., supra; McKeown’s Est., supra. McKeown’s Est., supra; Nirdlinger’s Est., supra. See Nirdlinger’s Est., supra, and authorities cited at page 479. McKeown’s Est., supra; Nirdlinger’s Est., supra. Jones v. Integrity Trust Co., supra. Supra, note 18. Chauncey’s Est., supra.

OPINION NIX, Justice. Appellant, Carol Musi, was tried before a jury for the shooting death of her husband, a Philadelphia police officer, and was found guilty of murder of the third degree. In this direct appeal from the judgment of sentence imposed upon the verdict, appellant cites three alleged instances of trial counsel’s ineffectiveness and one assertion of trial error. After consideration of these claims we are satisfied that they are without merit and affirm the judgment of sentence. On July 28, 1976, appellant was serving at the bar where she was employed. At approximately 3:00 p. m., she began drinking and continued until 6:00 p. ,m. At 6:15 p. m., the deceased arrived and joined appellant and they drank together until 8:00 p. m. After leaving appellant’s place of employment, the couple proceeded to another bar and stayed until 11:00 p. m. Upon leaving for home, an argument erupted between the two which required the intervention of the police. When they arrived home, the deceased removed some of his clothing and personal effects and entered a pickup truck which was parked nearby. Later, appellant emerged from the house and proceeded to the truck in which her husband was seated, and the argument resumed. Appellant then left the truck and re-entered the house, only to return within a short period of time carrying a rifle. She approached the truck, raised the rifle to her shoulder and shot her husband through the open window of the truck. There was also testimony that appellant had threatened the deceased on the night in question and on previous occasions. Appellant testified that she believed the gun was not loaded, and that she was merely attempting to frighten her husband into returning to their house when she placed the rifle through the open truck window. She maintained that the rifle discharged only because her husband grabbed it while she was holding it. It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, Washington v. Maroney, supra, but whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. O’Neal Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979); Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369, 1371-72 (1979); Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979); Commonwealth v. Chumley, 482 Pa. 625, 394 A.2d 497 (1978); Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). If a reasonable basis for counsel’s trial strategy decision exists, that decision is imputed to the client. Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973). Moreover, the fact that an ineffective assistance of counsel claim is entertained in a direct appeal, rather than in a collateral attack upon a judgment of sentence, does not relieve the party asserting the claim of providing a record which will support the contention. Appellant argues that trial counsel was ineffective because of his failure to request that the jury be instructed as to homicide by misadventure. If there was evidence in the record that would support a jury finding of an accidental excusable killing, the defense would certainly be entitled to such a charge, Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970), and the failure to make such a request would cast serious question upon the quality of representation given by counsel. The difficulty with appellant’s argument in this case is that accepting the version of the facts most favorable to her position they would not constitute a homicide of misadventure. In Commonwealth v. Flax, 331 Pa. 145, 156-157, 200 A. 632, 637-638 (1938), we defined an accidental killing which would relieve the actor of the criminal responsibility for the death as being: the accidental killing of another, where the slayer is doing a lawful act, unaccompanied by any criminally careless or reckless conduct. “Three elements enter into the defense of excusable homicide by misadventure: (1) The act resulting in death must be a lawful one; (2) It must be done with reasonable care and due regard for the lives and persons of others; and (3) The killing must be accidental and not intentional, or without unlawful intent, or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve in guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or driving an automobile at an unlawful rate of speed”, (citations omitted). The defense’s version at trial was that appellant raised the rifle to her shoulder and pointed it at the decedent in order to “scare the hell out of him”. Claiming that she thought the rifle was unloaded, she aimed it at the decedent and said, “Now get the f___in the house before you wreck our lives” and that the decedent struck the weapon causing it to discharge. Thus appellant concedes that the killing occurred while she was committing the act of pointing the rifle at the victim. The law of this jurisdiction is clear that it is unlawful to point a firearm at another, whether loaded or unloaded. Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). Commonwealth v. Chruscial, 447 Pa. 17, 288 A.2d 521 (1972) (pointing a firearm at another human being, even to scare, is not a lawful act in Pennsylvania). Appellant stresses the fact that she was under the impression that the weapon was unloaded. While this fact, if believed, would support the premise that the killing was unintentional, that alone does not satisfy a finding that it was an excusable homicide. As noted in Commonwealth v. Flax, supra, “even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act . . . ” Id. 331 Pa. at 157, 200 A.2d at 638. Therefore, since the testimony did not warrant a charge as to homicide by misadventure, defense counsel’s failure to request such a charge is obviously not a basis for finding ineffective assistance of counsel. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Where a claim is not meritorious it is not ineffective assistance not to pursue it. Appellant also challenges trial counsel’s failure to seek a charge to the jury on involuntary manslaughter. A review of the testimony offered in the case would suggest there did exist rational basis for a verdict of involuntary manslaughter. Thus either under the theory of Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) or Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977), a trial judge would have been required to give the requested charge in this case, if he had been requested to do so. We therefore must look to see if there was any trial strategy, designed to effectuate the best interest of the client, that might move a trial counsel in the instant situation not to make such a request. We have already noted, accepting the version of the facts most favorable to the defense, the appellant was at least guilty of reckless or grossly negligent conduct which was the legal cause of the death. In the charge given by the court, the jury’s alternatives were confined to either finding a malicious killing (i. e., murder), an intentional killing resulting from provocation and passion or an acquittal. Thus if the jury had accepted the version of the defense, it could properly have returned a verdict of not guilty. If, however, trial counsel had sought and obtained a charge as to involuntary manslaughter, the option of an outright ac quittal on this record would have been eliminated. In view of the presence of this legitimate reason for electing not to request a charge that would virtually end all hope of an acquittal, we cannot conclude as urged by appellant that counsel’s decision was without a reasonable basis to effectuate his client’s best interests. Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). The final claim of ineffectiveness of trial counsel is based upon his failure to raise in post-verdict motions the legality of the search of appellant’s premises and the subsequent seizure of a .22 calibre rifle. This issue must be considered in two steps, whether there was probable cause for the issuance of the warrant and then it must be determined whether the execution of the search warrant was proper. Addressing first the adequacy of the affidavit supporting the warrant, appellant argues that the search was premised upon “double hearsay” and thus invalid. The affidavit set forth that an eyewitness to the shooting told one of the investigating detectives at the scene that appellant re-entered the house with the rifle. That officer, rather than leaving the scene, called this information to a fellow officer who completed the paper work and secured the warrant. Appellant argues that we condemned this type of double hearsay in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972) and should hold that the rifle obtained pursuant to a search authorized in this manner must be suppressed. It is apparent that appellant has misconstrued the language of our opinion in Garvin. In Garvin, we stated: The pertinent testimony in the instant case revealed that Officer Covotta of the Philadelphia Police Department received a telephone call at approximately 2:40 P.M. on September 4, 1969. The call was from an informant who was known to the officer and who had supplied him with information during the past five years leading to six arrests and six convictions. However, with regard to this particular call, the record is contradictory and inadequate as to what portion of the information had been obtained by the informant’s personal observation, if any, and what portion had been received by the informant from a third person who sought anonymity to avoid retaliation. The requirement of a determination of the trustworthiness of the source of the information cannot be met solely because it is channelled through an informant known to be reliable. While it may properly be assumed that the informant passed upon the reliability of the third person supplying the information to him, the law makes it most clear that it is not his judgment to make. As the Supreme Court in Aguilar, supra, did not permit the officers to make the determination for the issuing authority we cannot permit the officer in a warrantless arrest to delegate his responsibility to the informant. To accept without question the messages of alleged eyewitnesses relayed through informants would be to totally disregard the Supreme Court’s mandates. From the information received in the phone conversation, the officer was only aware that an unknown third person, who allegedly witnessed some portion of the robbery, identified one of the two participants as a man who was then walking on a particular street two blocks from the district at the time of the call. When the officer arrived at the specified location there was nothing about the behavior of the appellant which would have furnished a basis for taking him into custody, and even though the record indicated the officer had been furnished with an identification by the victims, there is no testimony to suggest that he considered this information when he approached the appellant. On this record we find that the arrest of the appellant was illegal. Id., 448 Pa. at 263-64, 293 A.2d at 36 (italics added). Appellant extracts only the italicized portion of the quote and ignores the context in which these comments were made. In Garvin, we were confronted with information based upon double hearsay when it reached police officials. We expressly pointed to the fact that the evil in such a case was that there was no basis for the police to assess the reliability of the initial source of the information. Here a police officer received the information directly from an eyewitness to the event. Therefore, there is no question as to how the information was obtained by the witness nor can there be any serious challenge here to that witness’s reliability. Thus, to reach appellant’s position we would be required to find that police officials could not rely upon information relayed to them by other members of the department during the performance of their duties. Such a rule would not only unduly hamper police administration but would serve no useful purpose in assuring the reliability of the information acted upon. The concept of evaluating the police operation as a collective function as opposed to an individual one is not new. For instance, we have held that it is unnecessary for an arresting officer to have knowledge of the information which supported the probable cause of a warrantless arrest, provided that the officer issuing the order to arrest had sufficient information to act. Commonwealth v. Kenney, 449 Pa. 562, 566-567, 297 A.2d 794, 796 (1972). See also Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Here, the officer supplying the information for the affidavit possessed the requisite information to satisfy the probable cause requirements. The fact that he delegated the responsibility of placing this information in affidavit form and the securing of the warrant from the issuing authority is of no consequence, where the affidavit accurately reflects the information possessed by the officer and that information satisfies the probable cause requirement. Having concluded that the affidavit did set forth probable cause for the search and did provide sufficient information upon which an issuing authority could find the reliability of the source of that information, it cannot be successfully maintained that counsel was ineffective for failing to pursue the issue. A finding of ineffectiveness cannot be premised upon counsells failure to pursue and preserve an obviously meritless issue. Commonwealth v. Martin, 479 Pa. 63, 68, 387 A.2d 835 (1979); Commonwealth v. Smith, 478 Pa. 76, 80, 385 A.2d 1320 (1979); Commonwealth v. Hubbard, supra, and cases cited therein. The second aspect of this argument, relates to the manner in which the warrant was executed. A copy of the warrant and affidavit was not served upon either appellant, the alleged possessor of the item seized, or the persons upon the premises at the time of the search. The suppression court initially found that Pa.R.Crim.P. 2008(a) had been violated and entered an order suppressing the introduction of the rifle at trial. After a petition by the Commonwealth to reconsider the suppression court reversed its original order and held that although there had been a rule 2008(a) violation, this fact did not require that the fruits of the search to .be suppressed. Thus, framed in an ineffective assistance claim perspective the issue presented is whether counsel should have pursued the question on post-verdict motions. Normally, a resolution of the issue so framed would be dependent upon a determination as to whether the question constituted an arguable issue and whether there existed strategy that would justify abandoning it, rather than a determination as to the ultimate validity of the proposition. Commonwealth v. Hubbard, supra. However, since the question presented is of importance and has yet to be considered by this Court, see Commonwealth v. Walls, 255 Pa.Super. 1, 386 A.2d 105 (1978), and the record before us is one which is sufficient for us to make a decision upon the merits of the contention, we are satisfied that it is appropriate that we do so. If we were to limit the inquiry as to whether counsel was ineffective in abandoning this argument and determined that he was, the remedy in the first instance would not be the award of a new trial but rather the allowance of an opportunity for the question to be decided upon its merits. Restated, if appellant prevailed in her ineffective assistance claim, that fact would merely provide her with a basis for avoiding a waiver of the issue; the ultimate relief she seeks — a retrial and a suppression of the rifle — would be dependent upon a final determination on the merits of the claim. We are satisfied that in such a posture it is jurisprudentially sound to reach the merits of the question as to whether the rule 2008(a) violation required the suppression of the fruits of the search in this case. A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (decided June 5, 1979); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Experience does not suggest there has been such a widespread and flagrant abuse of rule 2008(a) that would require the fashioning of a per se exclusionary rule for its violation. See e. g. Mapp v. Ohio, supra. Therefore, the imposition of a sanction requiring the exclusion of evidence that results from a search where there has not been compliance with the rule must depend upon the relationship of the violation to the reliability of the evidence seized. Here, there was probable cause for the entry and search and there is no dispute that the rifle was in fact found on the premises described in the warrant and seized pursuant to that search. Thus, appellant’s rights were not prejudiced by the officer’s failure to fully comply with the mandates of the rule. Federal cases interpreting a comparable rule of criminal procedure, see Rule 41(d) of the Federal Rules of Criminal Procedure, have concluded that although important, the procedures required for execution and return of the warrant are ministerial and that irregularities should not void an otherwise valid search absent a showing of prejudice. See e. g. U. S. v. Hall, 505 F.2d 961 (3d Cir. 1974); In Re Ellsberg, 446 F.2d 954 (1st Cir. 1971); U. S. v. McKenzie, 446 F.2d 949 (6th Cir. 1971); U. S. v. Klapholz, 230 F.2d 494 (2d Cir. 1956) cert. denied 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454. We accept the wisdom of this approach and hold that where, as here, appellant has failed to demonstrate that she was prejudiced from the violation of this rule a request to suppress the fruits of the search is not justified. See also State v. Stachler, 570 P.2d 1323 (Hawaii 1977); see generally State v. Cymerman, 135 N.J.Super. 591, 343 A.2d 825 (1975). The last issue, which we will treat as properly preserved for review, is the trial court’s failure in admitting testimony regarding the violent character of the decedent. This argument is based upon our decisions in Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1979) and Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975). The theory of the Scott and Stewart cases was that where an accused is attempting to negate an inference of malice by asserting a motivation of fear or panic, this type of evidence is relevant to establish the basis for the fear or panic. In this case, by her version of the occurrence, apellant was not in fear of an assault by the deceased, but rather emerged from the safety of her home, with the rifle, for the purpose of scaring the deceased and forcing him to return to their home. Even at the moment of the firing appellant does not charge that she fired in fear or panic but rather asserted that it was accidental. It is therefore apparent that Scott-Stewart rationale was inapplicable and the trial court was correct in ruling that the proffered testimony was irrelevant. Judgment of sentence affirmed. O’BRIEN, J., did not participate in the consideration or decision of this case. LARSEN, J., agrees with the opinion and joins therein except that he would find that the final issue was also waived. ROBERTS, J., filed a dissenting opinion. MANDERINO, J., filed a dissenting opinion. . This is the second trial of this cause, the first trial resulted in a mistrial because of the inability of the jury to reach a verdict. . Post-verdict motions were filed and denied, and appellant was sentenced to two to ten years imprisonment. On December 27, 1977, we granted trial counsel’s petition to withdraw and remanded the matter to the trial court for a determination of whether appellant was entitled to appointed counsel. On July 7, 1978, the trial court granted appellant’s petition to proceed in forma pauperis and for appointment of counsel. . A claim for post conviction relief must be established by the party asserting the ground. The burden of establishing the ground upon which post conviction relief is requested rests on the person seeking that relief. See 19 P.S. § 1180-1 et seq.; Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth v. London, 461 Pa. 673, 337 A.2d 822 (1975); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970). . Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974). . See 18 Pa.C.S.A. § 2701(a)(3); 18 Pa.C.S.A. § 1705. Appellant’s reliance upon Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970) is clearly misplaced. In that case the defense testimony, if believed, would have provided a lawful purpose for the defendant’s contact with the weapon causing the death. . Before inquiring into the basis for counsel’s failure to raise or pursue a certain issue or claim at trial, we must determine if the issues or claim is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Here such an inquiry is required since appellant would have been entitled to such a charge, if requested. . While we recognize the jury has the power to return a verdict of acquittal in every case, Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977); Commonwealth v. Goins, 457 Pa. 594, 321 A.2d 913 (1974); Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972); Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972), counsel cannot be faulted for providing a legal basis for requiring a verdict. . It has not been questioned that a state-created substantive right of a charge on involuntary manslaughter is a matter for trial strategy. Commonwealth v. McGrogan, 449 Pa. 584, 589, 297 A.2d 456 (1972). . The affidavit contained the name, age, race, sex and address of the witness, who was the next door neighbor of the appellant and her husband. . The defense witness testified that one of appellant’s minor sons present at the time of the search demanded that a search warrant be produced and that the request was ignored. The officer conducting the search testified he believed, but was not certain, that he served a copy upon the son, there being no adults present in the home at the time. It was conceded that although appellant was in custody, and therefore available, she was not served with the warrant and affidavit. . Pa.R.Crim.P. 2008(a) provides: (a) A law enforcement officer, upon taking property pursuant to a search warrant, shall leave with the person from whom or from whose premises the property was taken a copy of the warrant and affidavit(s) in support thereof, and a receipt for the property seized. A copy of the warrant and affidavit(s) must be left whether or not any property is seized. . A third rationale underpinning the exclusionary rule concerns preserving the integrity of the judicial system. Mapp v. Ohio, 367 U.S. 643, 660, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), Dunaway v. New York, 442 U.S. 200, 217-218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). This concern is appropriate where 'the police practice, although not widespread, is still particularly reprehensible. The activities of the police officers in the instant case do not fall within that concern. . Although appellant failed to raise the issue in her post-verdict motions, in violation of Pa.R.Crim.P. 1123(a), see Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) the question was apparently alluded to in the appellant’s brief (which is not a part of the record) and referred to in the trial court’s opinion. See Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). But see, Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Opinion by Mr. Justice Simpson, This appeal is from a judgment entered upon a petition filed under the Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840. All possible interests were represented at the argument below and here, and they expressly declared they did not question the constitutionality of the statute; hence, for the reasons given in our opinion in Aaron v. Woodcock, 283 Pa. 33, we will not ourselves do so. We are at a loss to understand why there was supposed to be any necessity for this proceeding. The only question raised is: Are the children or grandchildren of testator entitled to the corpus of his residuary estate in remainder, after the death of his widow? The petition, which was presented by the surviving executor, states that he had filed his account, which had been confirmed and showed a balance for distribution. If that proceeding had gone forward in due course, the point above referred to would have been decided, at least as expeditiously as it can be in this proceeding, by an interpretation of the same clauses of the will as we are now asked to construe. That was the normal course to pursue, and this is an unusual one, provided for the purpose of having issues speedily determined, which otherwise would be delayed, to the possible injury of those interested, if they were compelled to await the ordinary course of judicial proceedings. No other substantial reason existed for the passage of the statute, and hence where, as here, there was no necessity for resorting to it, it should not have been employed. As this is the first time such a status has appeared, and the only result of reversing the judgment below and quashing the proceedings, as we might well do, would be a second appeal to this court, after a decree of distribution on the executor’s account, we shall decide the case on its merits. We do not propose, however, to allow the statute to be used hereafter, in cases clearly aside from its obvious purpose. This is a case of “the jolly testator who makes his own will,” with the expected litigation resulting. After the usual clauses (though somewhat unusually expressed), regarding the payment of his debts and funeral expenses, and providing for the marking of his grave, testator made certain bequests, including $3,000 to each of his three sons, and then directed the residue of his estate to be held in trust, upon the following terms and conditions : “8th. I direct my executors or trustees to pay to my wife one-third of the income from that part of my estate which I have placed in trust, so long as she remains my widow, the remaining two-thirds to be divided between my three sons equally. At the death of my wife or remarriage my three sons shall receive this income in equal shares. I further direct that these payments be made each six months commencing one year after my death and the income for the first year after my death shall remain as part of my estate.” “10th. Should any of my sons die without issue, then that part of my estate which I have placed in trust shall be divided equally among the children of my sons living at the time of the death of my wife. (I mean to say that this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally.) ” Though all the sons were still living when the widow died, the court below was of opinion, under the foregoing parenthetical clause, that the grandchildren were entitled to the entire residuary estate, and hence so ad judged; this appeal by the three sons followed. In our opinion the judgment must be reversed. The 8th paragraph throws but little light on the intention of testator, save, perhaps, as suggested by appellants, that, considering it from one viewpoint, the children would be entitled to the principal, because of the absolute gift of all the income to them, for an indefinite period, without any gift over of the principal. The rule thus relied on is well settled, but we do not think it necessary to invoke it here. The first sentence of the 10th paragraph says: “Should any of my sons die without issue, then that part of my estate which I have placed in trust shall be divided equally among the children of my sons living at the time of the death of my wife.” It will be noticed that this does not give to the grandchildren the whole of the trust estate, “should any of my sons die without issue,” but only “that part of my estate,” evidently meaning “that part” which the son so dying would otherwise have taken. In other words, it simply provided that if any of the “sons die without issue,” during the lifetime of the wife, then “that part of my estate” which, but for that fact, would have gone to him, shall not go to the other sons of testator, but to the grandchildren. None of the sons died, however, and this substitutionary gift did not take effect. The explanatory parenthetical sentence which closes the 10th paragraph, does not enlarge the gift to the grandchildren. It says “(I mean to say that this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally).” It will be noticed that here also testator does not give the whole of his estate to the grandchildren, as could easily have been done had it been intended. What he says is that “this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally,” that is, in the division of “that part of my estate......which shall be divided” in case “any of my sons die without issue.” “This division,” necessarily means the division already referred to, and, hence, as none of the sons did die before the time specified, there was no available gift to the grandchildren under either sentence of this paragraph. What then is to become of this residue? Two suggestions were made: (1) That an intestacy resulted, in which event appellants would take; and, (2) As already mentioned, that a gift of the income, for an indefinite time, without any bequest of the corpus in remainder, carries with it a gift of the principal. We think we are not driven to adopt either view. In Beilstein v. Beilstein, 194 Pa. 152, testator gave to his daughter the income of a certain property for life, “but should she die without leaving a family” then it was to go to his own brothers and sisters. There was no express gift of the property if the daughter should die leaving a family, the event which in fact occurred. We said, page 154: “The devise over in case Gertie should die ‘without leaving a family’ is an implied devise to her family if she should leave one. It is only if she does not, that the devise over is to take effect, and there is a necessary implication that, in the other unexpressed contingency of her leaving a family, the estate is to go to them. This is practically assumed without question in the numerous cases on the subject, which are carefully reviewed in Seybert v. Hibbert, 5 Pa. Superior Ct. 537.” The conclusion stated was approved, under varying facts, in Reisher’s Est., 261 Pa. 223, 229; Bechtel v. Fetter, 267 Pa. 173, 179, and Lippincott’s Est., 276 Pa. 283. In the last-named case, the gift of the income was to the wife and nephew “share and share alike. Should either die before the other, without descendants alive at his or her decease, this share shall go to the one surviving.” The nephew died before the wife, leaving a daughter, and the contest arose over the one-half of the income accruing after his death and before that of the widow. In reciting the three contentions made, we said (page 286): “At the audit below there were three claimants for this fund. The widow alleged there was no express gift of it, in the event of the nephew dying during her lifetime, leaving descendants, and hence she was entitled to a portion of it, as upon an intestacy. The administrator of the estate of the nephew claimed that the nephew was given an estate during the lifetime of the widow, and as he died during that lifetime, leaving a descendant him surviving (who could not take because the will did not so provide), under the gift per autre vie this one-half share should be awarded to him, as the nephew’s personal representative. The daughter of the nephew claimed that under the will there was an implied gift to the nephew’s descendants, should he die during the lifetime of the widow leaving descendants, and hence this fund should be awarded to her as the only one in that class. This latter was the conclusion reached by the court below; and, from the decree made in accordance with it, the other two claimants have severally taken these appeals.” We affirmed, saying (page 287): “Counsel for the widow, without directly saying so, asks us to overrule Beilstein v. Beilstein, 194 Pa. 152, and the cases in its train, largely because the English courts still follow their earlier antagonistic conclusions. We decline to do this; on the contrary, we reaffirm the conclusion reached in that case, both on the ground of stare decisis and because it is sound in principle. No one doubts but that every layman would understand a will in precisely the way there decided, and since this is a layman’s will, written by a layman, we ought so to construe it: Shaffer’s Est., 262 Pa. 15, 19......With Beilstein v. Beilstein, supra, as our guide, it is clear, if the first paragraph of the residuary clause is alone considered, appellee would be entitled to take, for there would be an implied gift to her, because her father, the nephew named in the will, died leaving her as his only descendant.” Under the above authorities, if one of decedent’s sons had died during the lifetime of the widow, his descend ants would have taken their father’s share, though it is not so stated in, but can only be implied from, the will. There must have been a son’s share, however, or, as this will expresses it, there must have been “that part of my estate,” to pass under the gift over, actually made, before there could be an implication of a gift of “that part” to the son’s surviving children. The implication therefore is as applicable in the contingency which has arisen, as it would have been in the event of death leaving issue. Hence it should be applied here also, especially as it accords with the unbending rule of interpretation, that the heir shall not be disinherited save as the result of express words or necessary implication, neither of which, as we have already shown, appears in this will. The controlling principle may, therefore, be stated as follows: When the income of an estate is given to one person, for a period which must certainly end, and there is no gift of the estate in remainder, save in the event of the first taker dying without issue before the expiration of the particular estate, and in fact he survives that time, or if the particular estate is for his own life and he dies leaving issue him surviving, then a gift of the estate in remainder will be implied in favor of him or his issue, as the case may be. In the instant case, it may be added that no reason occurs, and none has been suggested, why the children, who were given a share of the income during their moth- ■ er’s life, should be cut off absolutely, immediately on her death. We can readily appreciate why testator wished all of his estate to remain in the direct line of descent, if a son died without issue during the lifetime of the widow; but we cannot understand why testator should desire to absolutely cut off his own children on the death of the widow, or why he should have referred to the event of their dying without issue as the factor in determining that the grandchildren should take “that part of my estate,” unless he meant that, if such a contingency did not happen (as here it did not), the children should take the property. In the opinion below it is said: “In the 12th clause he [testator] inferentially states that he has made bequests to his sons both directly and indirectly, the $3,000 being the direct bequests to which he refers. The 14th clause contains a veiled apology for some of the provisions contained in the will, indicating that it contained some provisions out of the ordinary. The only bequests in the will that bear the interpretation of indirect bequests are the bequests to his grandchildren, treating them as being indirectly bequeathed to their parents. The only unusual provisions contained in the will that would justify the apology for the 14th clause would be the bequests to the grandchildren instead of his children. “Both the 12th and 14th clauses therefore point to the conclusion that testator intended that the corpus of the trust should, in any event or all events, go to his grandchildren equally.” The 12th paragraph referred to is as follows: “I hope that the direct bequests which I have made to my sons will be invested in homes for themselves and families.” How there could be thus something “indirectly bequeathed” to petitioner, who was one of the sons' and himself had no children, is not explained, obviously because it cannot be; but this fact necessarily leads to the conclusion that the inference suggested by the court below is not a reasonable one. Admittedly the only “direct” gift to the sons was the bequest of $3,000 to each of them, for it was to be paid “immediately,” which is one of the primary meanings of the word; hence the inference of an indirect gift, elsewhere appearing in the will, if any such inference can be drawn, would be the gift of the corpus, after the death of the widow, whom presumably testator desired should live as long as possible, and therefore requested his sons not to wait for this postponed gift, ere they purchased “homes for themselves and their families.” The 14th paragraph says: “With charity for all, and malice to none, wishing to do the right, knowing that finite mind is liable to err, I hope this act carefully considered may be acceptable to those I loved, considered just by my fellowmen, and stand approved by the Judge of the Universe, in the great day of accounts.” How this could be a “veiled apology” to anybody is also left unstated. In the first paragraph, testator directed that “the following inscription shall be placed on this monument [in his burial lot], on the side facing my grave: U shall be satisfied when I awake in thy likeness’ ”; Psalm 17, v. 15. These two extracts show that testator was probably a deeply religious man, and wished therefore to convey the idea that, in what he doubtless considered the last solemn act of his life, he had done what he hoped would be recognized by his family, his neighbors and the “Judge of the Universe” alike, as the best that he could do. Beyond this no other inference can reasonably be drawn; certainly none that would change the course of descent as expressed in or implied from the will. The declaratory judgment of the court below is reversed, and it is now adjudged that each of testator’s children became entitled to a one-third interest in his residuary estate on the death of their mother; the costs of this appeal are to be paid by the estate of testator. Mr. Justice Kephart, dissented.

OPINION BY Senior Judge KELLEY. Edward Benkoski, Sr. and Jeffrey P. Stewart appeal from an order of the Court of Common Pleas of Luzerne County (trial court) which granted the petitions to set aside the nomination papers of Benkoski and Stewart as independent candidates for the office of supervisor for Bear Creek Township for the November 6, 2007 general election. We reverse. On March 5, 2007 and March 6, 2007, respectively, Benkoski and Stewart filed with the Luzerne County Board of Elections democratic nomination petitions in the May 2007 primary election for the office of supervisor for Bear Creek Township. Benkoski and Stewart each filed two nomination petitions — one petition for a four-year term and one petition for a six-year term. Thereafter, petitions to set aside the nomination petitions of Benkoski and Stewart were filed with the trial court on the basis that both Benkoski and Stewart violated the Public Official and Employee Ethics Act by failing to file their Statement of Financial Interests with Bear Creek Township within the timeframe required by law. After oral arguments, reviewing briefs and taking testimony, the trial court by order dated March 21, 2007, granted the petitions to set aside the nomination petitions. Benkoski and Stewart then filed nomination papers with the Luzerne County Board of Elections as independent candidates for both a four-year and six-year term for the office of supervisor for Bear Creek Township for the November 6, 2007 general election. On August 8, 2007, Gary M. Zingaretti, Joseph J. Masi, and Ruth Ann Koval, filed a petition to set aside Benkoski’s and Stewart’s nomination papers on the basis that Benkoski and Stewart were precluded by Section 976(e) of the Election Code and this Court’s decision in Lachina v. Berks County Board of Elections, 887 A.2d 326 (Pa.Cmwlth.), aff'd, 584 Pa. 493, 884 A.2d 867 (2005), from filing nomination papers for the general election. The trial court granted the petition to set aside Benkoski’s and Stewart’s nomination papers by order of August 15, 2007. These consolidated appeals followed. The sole issue raised in these appeals is whether a person whose nomination petition for a primary election has been judicially set aside is precluded from filing nomination papers as a candidate of a political body for the ensuing general election. In its opinion in support of its order, the trial court relied on this Court’s decision in Lachina, wherein the Court, after reviewing prior precedent, concluded that, pursuant to Section 976 of the Election Code, a candidate who has not voluntarily withdrawn from the primary process but instead was stricken from the ballot due to defects in her nomination petitions, was precluded from subsequently filing nomination papers as the candidate of a political body. Lachina, 887 A.2d at 329. The Lachina Court reviewed three cases in reaching its decision. First, the Lachina Court reviewed this Court’s single judge decision in Matter of Gaines, 720 A.2d 159 (Pa.Cmwlth.), aff'd, 553 Pa. 139, 718 A.2d 296 (1998), which held based on Section 951 of the Election Code, 25 P.S. § 2911, that a candidate, whose nomination petition was set aside due to insufficient signatures, was not precluded from fifing nomination papers to appear on the ballot in the general election as a candidate for an independent party because the candidate’s name never appeared on the ballot and was not considered by the voters at the primary elections. The Lachina Court determined that because the decision in Gaines was a Section 951 case and involved what “presented” as a candidate meant, it was inapplicable. Second, the Lachina Court reviewed our Supreme Court’s decision in Packrall. In Packrall, which was decided under Section 976 of the Election Code, the Supreme Court held that a candidate was permitted to file nomination papers as a candidate of an independent party because the candidate has previously voluntarily withdrawn his nomination petition to have his name placed on the primary ballot of the democratic party within the time period for withdrawal. In other words, the voluntary withdrawal “undid” ab initio the candidate’s nomination petition. Finally, the Lachina Court reviewed this Court’s decision in Baronett v. Tucker, 26 Pa.Cmwlth. 559, 365 A.2d 179 (1976), wherein we held that the candidate was barred from fifing nomination papers to appear on the ballot for the general election because he had actually participated, and lost, in the primary election preceding the general election in which he sought a ballot position. In Baronett, the Court stated that Section 976 of the Election Code “requires the Secretary to reject the nomination paper of any candidate who has filed a petition for, or who has actually participated in, that primary election in which he seeks a ballot position.” Baronett, 365 A.2d at 181 (emphasis added). Lachina and the foregoing cases discussed therein, however, do not specifically address the meaning of the term “filed” as set forth in Section 976(e) of the Election Code. We believe that, due to the plain language of Section 976(e), it must be determined whether Benkoski and Stewart had “filed” a nomination petition for the office of supervisor in the May 2007 primary. In ascertaining this meaning, we look to Sections 976(e) and 977 of the Election Code, 25 P.S. § 2937. Section 976(e) of the Election Code provides that no nomination paper shall be permitted to be filed “if the candidate named therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed.” 25 P.S. § 2936(e). Pursuant to Section 977 of the Election Code, “all nom ination petitions and papers received and filed within the periods limited by this act shall be deemed valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside.” Accordingly, if a nomination petition or paper is challenged and said challenge is sustained, the nomination petition or paper is no longer considered valid and the nomination paper or petition must be set aside. It therefore follows that the setting aside of the nomination petition or paper, “undoes” ab initio the initial filing of a candidate’s petition or paper. Thus, as in the voluntary timely withdrawal of a nomination petition, when a nomination petition is judicially set aside due to timely objections thereto, there technically was no filing of the nomination petition as the petition has been deemed invalid. Therefore, a candidate whose nomination petition has been judicially set aside is not prohibited under Section 976(e) from a subsequent filing of nomination papers in order to be placed on the ballot for the upcoming general election. In the instant matter, the trial court, by order of March 21, 2007, ordered that the nomination petitions of Benkoski and Stewart be set aside. As a result, there technically was not a filing of the nomination petitions as they were rendered invalid by the trial court when it granted the petitions to set aside. Thus, Benkoski and Stewart are not precluded under Section 976(e) of the Election Code from filing nomination papers to be placed on the ballot for the office of supervisor for Bear Creek Township in the November 6, 2007 general election. Accordingly, the trial court’s August 15, 2007 order is reversed and we will direct the Luzerne County Board of Elections to include the names of Benkoski and Stewart on the ballot for the November 6, 2007 general election as candidates for the office of supervisor in accordance with their nomination papers. ORDER AND NOW, this 14th day of September, 2007, the order of the Luzerne County Court of Common Pleas, dated August 15, 2007, at No(s) 9069 and 9070 of 2007 is reversed. The Luzerne County Board of Elections is directed to place the names of Edward A. Benkoski, Sr. and Jeffrey P. Stewart on the November 6, 2007 general election ballot for the office of supervisor for Bear Creek Township in accordance with their respective nomination papers. . 65 Pa.C.S. §§ 1101-1113. . As noted by our Supreme Court, the Election Code distinguishes between political parties and political bodies. See Packrall v. Quail, 411 Pa. 555, 556 n. 2, 192 A.2d 704, 705 n. 2 (1963) (citing Section 801 of the Election Code, 25 P.S. § 2831). "A political group which received more than a certain number of votes at the preceding general or municipal election is deemed a political party and permitted to select its candidates by the primary election method.” Id. "Any other political group is deemed a political body and must select its candidates by the more difficult process of filing nomination papers.” Id. Accordingly, Benkoski and Stewart first attempted to become their party’s candidate for , the office of supervisor by filing nomination petitions seeking the democratic party nomination in the May 2007 primary election. When the trial court granted the petitions to set aside the nomination petitions, Benkoski and Stewart filed nomination .papers seeking to be placed on the ballot as independent candidates for the office of supervisor in the upcoming November 6, 2007 general election. . Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2936(e). . We note that pursuant to Section 414 of this Court’s Internal Operating Procedures, "[a] single judge opinion, even if reported, shall be cited only for its persuasive value, not as a binding precedent.” . Section 951 governs nominations by political bodies. Section 951(e) provides, in pertinent part, as follows: (e) There shall be appended to each nomination paper offered for filing an affidavit of each candidate nominated therein, stating— (5) that his name has not been presented as a candidate by nomination petition for any public office to be voted for at the ensuing primary election, nor has he been nominated by any other nomination papers filed for any such office. . It is well settled that Sections 976 and 977 of the Election Code are in pari materia and are to be construed coextensively. Ochman Appeal, 364 Pa. 525, 73 A.2d 34 (1950); see also In re Nader, 865 A.2d 8 (Pa.Cmwlth.), aff'd, 580 Pa. 134, 860 A.2d 1 (2004), cert. denied, 543 U.S. 1052, 125 S.Ct. 884, 160 L.Ed.2d 773 (2005).

OPINION OF THE COURT CAPPY, Justice. The Appellant, Melvin Howard, was convicted of first degree murder and possession of an instrument of crime in connection with the stabbing death of Clarence Woodlock and was sentenced to death. This is an automatic direct appeal from that sentence. For the reasons we discuss below we affirm the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County, Criminal Division. In all cases where we affirm the judgment of sentence of death, this Court must conduct an independent review of the sufficiency of the evidence on the charge of murder of the first degree without regard to whether the Appellant had challenged his conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). The test for determining sufficiency is whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Based on our review, the Commonwealth clearly meets this test. The facts of the incident resulting in the death of Clarence Woodlock as established at trial are as follows. Shortly after midnight on September 27, 1987, Appellant was involved in an altercation with two men, one of whom was the decedent, at the intersection of 52nd and Market Streets in Philadelphia. Appellant called out for help, and four men came to the scene and chased the decedent and the other man away. Shortly thereafter, the decedent returned with a piece of wood, which he swung at Appellant. Appellant then pulled out a knife. The decedent and the other man took off in different directions. Appellant, along with three or four other men, pursued the decedent, who threw his piece of wood at Appellant but missed. Appellant continued to chase the decedent until the decedent fell, and as he started to get up Appellant punched him and knocked him to the ground. Appellant began to stab the decedent repeatedly, at one point using both hands to plunge the knife into decedent’s chest. Appellant then left the scene, fled to Georgia where his mother lived, and was eventually arrested there. The knife was not recovered. Appellant was tried before a jury. The Commonwealth’s witnesses included an eyewitness who testified as to the events. Additionally, the investigating and arresting officers testified, as did the assistant medical examiner for the city and county of Philadelphia who testified that the decedent’s body contained 16 wounds consistent with those caused by a knife. Appellant did not testify, and the only witness presented by the defense was trial counsel’s assistant who testified that Appellant was right-handed. The jury returned the guilty verdicts, and at the penalty phase determined that there was one aggravating circumstance and no mitigating circumstances. Thus, the sentence of death was returned. Through appellate counsel, Appellant asserts various issues of trial error and ineffective assistance of counsel before this court with respect to the verdicts of guilt. These issues were raised in post-trial motions, and all were found to be meritless. I. Error of the Trial Court First, Appellant argues that the trial court erred in permitting the Commonwealth to introduce evidence of a statement by Appellant at the time of arrest which incorporated “other crimes” evidence. The arresting officer testified that when Appellant was arrested in Georgia, Appellant asked the police what he was being arrested for. “For murder,” he was told. Appellant then replied, “Which one?” Appellant alleges that this statement creates the inference that Appellant was referring to more than one murder that he had committed, that this was therefore evidence of prior crimes, and that such evidence is typically inadmissible absent a specific exception. Appellant’s argument is erroneous. Appellant’s contention that this evidence referred to other murders committed by Appellant and that the jury would so interpret it that way is not a reasonable implication. In fact, it was only defense counsel that drew this conclusion in his closing argument, when he made a joke out of the idea that the Appellant may have committed so many murders that he had to inquire which among them he was being arrested for. The context in which this testimony was elicited would not create the inference that Appellant suggests. The response “Wfiiich one?” was an attempt by the Appellant to determine with whose murder he was being charged. The Commonwealth was clearly attempting to establish that Appellant had knowledge of the murder of Clarence Woodlock when he made this statement, and that an innocent person would not have such knowledge. Therefore, there is simply no prior crimes evidence here. Appellant also contends that the trial court erred when it ruled that Appellant could not offer evidence that he was right-handed — specifically, by signing his name for the jury to see — without being subject to cross-examination. Appellant argues that this ruling forced him to decline his name-writing demonstration and instead offer the testimony of counsel’s assistant. Appellant fervently argues that such demonstration should not be subject to cross-examination. Regardless of the merit of that contention, we fail to see how Appellant could have been harmed by the court’s ruling. Whether Appellant was right- or left-handed was of dubious relevance since according to the medical examiner who testified, handedness could not be definitively determined by knife wounds. Moreover, the testimony of the eyewitness indicated that Appellant used both hands while stabbing decedent. Finally, Appellant was in fact able to enter evidence as to his handedness; we cannot see how his demonstration would have been that much more probative than the assistant’s testimony so that his being precluded from presenting it would rise to the level of error requiring a new trial. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (error is harmless if evidence is so overwhelming and prejudicial effect of the error is so insignificant that it is clear beyond a reasonable doubt that the error is harmless). II. Ineffective Assistance of Counsel Appellant raises several arguments alleging ineffective assistance of trial counsel. In order for Appellant to prevail on each claim of ineffective assistance of counsel, he must show (1) the underlying claim is of arguable merit; (2) the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant first argues that his trial counsel was ineffective for not objecting to the introduction of Appellant’s statement “Which one?” However, we note that trial counsel did seek an in limine ruling from the trial court to exclude these statements; that motion was denied. Moreover, as discussed above, Appellant had no basis to have these statements excluded. Trial counsel cannot be held to be ineffective for failing to take futile actions or to raise a meritless claim. Commonwealth v. Rashed, 496 Pa. 26, 436 A.2d 134 (1981); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknes, 491 Pa. 215, 420 A.2d 419 (1980). Appellant next contends that trial counsel was ineffective when he failed to object, move for a mistrial or request a cautionary instruction following introduction of evidence of Appellant’s post-arrest silence. During the testimony of the arresting officer, the following exchange occurred: BY THE PROSECUTOR Q: Now, did he say anything else to you about him being down there [in Georgia]? A. No, sir. Q. How about before he said, “Which one,” did he say anything abut how long you had seen him down there? A. The only oral statement he made to me were, you know, “Why you just arresting me now? You seen me before now.” Additionally, during the closing argument, the prosecutor stated: Mr. Alva [Appellant’s trial counsel] gets up here and says, the defendant says a lot of things. Well, who, me, what, where, when, how? I didn’t do that. Is that what you heard the defendant said [sic] when the officer arrested him? Or what it real clear what he said? Which one? You’re here, I got you, we have a murder warrant. Which one. You decide what that means, ladies and gentlemen. Appellant’s ineffectiveness argument must fail because there is no merit to the underlying claim. Here, the prosecu tor is not remarking on the defendant’s post-arrest silence. Rather, the evidence and argument presented concerned Appellant’s post-arrest statements. See Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The context of the testimony elicited does not indicate that the prosecutor was attempting to create an inference that defendant’s unresponsiveness at the time of the arrest meant he was guilty; rather, as noted above, the Commonwealth was attempting to establish that Appellant had knowledge of the murder of the decedent, and that an innocent person would not have such knowledge. Appellant’s third allegation of ineffective assistance of counsel relates to trial counsel’s failure to request a cautionary instruction concerning a photograph of the Appellant. During examination of the eyewitness, a photograph of the Appellant was shown to the witness for identification purposes rather than having the witness identify Appellant by name because the witness only knew Appellant by his nickname, “Q,” or “Sin Q.” This photograph was never shown to the jury and was not admitted into evidence. On cross-examination, defense counsel showed the witness a photograph of another man, who was known as “QB,” and referred to such photograph as a “mug shot.” Apparently, trial counsel’s strategy was to imply that the eyewitness may have confused Appellant with this man known as “QB.” The photograph of QB was not shown to the jury, nor was it admitted into evidence. During jury deliberations, the jury sent a request to the judge to view the “mug shots” of Appellant and QB. This request was denied. The next day, trial counsel requested a cautionary instruction with respect to the jury’s reference to the picture of Appellant being a “mug shot”; however, the jury returned with a verdict before the instruction could be given. Appellant now argues that the jury’s conclusion that Appellant’s photograph was a “mug shot” demanded a cautionary instruction because the jury must have inferred prior criminal conduct by Appellant, and counsel’s failure to timely request such an instruction was ineffective assistance. See Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596 (1986) (plurality opinion) (may be error where mug shots were actually given to jury). This argument, however, is incorrect. Even if Appellant could show that there was some arguable merit to this claim, and trial counsel had no reasonable basis for failing to timely request a cautionary instruction, Appellant cannot show prejudice here. The fact that the jury wanted to see both pictures indicated that counsel may have created a question in the jurors’ minds that another man may have been responsible for the murder. However, this question did not rise to the level of reasonable doubt, as evidenced by the verdict. Additionally, Appellant must show that, absent the alleged ineffectiveness of counsel, the result in his case would have been different. Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993); Pierce, supra. Based on these facts, we cannot conclude that the jury’s verdict was the result of any inference of prior criminal conduct by Appellant and that the result in this case would have been different had the jury been cautioned not to make such an inference. Appellant next argues that trial counsel was ineffective when he failed to timely request that the jury be instructed that no adverse inference could be drawn from the defendant’s failure to testify (the “no-adverse-inference charge”). At the completion of the trial, the trial judge instructed the jury, but did not include the no-adverse-inference charge, and court was adjourned for the day. After the adjournment, trial counsel realized that he had not asked for the no-adverse-inference instruction. Early the next morning, trial counsel requested the court stenographer to check her notes and determine if the charge had in fact been given. After determining that it had not, trial counsel approached the trial judge and requested the instruction. The trial judge stated that he would be in the courtroom between 11:30 a.m. and 12:00 noon and would give the instruction then. The trial judge expressed the opinion that he did not believe the jury would reach a verdict before then. This did not prove to be the case, however, and the jury returned with the guilty verdicts before the instruction could be given. First, we find merit in Appellant’s underlying claim that he was denied his constitutional rights in violation of Article I, Section 9 of the Pennsylvania Constitution and that such violation does not constitute harmless error. This Court, in Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), recognized that a failure to instruct the jury that no adverse inference could be drawn from the accused’s failure to testify could never be harmless error when such instruction is timely requested. Although Appellant’s trial was conducted before Lewis was decided by this Court, this Court in Lewis noted that its holding was consistent with Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), in which the United States Supreme Court held unequivocally that the Fifth Amendment of the United Stated Constitution encompasses a right to a “no-adverse-inference” jury instruction when a criminal defendant makes a timely request to the trial court. Although the Carter court did not reach the question of whether the failure to give the instruction could never be harmless error, the general principles on which Lewis was based were enunciated in Carter and were readily available to trial counsel and the trial court. Therefore, Appellant’s claim is of arguable merit. The Commonwealth here argues that the trial court gave the jury a clear no-adverse-inference charge during voir dire. In Lewis, this Court rejected a similar argument when the jury was given various instructions during voir dire, none of which specifically stated that no adverse inference could be drawn from the defendant’s failure to testify. This Court refused to recognize an indirect, piecemeal approach to charging the jury. In Lewis, this Court stated: Having determined in this Commonwealth that a “no-adverse-inference” charge is necessary to secure the guarantees of Article I, section 9, the judge has either given the charge or he has not. Make-shift substitutes will not suffice. Juries must be told in no uncertain terms that no adverse inference may be drawn from a defendant’s failure to take the stand; otherwise, we are left to mere guesswork as to the meaning juries have ascribed to tangentially related words of the court. Lewis, 528 Pa. at 450, 598 A.2d at 980. The record here indicates that the jurors were specifically told during voir dire that if the defendant failed to present evidence or take the stand in his defense, that could not be held against him; however, such charge was not repeated at the end of the trial when the jury was given its final instructions. Although in Lewis no clear statement of the no-adverse-inference charge was given at all, we believe that the reasoning in Lewis applies equally to this situation— where the jury is given the no-adverse-inference charge but only during voir dire — and hold that the no-adverse-inference charge must be given at the time the jury is finally instructed before deliberations. In light of the importance of the no-adverse-inference charge which is “necessary to secure the guarantees” of the Pennsylvania Constitution, Lewis, 528 Pa. at 450, 598 A.2d at 980, such charge must be included in the instructions to the jury at the completion of trial, if timely requested by the defendant. Second, there was no reasonable basis for trial counsel’s course of conduct. Here, trial counsel failed to request the instruction until after the jury had been sent out to deliberate. This request was patently not “timely.” It is quite evident from the record that trial counsel’s failure to request the charge in a timely manner was unreasonable. Although as the trial court noted, not requesting the no-adverse-inference charge may in certain circumstances be a reasonable course of conduct, see, e.g., Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259 (1994); Lewis, 528 Pa. at 455 n. 14, 598 A.2d at 983 n. 14; this argument is irrelevant to the facts here, where trial counsel did ask for the charge, but in an untimely manner. It is true, as the trial judge also noted, that the reasonableness of counsel’s actions must be viewed from an objective standard established by the record, not a subjective one. However, the trial court’s conclusion that trial counsel was reasonable from an objective standpoint — that is, that it was counsel’s strategy not to ask for the no-adverse-inference charge, and such strategy is objectively reasonable — cannot stand in light of the detailed record on this point. Finally, Appellant must show that he was prejudiced by trial counsel’s actions. As noted above, this Court has held under Pierce and its progeny that a defendant is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it “could have reasonably had an adverse effect on the outcome of the proceedings.” Pierce, 515 Pa. at 162, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story, 476 Pa. at 409, 383 A.2d at 164 (citations omitted), states that “[w]henever there is a ‘reasonable possibility1 that an error ‘might have contributed to the conviction,’ the error is not harmless.” This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s Sixth Amendment right to counsel. Pierce, swpra. Here, Appellant does not specifically identify how he was in fact prejudiced, but appears to simply rely on Lewis. Lewis, however, in and of itself does not answer the question whether a defendant is prejudiced by his or her attorney’s failure to request the no-adverse-inference charge. Lems stands for the proposition that it can never be harmless error for the trial court to fail to give the charge if it is timely requested by counsel. However, as discussed above, it is not axiomatic that what can never be harmless error by the trial court equates to ineffective assistance of counsel. Under Pierce and its progeny, a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness. Appellant has not identified to this Court how he was in fact prejudiced. Nor can we discern from an independent review of the record how Appellant was prejudiced. Therefore, because Appellant has failed to meet the third prong of the Pierce test, this claim must fail. Appellant’s last claim of ineffective assistance of counsel involves trial counsel’s failure to object to a jury instruction on prior inconsistent statements when the instruc tion did not inform the jury that it could consider such statements as substantive evidence. This Court has held that prior inconsistent statements may be used as substantive evidence to prove the truth of the matter asserted therein if such prior statements were made under circumstances with an indicia of reliability. Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992); Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). See also Commonwealth v. Blount, 387 Pa.Super. 603, 564 A.2d 952 (1989). Appellant claims that in the case sub judice, the eyewitness testified inconsistently with previous statements that were made under circumstances that would provide such indicia of reliability. However, Appellant has failed to indicate which specific statements were inconsistent and we will not undertake to determine which, if any, of the witness’s statements were in fact inconsistent. In any event, we find that the trial judge’s instruction was proper. The instruction did not limit the examination of the witness’s prior statements for impeachment purposes only. Because the court did not preclude the jury from considering these statements as substantive evidence, there was no basis for an objection by counsel. Blount, 387 Pa.Super. at 612-613, 564 A.2d at 957. Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), we have the duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. After review of this case, we find that the sentence imposed was not the product of passion, prejudice, or any other arbitrary factor. We also find that the evidence supports the jury’s finding of the aggravating circumstance specified in 42 Pa.C.S. § 9711(d)(9). The record establishes that at the time of the trial herein Appellant was convicted in New Jersey of atrocious assault and battery with a knife in 1977 and atrocious assault and battery with a gun in 1978; and was convicted in Pennsylvania of robbery in 1980. In addition, after reviewing the information compiled by our Administrative Office in accordance with the requirements set forth in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 968, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), we do not find the sentence imposed upon this defendant to be disproportionate to the sentence imposed upon defendants in similar cases. Accordingly, we affirm the Judgment of Sentence of Death imposed upon the Appellant, Melvin Howard, by the Court of Common Pleas of Philadelphia County. Judgment of Sentence affirmed. LARSEN, J., did not participate in the consideration or decision of this case. ZAPPALA, J., files a dissenting opinion. MONTEMURO, Senior Justice, was an appointed Justice of the Court at the time of argument. . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 907. : A sentence of guilt without further penalty was imposed for the violation of 18 Pa.C.S. § 907. . 42 Pa.C.S. §§ 722(4), 9711(h)(1); Pa.R.A.P. 702(b). . 42 Pa.C.S. § 9711(d)(9) (the defendant has a significant history of prior felony convictions involving the use or threat of violence to the person.) . The no-adverse-inference charge as included in the Pennsylvania Suggested Criminal Jury Instructions is as follows: 3.10A (Crim) DEFENDANT’S FAILURE TO TESTIFY NOT EVIDENCE OF GUILT It is entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt from the fact that the defendant did not testify. . These facts were stipulated to for the record by defense counsel, the prosecutor and the trial judge after the reading of the verdicts. . Article I, Section 9 provides as follows: Sec. 9. Rights of accused in criminal prosecutions In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face-to-face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers of the law of the land. . The Lewis case was, however, presented to the trial judge on post-trial motions. . Although we note that as a general rule counsel cannot be found ineffective for failing to anticipate changes in the law, see e.g., Commonwealth v. Johnson, 516 Pa. 407, 532 A.2d 796 (1987), we emphasize that in this case Carter was available to counsel and counsel was in fact aware of the importance of the no-adverse-inference charge, as evidenced by his request, albeit untimely, for the charge. . The Prothonotary of the Supreme Court is directed to transmit the complete record of the case sub judice to the Governor of Pennsylvania. 42 Pa.C.S. § 971 l(i).

The opinion of the court was delivered by Thompson, J. The learned judge of the court below charged, that “ if the principal holds the agent out to the world as a general agent, in the transaction of his business; any contract he would make within the scope of that business would be binding on the principal, although there might be, as between the principal and agent, a restriction upon the general authority of the latter, if the person with whom the contract was made had no notice of such restriction.” And that persons dealing with an agent carrying on a general business, such as a general manager of a railroad contractor, would not be bound to inquire into the particulars of the agent’s authority, when held out to the world as such general agent, and particularly as the principal made no objections to his acts, and gave no notice of a restricted authority, although from time to time inspecting the progress of the work. The plaintiff in error excepts to this, and assigns error upon it, on the ground, that as it had been the practice on that work to employ hands by the day, it was an excess of authority in the agent to employ the plaintiff below by the month. And this raises the question, whether the practice restricted the authority of the agent, or whether, being a general agent, he was within the scope of his authority in contracting for tibe usual and ordinary means of accomplishing the business. His business was to advance to completion the work under his care, and this was to be done by the employment of labourers and teamsters. This was apparent and palpable to all, and being so, it is difficult to conceive, of any duty resting on a party about contracting to assist in the accomplishment of what the agent had power to do, namely, to construct the portion of the road under his charge, other than to see that he was engaging to do what was usual in such business. The authority of a general agent to contract is implied in the nature and kind of business he has to do, and is only limited to the necessary and appropriate means of accomplishing it. If it were such a business as it was apparent would last but six months, a contract for a year doubtless would not be binding on the principal, because the party employed would be acting in bad faith, in undertaking when it was apparent he would not be needed; and besides, it would be equally apparent that such a contract was not necessary to the accomplishment of the object. So, if the business were such as would apparently last for months, an employment for one or more months would seem to all to be covered by the agent’s implied authority, and would bind. In Addison on Contracts 626, the point is treated distinctly and briefly thus : “ A foreman intrusted with the general management of a trade or business, has an implied general authority from his employer to enter into all such contracts as are usually and necessarily entered into in the ordinary conduct and management of the businessand he cites the case of Richardson v. Cartwright, 1 Car. & Kirw. 328, of a foreman of a saw-mill who took an order from the plaintiff for a large quantity of Scotch fir staves, and agreed to have them ready for delivery within a particular period; it was held, that his principal was responsible for the nonfulfilment of the contract, although no particular authority from the principal was shown to authorize the agent to make the contract. See also Story on Agency, §§ 55, 56, 87, 97; 2 Kent's Com. 793, and note. A general power implies the grant of any matter necessary to its complete execution: Peck v. Harriott, 6 S. & R. 149; 17 Ohio Rep. 466. And in Scott v. Wells, 6 W. & S. 357, it was held, that a general agent to make sales was competent to rescind a contract of sale with the consent of the other party. The principle is elementary and uniform, that an implied general authority to transact business is only limited to the usual and ordinary means of accomplishing it. This doctrine is not to be confounded with that regulating special agents for limited purposes. There the extent of the authority must regulate the validity of the contract, and one who deals with such an agent must look to that. We think the court was entirely accurate in that portion,of the charge embraced in the first and second specifications of error, and that the matter complained of in the third was but a corollary thereof and accurate of course. This judgment must be affirmed. Judgment affirmed.

OPINION OF THE COURT NIX, Chief Justice. The issue before the Court is the entitlement of a convicted defendant whose direct appeal has been quashed in consequence of his escape from custody during the pendency of that appeal to reinstatement of his appeal following his recapture. The pertinent facts in this matter are not in dispute. Following a successful post-conviction challenge to his guilty plea in connection with a 1974 burglary, petitioner was retried and convicted by a jury of burglary and criminal conspiracy on July 16, 1981. Petitioner’s post-verdict motions were denied, and he was sentenced to a term of five to ten years’ imprisonment on January 28, 1982. A timely notice of appeal was filed in the Superior Court. After a brief had been filed on his behalf in that court, but prior to the scheduling of oral argument, petitioner escaped from the State Correctional Institution at Rockview on October 18, 1982. On April 15, 1983, at which time petitioner had remained at large for approximately six months, the Commonwealth filed a motion to quash petitioner’s appeal. That motion was granted on April 29, 1983. Petitioner was subsequently located and arrested by Brookfield, Ohio authorities on August 24, 1983. After his apprehension he waived extradition and was returned to Pennsylvania. On September 16, 1983 petitioner filed a petition for reinstatement of his appeal in the Superior Court. Following the denial of that petition, petitioner filed a similarly titled petition in this Court. We treated the request as being a petition for allowance of appeal pursuant to 42 Pa.C.S. § 724(b), and elected to hear the matter. We begin our inquiry by acknowledging that the right of appeal is guaranteed by Article 5, section 9 of the Pennsylvania Constitution. Our past decisions have emphasized that this constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver. See, e.g., Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 223 A.2d 749 (1966). Nevertheless, the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision. Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Bolognese, 428 Pa. 405, 239 A.2d 307 (1968); Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967). “Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law." Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975). In Pennsylvania this practice has been frequently followed, see, e.g., Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976); Commonwealth v. Lewis, 300 Pa.Super. 191, 446 A.2d 295 (1982); In Interest of Dixon, 282 Pa.Super. 189, 422 A.2d 892 (1980); Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975); and is expressly provided for in our Rules of Appellate Procedure. Pa.R.A.P. 1972(6). It is within the discretion of the reviewing court to take such an action sua sponte, Commonwealth v. Tomlinson, supra, or on motion of the Commonwealth, Pa.R.A.P. 1972(6). The procedure of dismissing the appeal of a criminal appellant who becomes a fugitive is unquestionably appropriate. As we explained in Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975): The rationale behind dismissal of an appeal while a convicted defendant is a fugitive from justice rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court. See Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876); Ruetz v. Lash, 500 F.2d 1225 (7th Cir.1974); United States v. Swigart, 490 F.2d 914 (10th Cir.1973); Johnson v. Laird, 432 F.2d 77 (9th Cir.1970). Id., 460 Pa. at 311-312, 333 A.2d at 743. More fundamentally, however, a defendant’s resort to escape constitutes a flagrant and deliberate bypass of the entire judicial process. The escape of a convicted defendant from confinement may properly be considered a rejection of the legitimate means afforded the defendant for challenging his conviction and imprisonment. Thus, by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims considered. As the United States Supreme Court, in dismissing an appeal upon learning of the appellant’s fugitive status, forcefully stated: No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). In the instant matter, petitioner does not question the propriety of the dismissal of his appeal on the ground of his fugitive status. He argues, however, that since he has been apprehended and returned to the jurisdiction of the court his appeal should now be reinstated. Petitioner maintains that if the unresponsiveness of a fugitive to the court’s judgment is the main reason why his appeal is quashed, it is illogical to refuse to reinstate the appeal once the defendant is back within the control and jurisdiction of the court, and that the only basis for such a refusal is to punish the escapee. We find this argument unpersuasive. The fact that a defendant is subsequently recaptured provides no basis for disturbing an order dismissing his appeal. As we indicated above, a defendant who elects to escape from custody forfeits his right to appellate review. It would be unseemly to permit a defendant who has rejected the appellate process in favor of escape to resume his appeal merely because his escape proved unsuccessful. Close examination of appellant’s argument demonstrates that his position is flawed. His constitutional right of appeal was exercised when his matter was presented to the Superior Court for its review. That review was aborted by his criminal behavior. He does not challenge the fact that his escape justified the initial quashing of the appeal. Thus the question is not whether he should be stripped of his right of appeal because of his escape, but rather whether his apprehension, which he in no way intentionally assisted, should entitle him to rights already forfeited. We can ascertain no reason in logic or any policy which would support such a conclusion. Hall v. State of Alabama, 700 F.2d 1333 (11th Cir.), cert, denied, — U.S. —, 104 S.Ct. 183, 78 L.Ed.2d 183 (1983); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir.1980); Estrada v. United States, 585 F.2d 742 (5th Cir.1978); United States v. Smith, 544 F.2d 832 (5th Cir.1977); United States v. Shelton, 508 F.2d 797 (5th Cir.), cert, denied, 423 U.S. 828, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975); State v. Brady, 655 P.2d 1132 (Utah 1982). The petition for reinstatement of appeal is denied. ZAPPALA, J., files a concurring opinion. . There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law. Pa. Const. Art. 5, § 9. . Rule 1972. Dispositions on Motion Subject to Rule 123 (applications for relief), any party may move: ****** (6) To continue generally or to quash because the appellant is a fugitive.

Separate opinions of the Court, in each case, were delivered as follows, by *Rogers, J. By the civil law, husband and wife are considered as persons capable of distinct and separate rights, and of making separate contracts, and they may even sue each other, as independent individuals; but by the common law, they are looked upon as one person; the legal existence of the wife, is to all civil purposes, merged in that of her husband; and, consequently, generally speaking, any contract made with her, is absolutely void. How far a court of chancery could reach her, in certain cases, in respect to her separate estate, does not enter into this controversy; and nothing we now say can be construed as having any bearing upon a point which may hereafter arise. But although a married woman is not personally liable on her contract, yet she may act, and frequently does act, as the agent of her husband, and in that capacity may charge him with the payment of goods, purchased by her, although she cannot buy goods so as to charge him, without his assent, either express or implied. If goods come to the use of the husband, or to the use of his family, with his knowledge, he is chargeable; as if they are brought to his house, and used there. If the wife be allowed by the husband, as is generally the case, to be housekeeper, and to buy for him, or buy necessary apparel for herself, or necessaries for herself and family, or goods to carry on a trade conducted by her, during her cohabitation with her husband, his consent is presumed. In all such cases, the contract is with him, through the agency of the wife. When the husband dissents from such acts of the wife, beforehand, no such presumption can arise; and, consequently, in such cases, he is not liable on contracts made with her. Even where a man and wife are living, apart, if the husband has any control over goods, improvidently ordered by his wife, so as to have it in his power to return them to the vendor, and he does not return them, or cause them to be returned, he adopts her act, and renders himself responsible. Nor can a husband and wife, by any private understanding or agreement between them, of which others are ignorant, change their legal capacities and characters. It follows from these principles, which are supported by reason, as well as by the authorities that have been cited at the bar, that if the husband assents, or knowing of the contracts of the wife, does not expressly dis sent, he is chargeable with her agreement; or if a contract be made by the wife, of which he is afterwards informed, and he acquiesces in it, by using the goods, and treating them as his own, he cannot avoid the legal responsibility which the law throws upon him. Where the husband is cognisant of the contract, the legal liability is incurred; and if he wishes to avoid responsibility, it is his duty expressly to dissent; and if the goods come into his possession, with a knowledge of the contract, to take the earliest opportunity to return them to the vendor. It is very clear from the evidence, that Edward Mackinley was perfectly acquainted with the course of dealing with his wife, before, at the time, and after *the several contracts made with her. His consent will therefore be and he can only avoid his legal responsibility, by an express disavowal of her acts, before, at the time, or after the contracts made, or by an immediate return of the goods to the vendor. But it is contended, that where credit is given to the wife, the husband is not liable, although the-wife lives with her husband, and he sees her in the possession of the goods. For this position, the plaintiff in error relies on Manby v. Scott, (I Mod. 138); Bently v. Griffin, (5 Taunt. 855); Metcalf v. Seaw, (3 Campbell, 22), and Montague v. Benedict, (3 Barn. & Cress. 631). In delivering the judgment of the court, in Manly v. Scott, Chief Justice Hale says, “ If a man takes my wife, and clothes her, this amounts unto a gift of the apparel unto her. 11 Hen. 4, 83. And I may take my wife, with the apparel, and no action lies against me. By the same reason, when a man delivers stuff, or other .wares, to my wife, knowing her to be a feme covert, to make apparel, without my privity or alloivanee, this shall be construed to be a gift of the stuff unto her, and I shall not be charged in an action for it.” In Bently v. Griffin, the question was, whether the general liability of the husband was not repelled by the circumstances, which showed that the credit was given to the wife. The wife purchased some fashionable dresses, unsuited to her condition in life; and the only fact, from which a knowledge of the sale could be brought home to him, was that some of the articles furnished by the plaintiff, were worn by her in the presence of her husband. But to rebut the fact of knowledge by the husband, and his consequent acquiescence, circumstances were shown which rendered it clear to the mind of the Court, that the plaintiff gave credit to the wife alone, without any idea that recourse should be had to the husband. The bills drawn on her, with a full knowledge that she was a feme covert, were accepted and paid by her. She also gave directions to the servant, when the articles were brought home, to put them away so that her husband might not see them. It is difficult to resist the conclusion, that the tradesman and wife were well aware of their relative situations, and that he was willing to take the chance of payment by her. Stone v. M’Nair, (7 Term Rep. 166,) is the Case of a loan to the wife, without any authority of the husband, express or implied, for which the husband was held not to be liable. Metcalf v. Shaw, (3 Campbell, 27,) recognizes the general principle, that where credit is given to the wife, and not to the husband, he is not chargeable. Wearing apparel was supplied to a married woman, in quantities unsuitable to her husband’s degree, and without his knowledge; for which the credit was given to her, and her promissory note was taken in payment. “The action clearly cannot be maintained on the promissory note,” says Lord Ellenborough, “ as the wife had no authority, general or special, from her husband as his agent; and I think, he is not liable for any part of the goods, on this plain ground that they were not supplied on his credit, *and the plaintiff looked to the wife only for payment.” Montague v. Benedict, it appeared that the plaintiff had,- in the course of two months, furnished to the defendant’s wife, jewellery to the amount of 83?. and had always, when called on, avoided seeing the defendant; that goods to that amount were in no respect necessary to the defendant’s station in life. It was held, that as there was no evidence of any assent of the husband to the contract made by his wife, an action for the price of the goods, could not be maintained. In order to avoid the responsibility which the law throws upon the husband, there must be a want of knowledge of the transaction, an absence of assent, either express or implied, and moreover, the credit must be given to the wife, and not the husband. And this unquestionably is the amount of the cases which have been cited. With this qualification, I fully subscribe to the soundness of the principles stated. They are necessary to protect husbands from the folly or fraud of tradesmen on the one hand, and the improvidence of wives on the other; but this principle cannot apply, where the contract is made with his knowledge and assent. Where he assents beforehand, or knows of it, and does not expressly forbid it, or either uses the articles himself, or permits his family to use them, it would be a gross fraud to attempt to shield himself from payment. Whether the credit is given to the wife, is a question of fact for the consideration of the jury; but I cannot believe, that where a husband is well acquainted with the course of dealing in which his wife is engaged, when he does not forbid it, nor take any steps to put others on their guard, these cases can be made to apply. Mrs. Mackinley denies her liability, because she is a feme covert; and Edward Mackinley, because he did not make the contract; but the plain answer to this subterfuge, for I can view it in no other light, is, that it is the contract of the husband through the agency of the wife. His consent is presumed, and the presumption can only be rebutted by an express prohibition on the part of the husband. The fact that the contract was made by the wife, and that she is charged with the goods, is, under the circumstances, of but little weight. It affects the form, but not the substance, of the contract. It by no means of itself discharges him from liability, which is the legal consequence of his assent to her acts. If a man obstinately and perversely furnishes a wife with articles, unsuitable to her condition in life, in opposition to the known will of her husband, this is a gift to her; and this principle is asserted in Manby v. Scott, and in the other cases cited. When it assumes the form of a contract, it creates a moral obligation; but the policy of our law forbids that it should be treated as a legal obligation, affecting the liability of the husband or wife. Such, we think, are the principles which must govern in an action on the contract of sale. But this is an action of replevin, which disaffirms the contract. *The plaintiff contends that the suit can be maintained on three grounds: 1st. That the property has never been changed; the goods having been obtained under such circumstances of fraud, as vitiated the sale. 2. Because the parties rescinded the contract. 3. Because, by the plea of non-cepit, the property is admitted to be in the plaintiff. It would be a dangerous doctrine to establish, that where a person purchases commodities which, at the time, he is conscious he shall be unable to pay for, though these goods may have after-wards passed through other hands, in the fair way of purchase, or third persons may have become, in the regular course of business, interested in them, the original seller shall have the right to recover them, in whomsoevér’s hands they may be. But whatever may be the limitation of the right of the vendor, it is certain, as a general principle, that when a person purchases goods, with a preconceived design of not paying for them, it is a fraud, and the property in the goods does not pass to the vendee. Replevin, or trover, will lie by the vendor, against the vendee, although not against a bona fide purchaser without notice ■of the fraud. It is a question of fact, whether the vendee has made an improvident sale, or the defendant has fraudulently obtained the possession of the goods. If the jury believe the defendant formed a deliberate plan to obtain the goods, intending that they never should be paid for, with a preconceived resolution to embezzle the money, or to become insolvent, or to pass them over to a favoured creditor, the defendant has been guilty of fraud, and the property in the goods does not pass. It is alleged, that the defendant did not buy the goods in the regular course of trade, but that he bought them for the fraudulent purpose of having them resold at a less price. If this was the intention of the vendee, and this purchase was the result of a general plan to defraud, the vendor may reclaim his goods, whatever appearance of fairness may attend the particular transaction of sale itself. What act of affirmance of the contract by the vendor may preclude him from asserting a right to the specific articles sold, it is not necessary to. determine; that right, however, may be maintained at any distance of time after the sale, where the fraud has been concealed, provided third persons may not have acquired an interest in the goods. But although the lapse of time will not of itself, without more, prevent the vendor from re-asserting his right to the property sold, yet he should be prompt in disavowing the contract, after coming to a knowledge of the fraudulent conduct of the vendee. He must do no act in affirmance of the contract, particularly when others may have credited the vendee, on the faith that he was the owner of the goods, or when the vendee has committed a notorious act of insolvency. That there should be some limit, on *the ground of policy, to the power of the vendor, in this respect, is plain, but the difficulty is to lay down any precise and definite rule. Each case must depend on its own circumstances: but in coming to a conclusion that fraud exists, in a particular case, the jury should be careful of the weight to be attached to transactions long subsequent in point of date. To show fraud in the defendant and his wife, the evidence referred to in the second, fifth, sixth and twelfth exceptions, was properly received. There was some evidence, namely, the articles of agreement between Mackinley and wife, which were concealed, the sudden expansion of business, and accumulation of goods, much beyond the wants- of her ordinary and legitimate business, the immediate sale of some of the goods at a reduced price, and their repurchase, and the refusal to pay for goods, under the pretences stated, which tended to show a systematic plan and combination between Mackinley and wife to purchase goods, among which this parcel was one, with the fraudulent preconceived design of not paying for them. For this purpose, all the transactions of Mrs. Mackinley, and her declarations, in connection with the business in which she was engaged, as the agent of her husband, were properly admitted in evidence. It is true, that a disposition to cheat one person, cannot be called in to aid evidence of fraud in a subsequent, or prior and distinct transaction. But when it is one of a series of acts, although with dis tinct and different persons, it may be received to prove a general combination, or preconcerted plan, to cheat and defraud, of which the one in controversy may be the result. The evidence was properly admitted, to show a general design in these parties to obtain the possession and control of a large amount of goods, under the false eover and pretence of a regular business, whereas the real, but concealed intention was, to dispose of them in a clandestine manner, with a view of converting them into cash, and by this means eluding the just claims of creditors. 2d point. That the defendant has disclaimed the contract. And this is a question for the jury; for if the defendant has disavowed all property in the goods, the vendor may reclaim them and recover the specific articles, or their value, in this action. From the return of the contract of sale, it is obvious, that when once entered into, it cannot be rescinded by either of the contracting parties, without the consent of the other; but an agreement .may be rescinded with the consent of both. When the vendee disavows all property in the goods, and refuses to pay for them, the vendor may elect to consider the contract at an end. If the defendant disavows the contract, and disavows all property in the goods, the vendor may elect, either to proceed on the contract of sale, or by action of replevin, which disaffirms the contract. The of Mrs. under the circumstances of this case, his possession; *and it matters not whether he or she, or both of them, refuse to return the goods to the owner; in either case he is liable for their detention. Husband and wife are so identified, that he is liable, as well for her torts or frauds, as for contracts made by her as his agent. When the sheriff returns that the goods are eloigned, the vendor may recover the value of the goods in this action. It may also be proper here to add, that we do not think, that because the creditors have brought actions on the contract, the plaintiff is thereby prevented from supporting an action of replevin. These actions are not brought on the same, but different contracts, and although the parties may be the same, yet the actions are not inconsistent. But it is said, and this brings me to the consideration of the third point, that not only has the vendee disclaimed property in the goods, but that he has admitted on the record, that the property belongs to the plaintiff: and so unquestionably are the authorities, all of which have been collected by the industry of the counsel, with the exception of a solitary dictum of Justice Burroughs, in Clarke v. Davies, 7 Taunt. 72. By the plea of non: cepit, the caption and detention only are put in issue, and not the property which is admitted. Grilb. on Rep. 165, and the other authorities cited. The only point to which the evidenco applies under that plea, is whether the defendant took the goods or not, or whether, if he came rightfully into possession, he has, and continues wrongfully to detain them. The plea of non-cepit, as is said in Wilkinson on Replevin, has been improperly called the general issue in replevin, for it only puts in issue the caption and detention. In point of form, it denies the taking only, and is pleaded without any suggestion for a return, and, consequently, there cannot be judgment for a return on that plea. But although it denies the taking only, yet, on that plea, the unlawful detention may also be inquired into; and this has been the invariable and constant practice, not only in England, but in this state, from the first settlement of the province. In England, the action of replevin has been generally confined to goods dis-trained for rent, but with us it has been used in all cases, where chattels in the possession of one person have been claimed by another. Where the defendant wishes to put the right of property in issue, it is- done by a plea of property, which throws the burthen of proof upon the plaintiff in replevin, to prove property in himself. And this was the opinion of Justice Kennedy in Marsh v. Pier, (4 Rawle, 283,) with which, for the reasons there stated we fully concur. Clemm v. Davidson, (5 Bro. 399); 6 Harris & John. 471. Eor the reason stated in a preceding part of this opinion, we think that the affidavit of Mrs. Mackinley, which forms the third specification of error, was correctly admitted, nor do we see any thing exceptionable in the refusal of the permission to ask the as contained in the fourth error. *The seventh and eighth errors were considered together. The object of the evidence which was admitted, was to show that the goods of one of the vendors, were sold at auction, at an under value, and this was one of the means of identifying the goods. But this was not the best evidence, for Mr. Eassit, by whom the letter was written, should have been examined, and from him, or in some other way, it should have been ascertained, whether the ticket which was enclosed in the letter by him to the vendor, was attached to the goods sold at auction. The ninth and eleven errors, are intended to question the decision of the Court, in Ellmaker v. Buckley, (16 Serg. & Rawle, 72.) We have examined the judgment of the Court, as delivered by Chief Justice Gibson, and see no reason to doubt the soundness of the» principle asserted by him, in relation to the order of the examination of witnesses. We therefore see no error in this part of the case, even if such an exception was the subject of review in error. I have carefully examined the remaining errors, and with the exception of the first error, we are of the opinion they have not been sustained. The first error is that the judge admitted as witnesses severally, Peter W. Wiltbank and others; those individuals being interested in the action, and therefore incompetent to testify. By the agreement of the 14th September, 1835, the creditors of Mary Mackinley bound themselves to each other, to take such lawful measures as maybe necessary to investigate her pecuniary affairs and transactions, and to discover and apply her property to the payment of her just debts, without preference or distinction. They also agreed to contribute in the ratio of -their respective debts, to- such expenses as may be necessary to carry the agreement into effect. At a subsequent meeting of the creditors of Edward Mackinley, (and in this transaction his and her creditors are the same,) it was resolved, as the sense of the meeting, that all replevins and other process which had been issued, were for the common benefit of those who had or might sign the agreement of the 14th September, 1835. The parties to these agreements, as is very clear, make common cause with each other. As they are entitled to all the benefits as equal participators in the amount recovered in the replevin, so they are liable to contribute to its expenses and costs; and a refusal to do so would be a gross fraud on the plaintiff on record. He could not discontinue the suit without their assent, nor could they refuse without breach of the agreement, to contribute to the expense of the suit, in the ratio of their’respective debts. The fact that their names do not appear on the record is immaterial. In Gallagher v. Milligan, (3 Penn. Rep. 177,) it was held, that any person, who, *at the time of the commencement of the is entitled to a of the money sued for, is liable to costs; and is, therefore, incompetent to give evidence, although he may release his interest to the plaintiff on record. On the authority of this case, we are of the opinion, that the Court erred in admitting the witness without payment of costs. Judgment reversed, and a venire de novo awarded. The opinion of the Court in Mackinley v. Heivitt, was also delivered by Bogers, J. The point ruled in Mackinley v. M'Gregor, renders a minute investigation of this case wholly unnecessary. It would lead to a repetition of the principles there stated; for in all the essential features, the cases are the same. It is, however, an act of justice to acknowledge the aid we have derived from the industry and research of the counsel who argued this cause. This, unlike Mackinley v. M'Gregor, and in this only they differ comes before us on a demurrer to evidence. “ He who demurs to parol evidence,” says Chief Justice Tilghman, in Dickey v. The Administrators of Putnam, (3 Serg. & Rawle, 416,) “engages in an uphill business. Every point is taken fro confesso which the jury might, with the least degree of propriety, have inferred from the evidence. The defendant admits every fact which the jury could have found upon the evidence.” Now, whether the jury could have found fraud, is immaterial, as they could without doubt,, have inferred with propriety, the several points on which the District Court founded their judgment; and these we concur with them in thinking, and for the reasons given by Justice Jones, who delivered the opinion of the Court, entitled the plaintiff to judgment on the demurrer. Judgment affirmed. Cited by Counsel post, 492; 4 Wharton, 502; 6 Id. 421; 3 Watts & Sergeant, 480 ; 6 Id. 348 ; 2 Barr, 155 ; 3 Harris, 187 ; 5 Id. 312; 1 Casey, 198 ; 2 Grant, 200 ; 1 Wright, 216 ; 2 P. F. Smith, 532: 2 Miles, 453. Cited by Court 7 Watts, 307 ; 2 Harris, 277 ; 4 Id. 199 ; 8 P. F. Smith, 457. Explained 9 Harris, 369, and commented on 2 Miles, 239. As to contracts of married women under the act of 1848, see 8 Casey, 433; 11 Id. 389 ; 1 Wright, 254 5 P. F. Smith, 386. See 3 Harris, 513; 5 P. F. Smith, 177. See 7 Wright, 442.

The opinion of the Court was delivered by Gibson, C. J. — Not only convenience but necessity calls for a definite rule to produce certainty of result in the determination of facts which must be passed upon without proof; and such can be obtained only from the doctrine of presumptions, which, however arbitrary, is indispensable, and, when founded in the ordinary course of events, productive of results which usually accord with the truth. There is nothing so frequently unattended with the ordinary means of proof, and yet so essential to the determination of a right, as the time of an individual’s death. The common law soon had recourse to presumption for the continuance of life, by casting the proof of its cessation on him who alleged it; yet it must have been obvious that a counter-presumption of superior power, founded in experience of the ordinary duration of human existence, and leading to a certain conclusion of death, might be raised from lapse of time alone. The latter, however, would be but a natural presumption, producing, not constructive belief but actual conviction; and failing to apply its rule to cases without regard to circumstances, it would be inadequate to the necessities of legal adjudication. Sensible of this, the English judges provided for these necessities by limiting, in analogy to their statutes concerning leases and bigamy, the presumption of life to the period of seven years. These statutes are not in force here, nor have we any of our own which correspond to them: consequently the period assumed with us, must be an arbitrary one, just as is the period for the presumption of payment, which corresponds with the English statute of limitations, to bar an entry, instead of our own. The period assumed by the English judges, however, is a reasonable one, and we have been cautiously but constantly approaching it. That it had not already been arrived it, as in some of our sister states, by direct decision, is to be ascribed to the absence of a case which required it. Such a case now occurs; and the principle is to be considered as definitively settled. But the presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period; so that the person mus?be taken to have then been dead and not before. Indeed that is a necessary conclusion from viewing it, not merely as a limitation, but as a countervaling presumption, which, as it does not supplant its predecessor before the end of the period, assumes no more than that the individual and the period expired together; and the predecessor being still in force to rule the case in respect to the time covered by it, is sufficient to sustain an inference of intermediate existence throughout. Thus the presumption of life continues till it is-displaced by a more potent one, which, however, has no retroactive force; and indeed it would be of little use if it had, for to leave the time of the death still uncertain, would leave a perplexity which it was its purpose to remove. It is undoubtedly true that additional circumstances of probability, may justify a presumption that the death was still sooner; but these, where they operate, introduce a distinct and dissimilar principle. What seems to me to be a palpable error of Chief Justice Denman, in Knight v. Nepean, on the authority of which the -present case was ruled below, is the view he took of the presumption of death from the efflux of a definite period, as being, in some measure, a natural one operating within the period and in proportion to its tendency to produce actual belief, and not merely as an artificial one tending to the legal conclusion of a fact without the period, which independently of circumstances, a jury is bound to draw. A similar want of attention to its class, produced those loose and indeterminate dicta in regard to the presumption of payment from lapse of time, which were noticed in Henderson v. Lewis, (9 Serg. & Rawle, 384.) It certainly has not been expressly decided that the person must be taken to have lived throughout the period; but that conclusion inevitably -follows from the legal presumption of life, which though prospectively rebutted at a particular period, is sufficient to sustain the allegation of existence during the time it lasted. On the other hand, there is no precedent to the contrary; for the presumption In Watson v. King, which grew out of the probable fate of a missing ship, rested 'on circumstances very different from those which are usually connected with the probable fate of an absent individual. In / the case at bar therefore, we must say there was an error in leaving; the jury to presume the death to have been at an intermediate period, unless we discover in the case at least a spark of evidence that the individual was, at some particular date, in contact with a specific peril as a circumstance to quicken the operation of time. The circumstance relied on, is the departure of the individual by sea; but the perils of the sea are general, not specific; and they are not present but contingent. ■ They-are such as may or may not occur; but to accelerate the presumption from time, or more properly to turn it from an artificial into a natura.) one, it is necessary to bring the person within the range of a particular and an immediate danger —not such as is contingently incident, in some degree, to every mode of conveyance. *A natural presumption arises only from a violent probability, because it is a conclusion drawn by experience from the usual current of things; but no violent probability of death arises from a peril, which, though possible, is remote.* All the examples put by the judge himself, are those of special perils which bear directly on the person with greater or less probability of its destruction in proportion to their urgency; and such was the nature of the probability in Watson v. King. Now there is no mode of conveyance which has not its perils;. and if the mere departure of a person not heard of during the period of legal presumption, were enough to warrant a natural presumption ofhis death within a more contracted one, the legal presumption, stript of its efficiency to dispose of the uncertainty it was introduced to remedy, would be deprived of the greater part of its value. We are of opinion, therefore, that though the exceptions to other parts of charge are not legitimate subjects of revision here, the direction that there was evidence from which the jury might infer the death to have been at a timejshort of the period of legal presumption, was erroneous. Judgment reversed and a venire de novo awarded.

Rogers, J. The rights of the relator and respondent depend upon the construction of that part of the amended constitution, which provides “That the prothonotaries of the Supreme Court shall be appointed by the said court for the term of three years, if they so long behave themselves well: prothonotaries and clerks of the several other courts, recorders of deeds, and registers of wills, shall at the time and places of election of representatives, be elected by the qualified electors of each county or district over which the said courts extend, and shall be commissioned by the governor. They shall hold their' offices for three years, if they shall so long behave themselves well, and until their successors shall he duly qualified. Yacancies in any of the said offices shall be filled by appointments to be made by the .governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.” The cardinal rule in the construction of the constitution is the spirit and intention of its framers;,and this intention we have endeavoured to carry out in The Commonwealth v. Swift, 4 Wh. 186, and in The Commonwealth v. Collins, 8 W. 844, and in other cases. The respondent was elected clerk of the Orphans’ Court, for this city and county, the second • Tuesday of October, 1845, and being so elected, the then governor of the commonwealth issued a commission in due form, dated the 9th November, 1845, whereby the respondent was commissioned, in the language of the constitution, to be clerk of the Orphans’ Court for the term of three years to be computed from the 1st day of December, 1845, and until a siiccessor shall he duly qualified. The respondent took the oath of office, gave bond with sureties as required by law, was in all respects duly qualified, entered on the duties of his office the 1st December, 1845, behaved himself well, and has since used and continued to use and exercise the same. The second Tuesday of October, 1848, Oliver Brooks was elected successor to the same office, but haying died the Tth November, 1848, within thirty days (the time prescribed by the act of the 2d July, 1839) from the day of election, he never was nor could be qualified to fill the office by taking the necessary oath or by giving bond as the law requires. In this position, the governor, reciting that a vacancy had occurred in the office, issued his commission to the relator. The relator contends that, according to the spirit of the constitution, the tenure of county offices is strictly limited as to time, viz: three years; that any extension of the time arises only from the exigency of the case, and must be strictly construed; that the holding over the incumbent is confined to the single instance of failure to qualify — a failure resulting from the act or omission of the successor; that there can be no holding over when a vacancy occurs which is to be filled for a limited time by executive appointment ; that if neither the death of the successor, before his commission takes effect, nor the expiration of the term of three years for which the respondent was elected and commissioned, create a vacancy, the incumbent necessarily holds over for three years, and a popular election next year is defeated; that the office, so far as to create a vacancy by death, is filled by election, and that at the expiration of the term of three years, for which an incumbent is elected and commissioned, a vacancy occurs, even though there be no election by the people, as, in case of a tie, such incumbent continues under a provisional tenure, being only a temporary officer, until his successor shall be duly qualified. The respondent denies and avoids the several propositions of the relator, and insists that sedulous care is taken in the amended constitution to restrict, as far as possible, the patronage of the executive, and to give him the power of appointing to the office in question only when the public necessity requires it; that the governor has the right of appointment in the single case where a vacancy has occurred, and then only because public convenience demands that there should be some actual incumbent competent to fulfil the duties of the office. The fundamental error which lies at the root of the whole case of the relator, consists in the assumption that, according to the spirit of the constitution, the tenure of cohnty offices is strictly limited as to time, viz: three years; and that any extension of the time arises only from the exigency of the case, and must be strictly construed. The relator assumes that the respondent was elected and commissioned only for three years; but this is a mistaken view of the constitution, and is only plausible by obliterating several important words from the constitution. The constitution reads thus: — “ They shall hold their offices for three years, if they shall so long behave themselves well, and until their successor shall be duly qualified.” The obvious meaning of this clause is, that they cannot hold office less than three years, if they so long behave themselves well; although, on the happening of certain contingencies, they may hold office for a longer period. It is therefore of no consequence that, according to the respondent’s construction, he holds office six, instead of three years. Without intimating an opinion as to the term of his office, or that, if as the relator contends, it would -be a great misfortune, we think there is nothing in the argument which can overrule the plain words of the constitution. That question does not directly, although it may incidentally arise, and may be and has been considered by the court, and due weight attached to it, without, however, altering the conclusion to which we have felt ourselves bound to come. Besides, it will be for the legislature to determine whether ■ this result, so much deprecated by the relator, may not be removed by legislative enactment. That the respondent is entitled to hold until his successor is duly qualified, are the words of the constitution. Was there a successor duly qualified within the spirit of the constitution ? is the point on which the question mainly, if not entirely depends. Being duly qualified in the constitutional sense, and in the ordinary acceptation of the words, unquestionably means that he, the successor, shall possess every qualification; that he shall, in all respects, comply with every requisite before entering on the duties of the office; that, in addition to being elected by the qualified electors, he shall be commissioned by the governor, give bond as required by law, and that he shall be bound by oath or affirmation (vide 8th article of constitution) to support the constitution of the commonwealth, and to perform the duties of the office with fidelity.' Until all these pre-requisites are complied with by his successor (for if you can dispense with one, you can dispense with all), the respondent is de jure, as well as de facto, the clerk of the Orphans’ Court. The words are emphatic and full of meaning. The successor must not only be qualified, but duly qualified; and qualification for office, as defined by the most approved lexicographer, is endowment or accomplishment that fits for an office; having the legal requisites; endowed with qualities fit or suitable for the purpose. In this sense it is used in the same section of the constitution, section 8, article 6, as respects electors; “qualified electors” clearly meaning citizens, either native or naturalized, who have paid taxes, and who are in all other respects entitled to vote. In the same connexion it is used in other parts of the constitution, and in various acts of Assembly, which it would be a work of supererogation particularly to enumerate. Even in its direct, restricted, popular sense, it means he shall have taken an oath or affirmation. The constitution provides not only that the officer shall be elected, but that he shall be commissioned by the governor. This is conclusive proof that the election alone does not constitute him an officer in a constitutional sense. Eor there may be cases where the governor would be bound by an imperious sense of duty to withhold the commission from a person duly elected by the qualified electors; as, for example, in cases of insanity developed since the election, or the conviction of some high crime or misdemeanour. Where this occurs, and it is possible, although not probable, no person will venture to contend that the office is filled by election, as the relator contends, so as to create a vacancy by death. It is said, and this is the strength of the relator’s case, that the holding over of the incumbent is confined to the single instance of failure to qualify, a failure resulting from the act or omission of the successor. But for this distinction, we see no warrant in the constitution, or in the reason of the thing; for of what consequence is it in principle, whether the officer elect is prevented from qualifying himself by an inability or unwillingness to give the necessary security, by neglect or refusal to take the required oath or affirmation, by insanity or crime, or by the contingency of death ? It is enough for the incumbent who holds the office by a constitutional tenure, that for some cause, with which he has nothing to do, the requirements of the constitution and laws have not been complied with. The only inquiry is, has a successor been duly qualified ? if he has not, we are not at liberty to inquire whether it has arisen from his own act or omission, or has been caused by death, or by other causes over which the successor may have had no control. The 10th October, 1848, Brooks was elected to be the respondent’s successor, but he never was qualified, and never could be qualified, for he died the 7th of November 1848, within thirty days from the day of his election, and before his commission could be legally issued. Did the case rest here, the title of the respondent would be clear and unquestionable; but tbe relator contends that the facts presented a case of vacancy, which the governor had the right to fill, and this brings us to the consideration of that question. Yacancies of the offices enumerated in the preceding part of this section, so reads the constitution, shall be filled by appointments to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid. To maintain this proposition, that in this case the governor has the right of appointment, as a case of vacancy, it is necessary for the commonwealth to establish that the office, so far as to create a vacancy by death, is filled by election. On this point several remarks have already been made pertinent to the point, which it would be useless to repeat. That the framers of the constitution did not look to an election merely as conferring office, is very evident, because otherwise we must strike out the important words that before a person who has been regularly elected, commissioned, given bond, and sworn, can be suspended, his successor must be qualified in like manner. That there is a difference between the election and qualification of the officer, is too apparent to need the aid of argument. The successor must not only be elected, but he must be qualified, are the words of the constitution, showing beyond all question that the election and qualification do not mean one and the same thing. It will be observed that the terms on which alone the governor can appoint, are a vacancy in the office, and that there can be a vacancy in an office when there is a person in possession whom all acknowledge to be rightfully in possession, having a perfect right to exercise all the powers and duties of the office, and to receive and enjoy all its emoluments, is a position difficult to comprehend. It is an abuse of terms to say that at the time the governor issued his commission to the relator the office was vacant, for no person can plausibly deny that the respondent was the rightful possessor of the office, at that time. The primary object of the framers of the amended constitution (whether wisely or not it would be unbecoming for me to say) was to diminish, as far as practicable, executive patronage; and in accordance with this policy it was thought proper to confine the power of appointment to the single case of a vacancy in office. What, then, is meant by a vacancy in the office ? Surely an office cannot be vacant when it is filled by a person in the legitimate exercise of all its functions, in the lawful enjoyment of all its emoluments. It would be a waste of time to enter into an elaborate argument to prove a proposition so plain. But disguise it as you may, this is the case here. At the time the governor issued his commission to the relator, the present incumbent, beyond all controversy, was the legal officer of the court. His time had not expired, nor could Jie be replaced except by a person fulfilling all the constitutional and legal requirements. The relator’s proposition involves the legal absurdity that two persons can be the lawful officer of the same office at one and the same time. In this case we have to choose between the elect of the people and the appointee of the governor, and we think we cannot assail the intention of the constitution by inclining to the former rather than the latter*. The respondent was elected by the people, and we see nothing by which his title to the office has been affected or impaired. Judgment for defendant.

Mr. Justice Paxson delivered the opinion of the court, This was one of the cases brought against the county of Allegheny to recover damages for property destroyed by the mob during the riots of 1877. The particular property which is the subject of this suit consisted of sixty barrels of whiskey, belonging to the plaintiffs below. It was wholly destroyed, and its value is not disputed. A verdict and judgment were had in favor of the plaintiffs, and the defendants have removed the record to this court for review. The questions it presents are of grave importance. The plaintiffs have no common-law remedy. They must recover, if at all, by virtue of Act of May 31st 1841, Pamph. L. 416, which provides, that “ in all cases where any dwelling-house or other building or property, real or personal, has been, or shall be destroyed within the county of Philadelphia, in consequence of any mob or riot, it shall be lawful for the'person or persons interested in' and owning said property to bring suit against said county where said property was situated and being for the recovery of such damages as he or they sustained by reason of the destruction thereof, and the amount which shall be recovered in said action shall' be paid out of the county treasury, on warrants drawn by the commissioners thereof, who are hereby required to draw the same as soon as said damages are finally fixed and ascertained.” The provisions of this act were extended to the county of Allegheny by the Act of March 20th 1849, Pamph. L. 184. A somewhat similar act had been in force in Philadelphia since 1836. See Pamph. L. 711, sect. 36. We are charged with no duty of vindicating the wisdom of this legislation. It is proper to say, however, that the principle embodied in the act is not new. As early as 1285, the Parliament of England, by Statute of Winton, or Winchester, 1 Stat. 13 Edw. 1, p. 2, ch. 3 (see 1 Hawk. P. C., ch. 68, sect. 11), provided a remedy against the hundred, county, &c., in which a robbery should take place, for the damages caused thereby, to be recovered by the party robbed in any action against any one or more of the inhabitants. This statute was re-enacted by 28 Edw. 3, eh. 2. Subsequently the Statute 27 Eliz., ch. 13, sect. 2, provided for the assessment of the damages against all the inhabitants of the hundred after a recovery against one or more. Next we have the famous Riot Act of 1 George 1, ch. 5, sect. 1-7, which was passed by reason of the tumult attendant upon the accession of that king to the throne, and which made it a felony, without benefit of .clergy, for any persons unlawfully to assemble and demolish any church or dwelling-house. The sixth section of the same act provided that in case such church or dwelling-house should be destroyed, the inhabitants of the hundred in which it was situated should be liable for its value. This was followed by the Act of George 2, ch. 10, sect, 1, and the laws upon this subject were consolidated, in 1827. by 7 and 8 George 4, ch. 31. It will thus be seen that we have imported the principle of the Act of 1841 from that country from whence we derive the great body of our common law. That it was not transplanted at an earlier date is perhaps due to the fact that new countries, sparsely settled, do not early develop riotous tendencies. Among the numerous questions raised by the assignments of error is that of the constitutionality of the Act of 1841. As this underlies the entire case, it will be first considered. It was pressed with great earnestness upon the argument, the learned and distinguished senior counsel for the plaintiffs in error having devoted his attention exclusively to its consideration, in connection with the inapplicability of the Act of 1841 to the case in hand. It was not contended that the act was unconstitutional at the time of its passage, but that by reason of its inconsistency with the new constitution, it was not preserved by section two of the schedule, and it fell with the adoption of that instrument. This argument is based upon the theory that the constitution was not a mere amendment of the constitution of 1838, but a substitution of a new frame of government, and that it was an abrogation of all acts and authorities derived from the old frame unless preserved by the new. It is true this principle of constitutional law was introduced into this state by the constitution of 1777, and the Act of Revival of January 28th' of that year: 1 Bioren’s Laws 429. The preamble to the constitution recites the rights of the people and the oppressions of the crown, and declares that all allegiance and fealty to the said king and his successors are dissolved and at an’end, and all power and authority derived from him ceased in these colonies. It is not difficult to understand why this principle should be asserted in a constitution that was the outgrowth of a revolution and of a total severance of all political relations between the colonies and the mother country. In its application to the present times we must not overlook the fact that the conditions are essentially different. The convention of 1873 was not throwing off the yoke of an oppressor and abrogating laws imposed upon the people by a parliament not in sympathy with their views, and in whose deliberations they had no voice. The convention was simply the people uf the state, in a representative capacity, it is true, sitting in judgment upon their own acts, altering and modifying their own constitution to suit the progress of the age, and changing their own laws where deemed essential to the welfare of the state. To such a body so constituted no intention to abrogate all that had gone before can be imputed, unless such intention be clearly expressed. I will not stop to discuss the difference between the constitutions of 1838 and 1874 in this respect. It is more seeming than real. Each is an alteration or amendment of the constitution existing at the time, and nothing more. It was provided by the schedule of each, that all laws in force at the time of its adoption, “not inconsistent therewith, and all rights, actions, prosecutions aftd contracts, shall continue as if this constitution had not been adopted.” It is true the schedule of the constitution of 183§ uses the words “as if the said alterations and amendments had not been made,” instead of the words “ as if this constitution had not been adopted,” used in the schedule of 1874. The Act of April 11th 1872, Pamph. L. 53, which called the recent convention into existence, was entitled “An act to provide for calling a convention to amend the constitution.” It is true the fourth section of said act authorized the convention to propose to the citizens of the Commonwealth, for their approval or rejection, a new constitution, or amendments to the present one, or specific amendments to be- voted for separately. The amendments were radical, yet they were but amendments. A large body of the prior constitution remained. It may be called a new constitution, in the sense in which we call a machine new after it has left the repair shop. Still the fact remains that the constitution is but the prior constitution amended. It matters little how we designate it. The constitution of 1874 was not an abrogation of a former frame of government, as was the constitution of 1777. The frame of government means its form or system. In this sense it remains substantially the same. It is as essentially “ a government of the people, by the people, and for the people,” as it was before the convention met. It is changed only in matters of detail. Some of the machinery supposed to be worn out has been replaced by new, intended to be of an improved character. It was urged that the Act of 1841 is inconsistent with the following provisions of the constitution, viz.: 1st. The seventh sect, of art. 8: “ The General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” 2d. The eighth sect, of the ninth art.: “ The debt of any county, city, borough, township, school district or other municipality, or incorporated district (except as herein provided), shall-never exceed seven per centum upon the assessed value of the taxable property therein. Nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent-of the electors thereof at a public election, in such manner as shall be provided by law.” 3d. The tenth sect, of the ninth art.: “ Any county, township, school district or other municipality, incurring any indebtedness, shall, at and before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years.” 4th. The first and second sects, of the ninth art.: “All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. But the General Assembly may, by general laws, exempt from taxation public property used for public purposes,” &e., and “all laws exempting property from taxation, other than the property above enumerated, shall be void.” In addition, the said act was alleged to be inconsistent with certain other portions of the constitution, the purpose and intent of which are claimed to be to maintain equality in the burdens and impositions necessary to the public welfare, the most important of which are, art. 1, sects. 4, 14 and 23; art. 10, sect. 1; art. 15, sects. 2 and 3; art. 16, sect. 8; art. 17, sects. 1,- 3, 7 and 8. It is not deemed .essential to discuss all of 'these constitutional provisions, or to refer to them seriatim. Some of them manifestly have no application to the present contention. Thus we have no question before us as to the extent of the debt of the county of Allegheny, or of the assessed value of its property. This record furnishes us no information which would enable us to form an intelligent opinion, as to whether the judgment below so increased the debt of the county as to bring it within the prohibition of the constitution, and if it did, it would be a novel defence to an action at law for the county to plead that it already was in debt to the extent of the constitutional limitation. How far such a plea would avail in restraint of an execution, I need not stop to discuss. It is clearly no reason why a judgment should not be recovered, and I apprehend would be a frail shelter for municipal corporations from the consequences of their tortious or negligent acts. The tenth sect, of the ninth art. refers to the contracting of a debt or the incurring of an indebtedness by virtue of a contract by municipalities when it provides for the levying of an annual tax, sufficient to pay the interest and the principal within thirty years. The failure to levy such a tax by the municipality, is no reason why a party injured by its negligence should not sue therefor and recover his judgment. The argument is, that there can be no liability on the part of a municipality, because the amount thereof being unknown prior to the destruction of the property, it is impossible to comply with the mandate of the tenth sect, in providing an annual tax to meet it. The eighth and tenth sects, were not intended to make corporations dishonest, nor to shield them from the consequences of their own wrongful or negligent acts. Further than this it is not necessai-y for us now to go. The delicate questions which will probably arise under these sections will be decided when they are legitimately before us. It may be conceded that if the Act of 3841 had been passed subsequent to the adoption of the constitution, it would have been “ a local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts,” and, therefore, within its prohibition. But such prohibition is prospective. Its language is, “the General Assembly shall not pass.” Hence, it is plain the Act of 1841 is not affected by the prohibition; the only question is, was it repealed ? The act was well known at the time of the convention. It had been upon the statute books since 1841, and had been made especially prominent by reason of the Philadelphia riots of 1844. The convention might have repealed it in express terms. Yet there is no direct repeal in either the constitution or schedule. If repealed at all, it is by implication only, and fell with the adoption of the constitution with the body of the old laws that were not essential to preserve vested rights and existing institutions necessary to the public welfare. This is not an entirely new question. A somewhat similar one was considered in the Trustees of the Erie Academy v. The City of Erie, 7 Casey 515. In 1849, the town councils of the borough of Erie passed an ordinance for the paving of certain streets. Before the paving was done the legislature changed the government of the borough into that of a city, and it was argued that the ordinance fell. This court held, sustaining the court below, that the ordinance of the borough continued in force notwithstanding the change in the frame of its government. It was said by Strong, J., “ There is no doctrine better settled than that a change in the form of government of a community does not ipso facto abrogate pre-existing laws, either written or unwritten. This is true in regard to what is strictly municipal law, even when the change is by conquest. The Act of Assembly converting a borough into a city did not, therefore, of itself, and in the absence of express provisions to that effect, either repeal former Acts of Assembly relative to the borough, or annul existing ordinances. It was solely a change of the organic law for the future, and left unaffected the borough statutes, precisely as a change of .a state constitution leaves undisturbed all prior Acts of Assembly.” This case was prior to the present constitution, and has no direct reference to it. We have, however, several cases since its adoption, in which the very point in controversy was before us. The first w7as the City of Pittsburgh v. Kitty Roup, 1 W. N. C. 254, which was an appeal from a preliminary injunction restraining the city of Pittsburgh from collecting the full rate of taxation upon plaintiff’s real estate, which had been assessed as rural, under a special local act passed in 1868, and under which act only two-thirds of the city rates could be assessed and levied. Notwithstanding this act, the city councils attempted to assess and collect the full rate of city taxation from the plaintiff, claiming, that under art. 9 of the con-, stitution, which provides that “ all taxes shall be uniform,” the special act classifying plaintiff’s property as rural was inoperative; in other w7ords, that it was repealed by the new constitution. The court below thought otherwise, and granted the injunction, which action was sustained by this court. This was followed by The Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. Smith 482, where art. 7 was again under consideration. It was said by Agnew, C. J.: “ In view of the w'ide and extended effects of an immediate repeal ipso facto by the adoption of the new constitution, it behooves us to be careful in the interpretation of the sections mentioned. Upon all the .consideration we can give to this subject, after a very careful argument to assist us, we are of opinion that sect. 1 of art. 9 is not immediately operative, but was intended by the convention to be mandatory upon the legislature to enact laws framed upon its special intent, and to repeal all laws inconsistent therewith, leaving the legislature, in the exercise of wise and sound discretion, to time the repeal, and after proper general laws have been passed. Any other interpretation would lead to most ruinous results.” In Wattson v. Chester and Delaware River Railroad Co., 2 Norris 254, it was held, Chief Justice Agnew delivering the opinion of the court, that “ the provisions of the new constitution, contained in sect. 23 of art. 3, that ‘the power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law,’ was not immediately operative eo instante the constitution was adopted so as to defeat existing laws.” The same doctrine was asserted by this court in the later case of Indiana County v. The Agricultural Society of Indiana County, 4 Norris 357. The Act of March 29th 1851 enables county agricultural societies to receive from the treasurer of the county a certain bounty. Art. 9, sect. 7, of the constitution of 1873, prohibits the General Assembly authorizing any county to appropriate money for, or loan its credit to any association, corporation or individual. It was held, recognising and following Lehigh Iron Co. v. Lower Macungie Township, supra, that the prohibition of the constitution was wholly prospective, and did not repeal the Act of 1851. Even stronger, if possible, is the case of Perkins v. Slack, 5 Norris 270, in which it was held by this court that sect. 2, art. 15 of the constitution, which provides that “no debt shall be contracted or liability incurred by any building commission except in pursuance of an appropriation previously made by the municipal government,” did not affect the Act of 5th August 1870, Pamph. L. of 1871, p. 1548, creating the building commission of the city of Philadelphia, so as to prevent said commission making requisitions at pleasure upon the councils of said city for means to continue the erection of the city buildings at Broad and Market streets. Commonwealth ex rel. Chase v. Harding et al., 6 Norris 343, is the last of this series of cases. It was there held that sect. 5 of art. 5 of the constitution, which declares, that “ whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law,” is not self-executing, but merely indicates a certain basis upon which, at the proper time, and in the proper manner, judicial districts are to be created by the legislature. It was contended, however, that the cases cited are inapplicable' to the one in hand, for the reason that the special laws referred to therein Avere necessary to preserve existing institutions and regulations essential to the public interests in the localities affected; whereas the Act of 1841, is not necessary for any such purpose; that it preserved no existing institutions; that the occurrence of a mob and the destruction of property thereby was a mere potentia remotissima, and the act therefore fell. This is assuming the very point in controversy. If, as Ave are bound to presume, the Act of 1841 was a necessary police regulation at the time of its passage, Ave must regard it as essential now until the contrary is made to appear. Just here the ingenious and able argument for the plaintiffs in error fails. No reason has been shoAvn Avhy the act in question is not now as essential to the order and good government of the cities affected by it as it was at the time of its passage. Regarding it as a remedial statute, the very riots Avhich are the subject of the present contention furnish a potent argument to show that it has not outlived its usefulness. Its application to the Philadelphia riots of 1844, showed that at that time it was a much needed police regulation. It enabled the owners of property destroyed to recover its value; at the same time it inculcated a lesson of inestimable value to the municipal authorities and taxpayers of that city, the good results of which are seen in a well trained police force, and a freedom from mob violence that is exceptional. The increased growth of the cities of Philadelphia and Pittsburgh, not only in area and population, but also in the materials and elements out of which spring riots and disorders, tends to show that the Act of 1841 is even more essential now than at any prior period. In our view it certainly appears as important to the public interest in the locality affected as a law giving to the Indiana County Agricultural Society a hundred dollars per year. The late convention had in it some of the ablest constitutional lawyers in the state, among whom were two ex-chief justices of this court. Whenever that body desired the constitution to act retrospectively, and repeal existing laws, they knew how to do it. Thus, in sect. 21st of art. 3, which restricts the power of the General Assembly to pass laws limiting the time in which suits may be brought against corporations for injuries to persons or property, it adds: “And such acts now existing are avoided.” Sect. 22 of the same article, providing against investment by trustees, executors and guardians, in the bonds or stock of any private corporations, adds: “And such acts now existing are avoided, saving investments heretofore made.” In art. 5, sect. 5, regulating judicial districts, it says: “ The office of associate judge, not learned in the law, is abolished in counties forming separate districts.” Sect. 12 of the same article provides: “ In Philadelphia the office of alderman is abolished.” In sect. 21 of the same article : “ The Court of Nisi Prius is hereby abolished.” In art. 9, sect. 2: “All laws exempting property from taxation other than the property above enumerated, shall be void.” Sect. 1 of art. 16 : “All existing charters or grants of special or exclusive privileges, under which a bona fide organization shall not have taken place and business commenced in good faith at the time of the adoption of this constitution, shall thereafter have no validity.” Then we have the exception in the 7th section of the 1st article, giving power to the legislature to repeal special and local acts. This, as was said by Agnew, C. J., in Lehigh Iron Co. v. Macungie Township, supra, at p. 486, “ strongly indicates the intent that such local or special acts should remain, until legislation had been adopted to harmonize these local and special provisions with the general laws so adopted.” I may well stop here with this branch of the case. The principle that local or special laws were not ipso facto repealed by the adoption of the present constitution is too firmly established to be overturned or shaken. The cases cited, settle the broad principle that the sections of the constitution referred to, are “ not immediately operative,” but are merely mandatory upon the legislature to repeal such local or special laws after protecting such interests as need preservation by the passage of general laws. The legislature may, and doubtless will, at the proper time, legislate upon this subject. It m-ay repeal the law, or, in view of the rapid growth of other towns and cities, and the .increasing tendency to mob violence growing out of social, political and labor disturbances, may extend it over the state by a general law. I notice that the Act of the 15th of April 1863, Pamph L. 490, extends it to Northampton county. There may be acts extending it to other counties which have escaped my.notice. Until such time as the legislature shall declare its will, the Act of 1841, under all our decisions, is entitled to stand. Just here we are met with the proposition, that, if the Act of 1841 was not repealed by the adoption of the present constitution by reason of its inconsistency therewith, yet that said act is inapplicable to the case in hand; that the facts as admitted and offered to be proved were not within the intent and purpose of the act. It was urged in support of this view that the county of Allegheny has not a concentrated police force ; that its townships and boroughs are disconnected municipalities, having no combined magistracy, no organized and consolidated constabulary, and no common head to govern and direct; that the riot, by means of which the property of plaintiffs was destroyed, was the result of á labor strike extending over many states; that at the time of the passage of the Act of 1841 our present great railroad system had no existence,-and that it could not have been intended by the framers of said act that it should apply to such unlooked for and exceptional circumstances. A number of authorities were cited to show that in expounding a law., the reason and spirit and the intention thereof should be considered. No fault is found with the authorities. They are undoubted law, but their application to the facts of this case is not clear. We have here a statute that is free from ambiguity. In such case the intention of the legislature is to be collected from the words of the act. This is a primary rule in the construction of statutes : Dwarris 164. The best exponents of the legislative mind are the words of the statute where they, are free from ambiguity: Commonwealth v. Pennsylvania Ins. Co., 1 Harris 165; Bradbury v. Wagenhorst, 4 P. F. Smith 180. Although the spirit of an instrument is to be regarded no less than its letter, yet the spirit -is to be collected from the letter. It would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words expressly provide shall be exempted from their operation: Potter’s Dwarris 182 ; Story Confl. Laws 10. Of course the framers of the Act of 1841 could not have had this particular riot in view at the time of its passage, nor is it likely they contemplated the Philadelphia riots of 1844. But they did know, if they had ordinary intelligence, and that is to be presumed, that riots had occurred in the past in large cities, and were liable to occur in the future, of a character so serious as to shake the social fabric to its foundations. The act was accordingly framed broad enough to embrace any and all such disturbances for the future. How then can we say, that the riots of 1877 were not within its spirit? Is it because of the size of the mob? Yet it did not compare with the London riots of 1780, the Philadelphia: riots of 1844, or the New York riots of 1863. Is it because the mob was composed of strikers, and the object of their vengence, a railroad corporation ? No such exceptions are found in the statute, and to write them in now to meet the exigencies of this case would be judicial ex post facto legislation of the most objectionable character. The argument upon this branch of the case has failed to point out just what kind of riots were contemplated by the framers of the Act of 1841. We are left to infer, however, that the Act was intended to apply only to riots where the number engaged is small and the damage inconsiderable. • But where is the line to be drawn, and by whom ? Is the act to apply to mobs of ten persons and not to those of one hundred ? Or to those of one hundred, and not to those of one thousand? Is compensation to made for a broken window and denied where the entire building is sacked and burned ? We have been furnished with no answer to these grave questions which confront us instantly upon any attempt to give to the Act of 1841 the narrow construction claimed for it. Having disposed of these preliminary questions, we will now consider some of the incidents of the trial of the case in the court below as developed by the assignments of error. It is said that the plaintiffs did not prove any notice to a constable, alderman, or a justice of the peace of the ward, borough or township, or to the sheriff of the county in which their property was situated, of any intent to destroy their property, or of the fact that a mob had been collected for such purpose. Nor did they prove that sufficient time had not intervened to enable them to do so; and that, in the absence of such proof, it was error in the court below to charge the jury, that under all the evidence in the case, if believed by them, the plaintiffs were entitled to recover. It is provided by the eighth section of the Act of 1841, that “ no person or persons shall be entitled to the benefits of this act if it shall appear that the destruction of his or their property was caused by his or their illegal or improper conduct, nor unless it be made to appear that he or they, upon the knowledge had of the intention or attempt to destroy his or their property, or to collect a mob for such purpose, and sufficient time intervening, gave notice thereof to a constable, alderman or justice of the peace of the ward, borough or township in which said property may be situated, or to the sheriff of the said county, and it shall be the duty of the said sheriff, alderman, constable or justice, upon the receipt of such notice, to take all legal means to protect said property, so attacked or threatened,” &c. It is manifest that a property-owner cannot be in default for want of having given notice under this act, unless, first, he had knowledge of an intention on the part of the mob to destroy his property ; and second, that there was sufficient time intervening to give the notice contemplated by said act. It is equally clear that the object of such notice is to inform the proper officer, so that the property may be protected. These positions are fully sustained by authority, both in this state and in New York, where a statute similar to the Act of 1841 exists. In Donoghue v. The County of Philadelphia, 2 Barr 230, it was said by Mr. Justice Sergeant: “ The next question is as to the notice. The Act of Assembly requires that notice be given to the sheriff, alderman, justice or constable, where there is sufficient time intervening. But in what cases is the party required, by the act, to give this notice ? When he has knowledge of the intention or attempt to destroy his property, or to collect a mob for such purpose. It would be strange to require him to give notice when he has not such knowledge, and, therefore, in such case, he is not debarred from his remedy, though he has not given such notice.” In St. Michael’s Church v. County of Philadelphia, Bright. Rep. 121, the defendant offered to prove that several days before the property was burned, notice was given to two of the trustees of the church of such intention, and that they had neglected to give any notice- to the sheriff. Rogers, J., rejected the offer because the knowledge was not had by, or notice given to the trustees in their corporate and official capacity. It would be equally unnecessary to give notice to the sheriff or other officer where he already had knowledge of the facts, or such notice would be unavailing for the purpose of protection: Newberry v. New York, 1 Sweeney 369; Schiellein v. Kings County, 43 Barb. 491. That the sheriff of Allegheny county had knowledge of the mob and of their intention, clearly appears from the testimony of that officer, offered by the defendants themselves. The sheriff had visited the mob on the evenings of July 19th, 20th and 21st. When he saw the mob on the evening of the 19th they had commenced their work by the forcible seizure and retention of possession of the property of the railroad company. When he ordered them to disperse, they refused to do so, and told him “ they were going to hold that road, and that they were going to wade in blood to their waists.” The sheriff adds: The mob remained in possession of the road and increased in numbers, and that continued until Saturday evening. Mr. D. M. Watt was examined on behalf of the plaintiffs, and said that he called upon the sheriff, in company with Hon. John Scott, of counsel for the company, on Thursday night, July 19th, and informed that officer, “ that the property of the company was in possession of a mob at Twenty-eighth street, and that we were unable to move our trains or get possession of the switches, and that we desired protection. Mr. Scott called upon him, on the part of the company, for a proper force to protect the property of the company, and to protect the company in the movement of their business.” No destruction of property took place until after five o’clock P. M. of July 21st. It is manifest, therefore, the objection that proper notice was not given, under the Act of 1841, is wdthout foundation. It was further objected that the plaintiffs’ bailees, the Pennsylvania Railroad Company, were guilty of improper conduct, within the meaning of the Act of 1841. The eighth section of that act provides that no “person * * * shall be entitled to the benefit of this act if it shall appear that the destruction of his property was caused by his * * * illegal or improper conduct.” It was contended that by using the words “illegal or improper conduct,” the law makes a distinction between conduct which is actually illegal and that which, although not technically unlawful, may be still improper. Just what is “improper conduct,” within the meaning of the Act of 1841, is a nice question. We are not without rulings in our own state and elsewhere, where similar statutes exist, that may throw some light on the question. In Donoghue v. Philadelphia, supra, Chief Justice Gibson placed his rulings on the legal rights of the owners of the property, and when it was urged that the introduction of armed men into the house, under the excitement existing at the time of the firing upon the mob, was injudicious, he replied, in his charge to the jury: “That it was justifiable' to introduce men and arms into the house as the exercise of a freeman’s privilege, whether there was an apprehension of danger or not; and that if the mob was not fired on until after it had begun the attack, this part of the defence had failed.” To the same effect are the rulings of Mr. Justice Rogers, in The Hermits of St. Augustine v. Philadelphia County, Brightly 116, and St. Michael’s Church v. Philadelphia County, Id. 121. It would seem to be clear that in order to defeat a recovery upon this ground, for property destroyed by a mob, the “improper conduct” must have been the proximate cause of the destruction. “Was caused” is the language of the act. In Lavery v. Philadelphia County, 2 Barr 233, if was said by Mr. Justice Sergeant: “In order to debar a person from the remedy provided by the Act of Assembly of 31st of May 1841, it must be made to appear, in the words of the act, that the destruction of his property -was caused by his illegal or improper conduct.” In the state of New York, the statute reads, that “ no person shall be entitled to recover, if it shall appear upon the trial thereof that such destruction was occasioned or in any manner aided, sanctioned or permitted by the carelessness or negligence of such person.” Ely v. The County of Niagara, 36 N. Y. 167, was decided upon this act. It was an action for the destruction of a dwelling-house. The county, in the court below, offered to prove that the house was a notorious bawdy-house, kept by the plaintiff as such; that it was the resort of prostitutes, thieves, and murderers; that prior to its destruction a policeman of the town was found murdered in front of the house, and that he was so murdered by some one who made the house a resort, and during a drunken debauch therein; that when this fact became known, the citizens were so enraged that in a body they assembled and destroyed the house. The court below rejected the offer, and this ruling was affirmed, both in the Supreme Court and the Court of Appeals, and it was held that the act of the plaintiff, which would prevent her recovery, must be the proximate cause, and the loss the natural and necessary consequence. See also Blodgett v. County of Syracuse, 36 Barb. 526. It has never yet been held that the assertion of a legal right in a legal manner, in pursuit of a legal and ordinary business, was such “improper conduct” as would prevent the owner of property destroyed by a mob, from recovering its value, under the Act of 1841, or similar statutes. It is not pretended that the plaintiffs did any improper act. They were hundreds of miles away, and knew nothing of the destruction of their property until it was accomplished. But it is said they are responsible for the act of the Pennsylvania Railroad Company, their bailees. Conceding this to be so for the purposes of this case, what act of the company was illegal or improper, within the meaning of the statute ? It was said that the mob was fired upon. Granted. But by whom ? Not by the Pennsylvania Railroad Company, but by the military sent there by the governor of the state, in response to a telegram from the sheriff of Allegheny county, asking for troops to assist in quelling the riot. Whether the firing was judicious under the circumstances, we are not called upon to say. It is no part of this case. It is enough for us to know that, whether judicious or otherwise, it was an act for which neither the company nor the plaintiffs are responsible. But it is said the company reduced the wages of their employees, and in the face of the dissatisfaction produced thereby, endeavored to move their trains in opposition to the will of the mob. A more untenable position than this could not well be imagined. Eor some days cars loaded with freight from distant points had been accumulating in the yards at Pittsburgh, by reason of the strike and the refusal of the strikers to allow them to be moved forward to their destination. The result was a blockade, paralyzing the business of the country, upon this, one of its greatest arteries of commerce. In such a vast collection of freight there must haVe been much of a perishable nature. It was the duty, involving a legal responsibility on the part of the company, to forward it. In doing so they were but asserting a legal right and performing a legal duty which they owed to shippers and consignees. Their action was neither illegal nor improper, under the Act of 1841. It was further objected that, “where an insurrection is by reason of its nature and extent beyond the power of the local authorities to anticipate or subdue, a county cannot be held liable for the loss of property destroyed during and in consequence of it.” This proposition is a crystallization of the offers of evidence contained in the fourth and fifth assignments of error. To which may be added the point, pressed upon the argument, that after the appearance of the military of the state upon the scene, in obedience to the order of the executive authority, the responsibility of the county of Allegheny ceased. The word “insurrection,” in this connection, is not applicable. The meaning of it is: “Arising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state; a rebellion ; a revolt:” Worcester. There was nothing of the kind here. It was a mob, and nothing more. It has never been held that the responsibility of a city or county for the violence of a mob depends upon its size or formidable character, or that the failure of the civil authorities to suppress it, or that their calling upon the military authorities for aid relieved them from liability. History furnishes three notable instances which go far to establish the contrary view. The first one to which I refer was the “No Popery” riots of London, in June 1780. This was the most extensive riot of which we have any record. For several days, the mob, numbering sixty thousand persons, had complete control of London. The authorities were paralyzed. The immediate cause of the tumult was the presentation of a petition by Lord George Gordon to Parliament for the repeal of Sir George Saville’s Act for the relief of Catholics. The riot commenced on June 2d, and continued until June 8th. It was not confined to the city of London, but spread throughout the kingdom. The whole city was in a state of anarchy. On the evening of June 6th, thirty-six different fires were raging, caused by the mob. The famous prisons of the Fleet and King’s Bench were fired, and the prisoners released; all the public buildings threatened; many private houses sacked, including that of the chief magistrate of the highest criminal court in the kingdom, Lord Mansfield, whose furniture, pictures, books and papers were all burned. More than four hundred and fifty persons were killed. It was only by the vigorous use of the military power that the mob was finally subdued. The courts of England held that the loss fell within the statute, and the respective hundreds were liable. Another instance is the Philadelphia riots of 1844. Here, again, the civil power was wholly inadequate to suppress the mob, and it was only put down at last by the stern use and display of the military arm. Said the late Judge King, in his charge to the grand jury: “ Our city during these scenes of violence has exhibited the appearance of a town of war, instead of the pacific seat of science and literature, of commerce and the industrial arts.” The amount of property destroyed was large, for all of which, the county was held liable, under the Act of 1841. Later still, we have the draft riots of New York in 1863, when an entire army corps was withdrawn from the front, where it was sorely needed, to .hold in check the rebellious elements of that city. . In numerous cases the Court of Errors and Appeals held the city liable: Newberry v. New York, 1 Sweeney 369; Davidson v. The Mayor, 2 Robinson 230; Darlington v. The Same, 34 N. Y. 164. Some idea of the extent of the damages caused by the mob during this riot, may be inferred from the fact, that upon the argument of the case last cited, counsel representing the plaintiffs in nine hundred and fifty other cases were heard. It may be that the point now under discussion, was not made in any of the suits growing out of the three great riots above referred to. I do not find any trace that it was. In view of the hundreds of cases, of the large interests involved, of the number of eminent counsel employed, not only in England, but in New York, and in this state, the fact that no such point has ever before been made, is persuasive evidence that there is nothing in it. This, however, is not conclusive,'and, in view of the gravity of the issue involved, we will consider it as a new question. The Act of 1841 is both a remedial and penal statute. It is remedial, so far as it provides for compensation to the person whose property has been destroyed, and penal, so far as it throws the burden of that compensation upon the municipality within whose borders the destruction took place. It is but an extension of the ancient English law, which made the inhabitants of the respective hundreds responsible for robberies committed therein. Formerly, as we have seen, a person robbed had his remedy against any inhabitant of the hundred; that is to say, the inhabitants were jointly and severally liable. Then the law was so changed, that damages recovered against an individual could be assessed against ■all the inhabitants, so as to compel contribution. Afterwards it was still further modified so as to give the right of action against the hundred. The principle upon which this legislation rested was .that every political subdivision of the state should be responsible for the public peace and the preservation of private property; and that this end could be best subserved by making each individual member of the community surety for the good behavior of his neighbor and for that of each stranger temporarily sojourning among them. The effect'was to make each citizen a detective, and on the alert to prevent as well as to detect and punish crime. There was no exception in favor of robberies committed by overwhelming numbers, and by such a show of force as to overawe and overpower the limited constabulary of the hundred, or such as were committed by strangers. In either case the hundred was liable to the person robbed, however difficult or impossible it might be for the inhabitants to anticipate or prevent it. It was evidently a police regulation, based upon grounds of public policy, and enforced without regard to the hardships of particular cases. Our Act of 1841 is also a police regulation, and rests upon like grounds of policy. Under our political system the state grants a portion of its sovereignty to certain municipalities. It clothes them with' certain of its powers, and exacts from them in return the performance of certain duties-Among the powers granted is that of maintaining a police force. Among the duties exacted is that of preserving the public peace. There is an implied contract between the state and every municipality, upon which it bestows a portion of its sovereignty, that such municipality shall preserve the public peace, and maintain good order within its borders. The state lends its aid when the local authorities are overborne, and a call for assistance is made in the manner pointed out by law. But it is entirely within the power of the sovereign to make such communities responsible for the preservation of order. The privileges conferred must be taken with such burdens as the law-making power chooses to annex thereto, and where liability for mob violence is imposed without qualification, it is not within the scope of judicial power to write exceptions into the law which the legislature, in its wisdom, has not seen proper to place there. It may seem a harsh rule to hold a community responsible for the effects of mob violence, which apparently, at least, they had no power to prevent; yet not more so than to hold every inhabitant of the English hundred liable for a robbery of which he knew nothing, and had no means of arresting. In both cases it is a police regulation. It is based upon the theory, that, with proper vigilance, the act might and ought to have been prevented. That this is true with mobs, as a general rule, is well known. A mob is always cowardly, and usually of slow growth. It increases in size and courage just in proportion as the authorities evince hesitation or timidity. That this hesitation is often the result of indifference, if not of open sympathy, is unfortunately too true. It is rare that a mob is without a large body of sympathizers at its commencement. This is because its fury is generally directed against an unpopular object. In populous communities, especially in large cities, there are always antagonisms of race, religion, politics or social condition, which enable the demagogue to fan the fires of popular discontent, and incite the disorderly to acts of violence. It is because of this sympathetic feeling that mobs are often enabled to get the mastery, the fact being overlooked tha.t a mob, when once aroused and maddened by success, becomes, like a wild beast, dangerous alike to friend and foe. There is nothing upon the face of this record to show that the Pittsburgh- riots of 1877 were an exception to this rule. We see no evidence of any serious attempt upon the part of the local authorities to suppress it at the time of its commencement. A feeble attempt was made by the sheriff, resulting in the enrolment of some half-dozen deputies. But there was no proclamation calling upon the body of the county to come to-his-assistance, in preserving the public peace. No one doubts at this day that if a proper effort had been made at the proper time, the mob could have been held in check. No one doubts that it would have been, had the citizens of the county realized that they were responsible for the loss. But this Act of Assembly, folded away among the pamphlet laws, was probably forgotten or overlooked, even by those who knew of its existence. In the end, the mob that had defied the military power was put down in the main by the civil authorities, after the citizens had been aroused by a sense of common danger. The law will not tolerate the spectacle of a great city looking on with indifference, while property to the value of millions is being destroyed by a mob. To prevent just such occurrences was one of the objects of the Act of 1841. The fact that the state, when called upon, rendered its assistance, and sent a portion of its military to the scene, did not absolve the county from its implied obligation to preserve the peace, nor from its responsibility for a neglect of that duty. Were it otherwise, it might be to the interest of a municipality to increase the size of the mob. ■ The right of the plaintiffs to recover is further resisted upon the ground, 1. That being .non-residents, they are not entitled to the benefit of the Act of 1841; and 2. That the property having been shipped at Cincinnati for Philadelphia, and destroyed on the cars en route, was not “situate” in the county defendant, within the meaning of the act. The first ground of objection appears to be based upon a mistake of fact. The “history of the case,” furnished by the defendant, asserts that the plaintiffs are citizens of Philadelphia. I notice, however, that in the case of Webb & Son, argued with this, the plaintiffs are citizens of Baltimore, Maryland. As therefore the point must be met in that case, I will dispose of it here. No authority has been cited, nor has any sufficient reason been shown, why the act should not apply to the property of non-residents. It is broad enough in its terms to cover it. “In all cases,” is the language of the statute. There is nothing in the spirit or reason of the act to discriminate against non-residents. The stranger robbed had his remedy against the hundred, as well as if he had been an inhabitant thereof. Our entire system of law, for the protection of person and property, places the citizen and stranger upon the same plane of security. It has never yet said to a mob: You must not touch the property of A., because he is a citizen of the state, but you may work your will upon the property of B., because he is a non-resident. On the contrary, it protects the property of the stranger stopping for a single night at a hotel, so far as he brings it with him, precisely as it protects that of a lifelong citizen. Any other rule would be churlish and inhospitable, and if successfully asserted, would very materially lessen the business of the state, by diverting passengers and freight into channels where a more liberal rule of law prevailed. Was -the property situated within the county ? Strictly speaking, personal property cannot be said to have a situs. It is situated wherever it may happen to be for the time being. This is all that the word means in the Act of Assembly, as applicable to personal property of this, description. The act, as before stated, is remedial as to the sufferer. Similar acts have been invariably so regarded, and have been construed liberally. In Hyde v. Cogan, 2 Doug. 699, which was qne of the cases growing out of the Lord George Gordon riots of 1780, the statute was largely considered, and all the judges, except Lord Mansfield, gave an opinion. Said Willes, J.: “ The sixth clause I l’ather consider as remedial. It may be said to be penal as to the hundred, but is certainly remedial as to the sufferer.” Ashhurst, J.: “ The purpose of this act is remedial, and therefore it ought to receive a liberal construction.” Buller, J.: “ The statute is so penned that the words might possibly admit of two constructions, and therefore it is material to consider whether it is penal or remedial, because there is a well-known difference in the rule of construction, as applied to laws of the one sort and of the other. When they are remedial, the interpretation is to be liberal, so as best to apply to the end. * * * If the clause upon which this case arises (6) is remedial, which I think it is, the most extensive sense must prevail, and it was so held in both cases cited at bar (Radcliffe v. Eden; Wilmot v. Horton). But, independent of authority, as the clause is remedial, it must receive a liberal construction.” It was accordingly held in that case that, under the statute of George 1, commonly called the Riot Act — which made it felony without benefit of clergy for any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the public peace, unlawfully and with force to demolish or- pull down any church or chapel, or any building for religious worship, &c. — if any persons riotously assembled, in part demolish and pull down a dwelling-house, and at the same time destroy goods and furniture in the house, although such goods and furniture were not destroyed by means of the pulling down of the house, the hundred is liable, under the above statute, for the destruction of the furniture, as well as of the house. And in Donoghue v. The City of Philadelphia, supra, an accidental destruction by fire, communicated from a building fired by a mob, was held to be within the act. In Commissioners of Kensington v. The County of Philadelphia, 1 Harris 76, it was held that a municipal corporation is included within the term person or persons, autho rized by the Act of 1841, to bring suit for injury to its property by a mob. Of a similar statute in New York, the Supreme Court of that state, in Schiellein v. Kings County, supra, said: “ The statute must receive a reasonable and liberal construction.” And of our own statute, Justice Rosers said, at Nisi Prius, in The Hermits of St. Augustine v. County of Philadelphia, supra: “ The Act of Assembly has been carefully drawn, and is wise, just and beneficial in its character. * * * If the act is always rigidly enforced when violated, the effect will be found highly beneficial.” It requires no strain to bring the property in question within the letter and spirit of the Act of 1841. On the contrary, it would require a wrenching of the law to hold that the act did not apply. The learned judge was right in rejecting the offers of evidence embraced in the second, third and fourth specifications. It is manifest that if received they would not have amounted to a defence. The offers were also vague, involving conclusions rather than facts. An offer to show that the mob was beyond the control of the civil authorities was' incomplete, in the absence of any' attempt to prove its numbers or size, or that an effort had been made to suppress it. An examination of the bill of exceptions shows that while the learned judge rejected the offers as a whole, he nevertheless allowed the witnesses to proceed, Avith the understanding that they were to be checked, if necessary. In this way the defendants got before the jury a very full history of the riots, Avhieh was not contradicted in its essential features. Upon all the points presented, the law is against the county. The judgment, therefore, must be affirmed.

The opinion of the' Court was delivered by Gibson, J. The decision of the principal question, whether an equitable lien for purchase money, can exist in Penn sylvania, under any circumstances, will render a decision of most of, if not all the other questions raised, unnecessary. I have given this question that deliberate consideration which the great importance of its practical consequences deserves, and the result is a settled conviction, that, with us, such' a' lien does not exist. In England the doctrine is now too firmly established to be questioned, and is said to be borrowed from the civil law. But whatever be its origin, it is certain that the first trace of it in the English law is discoverable in Chapman v. Tanner, 1 Vern. 267, which was decided asíate as 1684, three years after the dáte of the charter to William, Penn; and even there, as appears in Fawell v. Heelis, Amb. 726; the decision was rested on a special agreement that the vendor should detain the title deeds; which therefore presented, not the case of an equitable lien, as now understood, but óf an equitable mortgage. When the-colony Was founded, then, our ancestors could not háve brought this doctrine along with them, for it was ho part of the law of England; and no law, even of positive enactment, subsequently established there, would extend here, unless the colony were expressly named, or the law were adopted in practice. But the whole course of our jurisprudence, with the exception of certain dicta thrown out in two cases decided by this Court, which I shall presently examine, shews that the .doctrine has never been recognised either by the Legislature or by the judiciary, ©r supposed to exist by the profession or the people. The Legislature has uniformly discouraged every other lien or incumbrance than those which arise from transactions which appear of record, and which therefore can prejudice no one who uses proper diligence to ascertain the state of the facts: and even where liens are permitted, it .has been thought that the state of property, as well as the habits of the people, required them to be laid under severe limitations and restrictions. Thus, by act of assembly, a judgment continues alien for but five years, unless within that period, it be revived by scilre facias; and by the acts of 1715 and 1775, no mortgage could affect the land, unless it were recorded within six months from the date. This has, however, been-.altered in some respects by. an act of the last session. But the whole- plainly shews it was thought, the vendor had no other security than the mortgage ; for it yvould be strange if a purchaser from the vendee should hold the land discharged of a mortgage gives . expressly to' secure the purchase money,'and yet hold subject to an equitable lien : and that this might happen; if the doctrine prevailed, is obvious ; for the purchaser might often be affected with notice that the purchase money had not been paid to the original vendor, when he could not be affected with notice of the mortgage; and, in such case, I think it clear, according to 'the English doctrine, that the lien would bold ; for taking a mortgage for the whole purchase money, would not, I apprehend, be construed a waver on the ground on which taking a mortgage for part gives rise to an inference that thé vendee is to hold discharged of the residue ; because by taking a mortgage for the whole, the parties expressly evince an intention,that the land shall be charged with the whole. But however that might be, we cannot intend that latent incumbrances were designed to be tolerated, when we find even those which appear of record, considered in some measure as clogs on the freedom of alienation so congenial to our habits; and find them so guarded by several .Acts of Assembly, as to require, under severe penalties, satisfaction tp be entered wherever the money has been paid. In other cases the Legislature has taken care to provide that the lien shall continue during only a definite period: as in the case of liens on houses for materials furnished, which continue for but two years, unless an action be brought or a claim filed in the prothonotary’s office of the proper county within that time; and of debts of deceased persons, which remain a Ken on their lands, for only seven years after their death, unless they are secured by mortgage, judgment, recognisance,.or other record. So •the lien, of judgments in the Supreme Court is-restrained to lands in the county where the judgment is rendered : and in like manner’the Ken of a testatum execution commences from the delivery of the writ to the Sheriff; who is .to indorse the precise time of receiving it? and whose duty it was, before the Circuit Courts were abolished, to certify the same to the Circuit Court of the proper county. All this shews that the doctrine of lien has never, been encouraged by the Legislature, but has been barely tolerated; and that too, only in particular cases and under severe restrictions. In the practice of our Courts, we look in vain for a recognition of the doctrine, except as far as it may be. thought to be discoverable in the two decisions, to which I have already alluded. But in neither of them did the case present a single feature of equitable lien; which arises only when the legal title has been conveyed. Indeed, on a .bill by the vendor for a specific performance «of the articles, he is said to have a lien, so as to protect him'from the claims of the other specialty creditors ; but this lien becomes operative only after he has conveyed: .as in Charles v. Andrews, 9 Mod. 157. But the name of the lien denotes its nature. It is a bare equity, and the only interest the vendor is supposed to have retained; for while he has the legal title, which will prevail against all the world, before the vendee has paid the purchase money, or done whatever else may be requisite to enable him to call for a conveyancé, he stands in need of nothing more. He has what is better than an equitable lien; he has the 'title itself. Now' I can hardly believe that the case of Stouffer v. Coleman, 1 Yeates, 393, the first of the two in the order of time,'is accurately reported ; for so learned and able a Judge as Chief J.ustice'M‘KEAN after determining that the legal title had not been conveyed, would not have embarrassed himself with questions on which the cause did not turn. ’ Lien was out of the question, as the vendor was not addressing himself to the equitable powers of the'Court, for a-specific execution Of the contract, but had brought an ejectment on the legal title to rescind it. So if the'vendee had sold to a stranger without notice, such stranger would, contrary to what the Court are made to say, have been in no1 better situation, than the vendee himself; for there is no plainer principle, than that the purchaser of an imperfect .title, (and every. equitable title is imperfect,) must abide by the case of the person from whom he buys. Whitfield v. Fausset, 1 Ves. 387. He is therefore bound to take notice at his peril. Neither could the detention of the title deeds add to the plaintiff’s case, when the title itself was not conveyed. The reason why detention of the muniments gives an equity in England, where deeds are not generally registered, and when possession of the title papers is a badge of ownérship, is that the want of .them.is notice to a purchaser from the vendee, that the latter has not cleared scores with the vendor; and therefore the title, though com-' píete at law, is to be considered as incomplete in equity : but that circumstance surely cannot strengthen the case when the title is incomplete even at law, It would seem, in this case Stauffer Coleman, the plaintiff’s case was considered to be a, compound -of legal title, equitable lien, and equitable mort8aS'e ’ an<^ that j1 was sustained on no distinct'pr’rnciple, either of law or of equity. The defendant,.and not the plaintiff as said in the report, was claiming equity, and the manner in. which it was accorded to him for his improvements,.partly by compromise and partly by arbitration, shews the miserable shifts to which .we are sometimes driven by the want of a court of chancery. The other cast- to which I have alluded, is Irvine v. Campbell, 6 Binn. 118; and there the Court undoubtedly made use of an expression favourable to the doctrine ; but that was not the matter decided, for there also, the vendee purchased only an equitable title. The instrument under which the plaintiff claimed, being in the -form of articles of agreement, and containing a covenant for further assurance., was of cpurse executory. 'VYIth great respect for the Judges by whom the cause was decided, I apprehend the question of notice was immaterial ; for á purchaser of aiiy thing less than the legal title, takes it, as I have already said, with all its imperfections on its head ; and in all these circumstances the case differed from the ordinary ,case of un equitable lien, of which, being a mere equity reserved by the vendor, a purchaser of the legal title from the vendee will take the land discharged, unless he can be affected- with notice'. The decision on the point of the case was undoubtedly a sound one; but -however much we may respect what falls from a Court'in illustrating an argument, it can' claim nothing like what is due to the decision of.the precise'point in controversy. These two cases contain every thing oil the subject, that is to be found in pur books of -reports ; and this judicial silence is a strong argument against the- lien, which would necessarily have given rise to much litigation, if it had . been considered to prevail among us. , ; Then as to the sentiments of the profession,;—Ihave never till lately heard a doubt on the subject. ' In fact, the doctrine accorded with neither the professional nor the popular understanding ; nor can I conceive how it ever came to be considered a principle of general equity any where, that a vendor,who has divested himself of every particle of right that can pass by deed, shall nevertheless have an available interest in the land. The implication that there is an inteñtion to reserve a lien for the-purchase money, .in all cases where the parties do not, by express acts,' evince a contrary intention, is in almost every case inconsistent with the truth of the fact, and in all instances, without exception, in contradiction óf the express terms of the contract, which purp'orts to be-a-convpyr ance of every thing that can pass. The construction,- therefore,' which, independently of fraud or .mistake, reserves an interest against the express language of the parties, is unnatural and unjust. Indeed the distinctions taken, both as to the creation of the lien, and those circumstancés- which áre held to be a waver of it, are so purely arbitrary, that the mind is often puzzled to find the reason of them. Thus the assumption, that taking an independent security is. inconsistent with an intention to retain the lien, is merely gratuitous ; for thé parties might in-all reason, just as well be supposed to have intended the security to. he cumulative.' It is inconsistent with natural justice, that a vendor wh’o publishes to the world by the terms of his deed, thát he has parted with his whoie interest, and has trusted to the personal security of the vendee, .should become an object of special protection, against the ■consequences of his own negligence; and that too at the expense of a third person, who, in purchasing from the vendee, ev.en with notice that the purchase money was unpaid., has been guilty of nothing positively immoral or even unconscionable. In practice it is never understood with us, that a lien is reserved ; for it is so entirely technical that none but a lawyer would suspect that it existed. Tell any man, who does not belong to the profession, no matter how intelligent he may be in other respects, that if he conveys his house or farm without taking a judgment .or mortgage, he may nevertheless come on it as a fund in the hands of a subsequent purchaser, and he will disbelieve you. In this country where every man is his own conveyancer, or, at least, where those who draw instruments, are seldom of the profession, a construction contrary to the popular notions, would, in a peculiar degree, defeat the actual intention of the parties, and so-far work injustice. It is surely as important that the habits„and understanding of a whole people should have an influence on the construction of their contracts as those of a particular class; and we all know the influence of the cqurse of trade in determining- the meaning of the parties to a mercantile contract. But if such a lien were adopted, it is impossible to see how it could be enforced, through the medium of common law forms, with convenience .or justice to all or any of the parties. “ It is,” says Story J,, speaking of the equitable lien,- “ so peculiarly and exclusively the creature of a Court -of equity, that its existence cannot /safely be averred independent of the decree of such a Court.” 1 Mason. Rep. 122. A moment’s consideration will shew the justness of this remark. A Court constituted as are those of this State and of Massachusetts, where this kind of incumbrance does riot prevail, (and probably for that very reason,) is destitute of the most essential and indispensable means Of doing complete justice ;• such as the bill 'for. a discovery as to knowledge of circumstances; the answer on oath ; power to bring'every person interested'into Court as a party ; and particularly.that wonderfully plastic and efficient instrument the decree of a Court of chancery, which, adapting itself to the peculiar circumstances of each case however complicated, equally reáches ánd protects the most-remote, and the most immediate interests, and at one operation does complete justice to all. With1 us all these are .wanting, and in their stead we have power to deliver the land itself to the vendor, by an action of ejectment, or possibly to leVy an-executipn on it in the hands of a purchaser from the .yendee ; but how inadequate to the end either of these would be,, must, at once, be obvious. A sale on credit, for at least a part of the purchase money, is in this country the usual mode of disposing of land ; and I understand that during the late rage for speculation, a plantation in Lancaster county, was sold six times in one day; and at each of these sales'there would, according to the English doctrine, have been an equitable lien'. But it would be impossible, in such a case, for a Court in this State, to Settle the equities of the -respective parties. Suppose a recovery by the first vendor against the last' vendee : would the interven- ' ing vendors be squeezed out, or could they, by paying the claim of the first, avail themselves of his rights?-But the rights of the vendor are in this respect peculiar to his person, and cannot be extended to third persons, at least as far as respects marshalling real and personal estate ; and they- would therefore, .probably have to bring actions in succession, as each should happen1 to obtain satisfaction. In like manner if the estate were sold on an execution, there would have to be separate issues to try the right of each claimant to the money, levied. And for what purpose involve the administration of the law in such inextricable embarrassment,? Not to enforce a demand founded innatural equity, but on an artificial presumption of intention, contrary, in almost every r ',r, , , , J J instance, to truth, that the vendee is to be a trustee, ot the estate, for so much of the purchase money as is not paid. It appears to me then, that the equitable lien for purchase money, (if such a lien can with propriety-be .called equitable,) has never been recognised here, either .by the legislative or judicial construction, the--practice .of the profession, or the mass of the citizens; and that as it is highly inconvenient, and by no means essential to the interests of justice, we ought not to adopt it. . ' . There were also questions made below as to the competency of evidence, but the facts and circumstances are so imperfectly stated in the bills of exceptions,-that .the questions do not appear perfectly intelligible, and I therefore refrain from expressing an opinion on them : but on the firsfground, I am of opinion that the judgment be reversed.' Duncan J. This was an action to try the right to money arising from a sale made by the Sheriff of York county, of a tract of land, conveyed by Jacob Bower to Daniel Treichler, and sold as his estate. The defendant in error claimed it on the ground of lien for the unsatisfied purchase money, for which he had taken the bonds of Treichler and one John Smith-, there is a receipt on’the deed for the purchase money, and possession was delivered. This case gives rise to inquiries of very extensive consequences. 1st. Does the British -law of liens, for unsatisfied purchase money, where conveyance- is executed, receipt given, title papers given up, possession delivered, extend to this State. 2d. Does the acceptance of a bond with security, amount to a waver of this lien. 3d. Can such latent equity' prevail against a judgment creditor ; and 4th. On a sale of lands by a Sheriff, deed acknowledged, money in hi's hands, is he bound to apply the proceeds to the discharge of unsatisfied purchase monéy, or to the payment of the-judgment creditors. It is proper in limine to observe, that in deciding this case, it can make no difference whether the issue is directed by the Court, or it is an adverse suit, by the vendor, against the .Sheriff. The sale by this application by the vendor, is validated by- him'. The purchaser at Sheriff’s sale, is not before the Court, nor in the way in which the subject has been considered, has he any interest in the event. The determination of any one of these questions against the defendant in error, would be decisive ; but it is made the duty of this Court, to give their .opinion, on every point taken in the Court below. I will, in considering these points, reverse their order, and begin with the fourth.- Whqt estate is .seized.and sold ? -The estate ority which the <jebtor had, “the purchaser to hold only such estate as the debtor held at and' before, the taking in éxecution.” Here there is a purchaser without' notice, and the lien as to him, is extinct. If there were any specific- lien on record created by deed or will, binding the land, it might be that the Sheriff would be bound to pay them ; there is a Nisi Prius decision to this effect, Nichols v. Postlethwaite, 2 Dall. 131, but I do not go out of my way to. give any opinion on that. But that where one' has conveyed away his estate, given a receipt for the. purchase money, delivered possession,—where a creditor relying on the estate as a fund, has afforded a credit after a long and expensive course of legal proceedings, that such creditor should be intercepted and deprived of the' fruits of his execution by this latent equity, is a novel and alarming doctrine. Let us attend to the consequences.. In the course of twenty years, the estate may have passed through every letter of the alphabet, the intermediate owners dispersed in every quarter.of the almost boundless regions of the United States, their'place of abode unknown,‘or if known, beyond the reach of, reasonable inquiry, every hand through which-it passed might claim some remnant of purchase'itioney. What a scene of confusion would ensue* how are all their claims to be adjusted, the parties brought before the Court., Is there to be one issue^qr twenty four? The creditor has already sufficient difficulties to encounter, add this to them, and you-destroy all credit; consider what, a temptation is opened for fraud. between the vendor and the insolvent debtor, who by connivanee, might keep back the vouchers of payment and after-wards divide the spoil; the latent incumbrance kept in petto until the man possessing every indicia of property, conveyanee with acquittance, and receipt of purchase money, with muniments of title, with possession, on the faith of this ownership, obtains a credit, and just as his creditor is about to feceive his just debt, the covert incumbrance springs upon him, and swallows up all in unsatisfied purchase money. this had been a private sale, could the vendor sue the*purchaser ; what would be his form of action ; - if he has any right in this State, his remedy must be by ejectment, the substitute for a bill in.chancery, which has been from necessity applied to all cases, where one has a lien on lands, for the recovery of which there lies no action at common law, but in chancery only. Our Courts wanting chancery powers, through the medium of a jury, and conditional verdicts, and imposition of equitable terms, nearly accomplish indirectly, what Courts of equity would directly decree. A deposit of deeds, with a written agreement to execute a mortgage ; the depositor is in debt to others ; he gives a judgment on which the lands are sold; money in Sheriff’s hands j deed acknowledged to purchaser ; can the man who holds this pledge, draw the money from the Sheriff? One would be startled at this proposition, yet he has a preferable equity, and overreaches the vendor’s lien on the estate for any part of the unpaid purchase ' money. Sugden,-47S. Is this lien a reprisal on an inquiry « whether the rents, issues, and profits will pay the debts within seven years.” Make the most of this lien. Say that a deed executed holds the same lien, as articles executory. If lands held by articles, are sold by the Sheriff, the purchaser takes subject to the payment of the purchase money,, out of the money raised on the sale; This is not deducted ; the creditor gets the money from the Sheriff and not the vendor ;• his remedy is by ejectment. Irvine et al. v. Campbell, 6 Binn. 118. On a judicial sale under a decree in chancery, where all necessary parties joined in the conveyance, possession is delivered, money paid into bank, b.ut not to be paid over without notice to the purchaser, the tenants were served with awrit of right, or an adverse claim before money paid out of bank, the mo ney must be paid under the decree, and the purchaser cannot object to its application. Sugden, 415. But the question is settled as to a purchaser at Sheriff’s sa^e’ unc*er act f°r recording deeds. He is a purchaser, though a judgment creditor is not, and is protected against an unrecor(ied deed. 2 Binn. 40. It is of some weight that though this kind of claim must have existed in hundreds of cases, this is the first time it has been advanced. This plainly shews the general sense. This action cannot be maintained agaiiist the-Sheriff. Does the equitable lien prevail against judgment creditors ? By several Acts of Assembly, as well as by the common law, a judgment is a lien, binding lands. It continues a lien on real estate, without execution levied, for five years. A judgment here, in many respects, differs from a judgment in ■England, as to its binding effects, and the interest acquired by the creditor, and his power to compel payment by a sale. There is nothing here to distinguish it from a mortgage, except that the mortgage is specific, and the judgment general. In England, a judgment creditor is said to have neither jus in re, nor ad rem.; he has a lien, but non constat, whether he will ever make use of it, for he may recover his debt, by fieri facias, from the goods of cognisor; he may take the body on a capias satisjaciendum, and thus discharge the lien. It is considered in that country, that the judgment creditor does not lend his money on the immediate view of the cognisor’s real estate, 1 P. W. 280,1 P. W. 492, but that does not hold here. For in Colhoun v. Snider, 6 Binn. 135, Judge Yeates, the strenuous and finally successful advocate of the doctrine, that judgments do not bind after purchased lands, relies much on the binding specifically all lands, held by the cognisor at the time of the entry, and that creditors do rely on the real estate always as a fund, and often as the sole fund. It is very common to take a judgment bond as a security, with stay of execution for years. This would be a miserable dependance, if the security was not equal to a mortgage, in all cases except in the one of an unrecorded deed. That depends on the different provisions of the several Acts for recording deeds and mortgages; there is a wide distinction in the effect of not recording mortgages and defeasible deeds and absolute conveyances. The Act of 1715 establishing the office for recording deeds, declares that the first class shall not be sufficient to pass any estate of freehold or unless recorded Within six months; in the second, the recording is only for safe custody, and rendering an exemplifi- ° i t rr , . , . - ■ i i j cation as good and effectual evidence, as the original deed, The Act of 1775, renders the- conveyance, hot recorded within six months, void only as against a subsequent purchaser, or mortgagor, leaving it in full force as to all other purposes. In Jackson v. Dubois, 4 John, 216, it was decided, that a mortgage not recorded has a preference over a subsequent judgment docketted; for the unrecorded-mortgage before the Act, stood upon the footing of any other lien, and the Act only provided that no mortgage, unless duly recorded shall defeat or prejudice the interest of any bona fide purchaser or mortgagee ; but it is not so here, for no estate passed Under the Act of 1715 ; consequently the mortgage gave no lien, unless recorded within the limited time ; and in the New York case, it was held that land sold on a judgment by Sheriff prior to the registry of the mortgage ; the purchaser would hold discharged of the mortgage, and the decision in 2 Binn, 40, does not touch the question of unrecorded mortgages, but refers only to absolute conveyances. We are not left to conjecture on this subject; for the Act of 23d September, 1783, amounts to a legislative declaration ; it provides “that all mortgages executed between 1st of June, 1776, and 11th of June, 1778, which have been recorded, or shall be recorded within six months after the passing of the Act, shall be as good and effectual in law, as if they had been, recorded within the limited time : with this exception, that they shall not operate against any judgment or lien whatever.” The whole policy of our laws evinces the intention of the Legislature, that the notice, by registry should be given of all liens ; but by a late Act, mortgages only take effect from the registry, except in the case of a mortgage given for the purchase money of land, and the time allowed for registering is abridged: it would be absurd, that the security by mortgage should become extinct, if not recorded within six months, and yet the bond should continue the lien for an indefinite time. My opinion is, that a lien by judgment is a legal incumbrance, to be preferred to an implied lien for purchase money. Does the taking of bond with security wave the implied .lien ? It has justly been observed, that the taking of a bond with security, has become so perplexed a question, as to re»v quire a chancery suit to ascertain whether it is waved or not. In New York, in Garson v. Green & al., 1 John, Ch. C. 308, it was held, that taking a negociable instrument from vendee, did not exempt from the lien. In Virginia, while they seem to adopt the English rule of lien, yet the- Courts have settled the question. W here a bond with security has been taken, the lien is thereby waved. Cole v. Scott, 2 Wash, 141, Wilson v. Graham’s executors and devisees, 5 Munf, 297., All the cases, and there are many with shades of difference scarcely perceptible, and impossible to be reconciled, are fully considered by Mr. Justice Story in Gilman v. Brown, 1 Mason, 212, who decides that where there is the security of a third person taken as such, this extinguished the implied lien; and on appeal, the Supreme Court determined that, a collateral security for the purchase money, discharged the implied lien, 4 Wheat. 256. The lien is founded on -a presumed intention. Here there was evidence of a contrary intention, from the nature of the speculation. Bower well knew that Treichler bought with a view to lay out a town on the land, to divide it and sell in small lots; he knew before he executed the conveyance, that others were concerned in the purchase, yet the deed is made to him alone, and when he insisted on Cassel being added as a security, while he made the deed to Treichler alone, the ostensible man, to whom the title was to be trusted, and accepted the bond of Treichler and Smith, this arrangement shews that the land was not to be charged; it is manifest, lien was not in the view of any party. When we turn our eye to that day of infatuation, consider the extravagant price, the rage forlayingout towns, the declared design of the purchaser, which was not to keep the land, but to sell—to sell quickly, before the bubble burst; to sell certainly long before the last instalment became due, it is obvious, that it was not the intention of the parties, to clog it with an incumbrance, which would defeat the whole scheme. In Brown v. Gilman, Story J. observes, it was in the contemplation of the parties, bought on speculation, to be sold out to sub purchasers ; the greát object of speculation would be embarrassed by any latent incumbrance, which by a "subdivision of the property,might be apportioned among an almost infinite number of purchasers. -It was not supposeable that so obvious a consideration was not within the views of the parties, and viewing it, it was difficult to believe, they should mean to create a lien. The same course was adopted on the appeal; taking the security of a third person, it was decided; repelled the lien, standing on that alone. Considering all the circumstances of the case, the large payment in hand, the grand object of the -purchase, the taking Smiths the bond, the subsequent addition of CassePs name, the anxiety of Bower to procure, that name, that Treichler was not able to make up his half of the hand money, and Bower took his own bond for that balance ; the presumed intention to retain a lien, is removed ; the lien is not in its nature conclusive, but prima facie evidence of an intention, which vanishes, when the real state of the facts is disclosed. The Court, in their charge, have gone the full extent of the British decisions, and have considered that as settled, which even there remains most obscure and unsettled, They state in terms, that taking an obligor in addition to the purchaser, was not such an alteration as would of itself defeat the lien. There was error in this ; for ipso facto the taking a bond with security waved'the implied lien. ' I have reserved for the last enquiry, the primary question to the decision of which, many are looking with anxiety, and deep interest; for on its decision, rest numerous claims, to a vast amount, as we are informed, and as I. well know to be the case. Does the rule of implied lien extend tothis State? If it had .been adopted by a settled course of decisions, and the public had acted upon it', and placed reliance on it as' a security ; and men when they bought had been apprised of its existence, and those who- credited- them on the strength of their title, had been put on their guard; it would,’ by the course of dealing and general adoption, become a - settled rule of property, and whatever opinion I might entertain of its inconveniences, I would not disturb it, or unsettle it. But far different is it; for the doctrine is here a novel one lately broached in this State, and I may add lately imported, and directly against the understanding of the country, and the opinion of professional men, and in direct opposition to the policy of our government, which is to leave this .species of property, altogether free to, alienation, unincumbered with secret trusts, or concealed liens. What is the rule contended for? It is, that where an absolute conveyance, with-receipt for. the purchase money is given, and possession delivered, where-the purchase money is hot paid, but bonds given ^"or payment, the vendor- has a lien in equity for the purchase money, against the vendee and his heirs, and against all claiming under them with notice* that it remains unpaid, though there is no agreement for that purpose. The first notice we have of this-supposed lien, is in Stouffer v. Coleman, 1 Yeates, 393. It is a Nisi Prim decision, and but of one Judge, yet it was acquiesced in, and was the opinion of a very eminent Judge, .the late Ch. J. M‘Kean. There a writing had been executed,.conveying by words' of actual grant, but it was called an article of agreement, and looked to a future conveyance of the land, for there was a covenant to convey-at a distant day, by a good and sufficient conveyance. The Ch. Justice considered the case as turning on a short question.' “ Did Stouffer sell and convey, or only agree to sell and convey.” But even considering it an agreement, a difficulty still rested with him, whether the bond taken for the purchase money, did not destroy the lien. To obviate this, he had recourse to the circumstance,' that no receipt was indorsed for the purchase money, and Stoiiffer kept possession of the title' papers. ' No doubt the lien existed, because the ' legal title remained in Stouffer ; but had it been a conveyance executed, no question at that day would have been raised,— no doubt entertained but the lien was gone. It was construed an agreement executory, where the vendor retained the legal title, and consequently held the lien. Fawell v. Heelis, Ambl. 724, December, 1773, the latest decision before the revolution was. recognised as the lfiw of the State. One sells an estate, and takes bond for the purchase.money, the vendor has no lien against the creditors, for whose benefit the estate had been assigned. Lord Apsley, in concluding his opinion, 'says, if the vendor parts -with, his estate, and takes a security for the consideration money, that is no reason for a Court of ■equity to assist him against the creditors of the purchaser. This was the principle of the British Court of Chancery at the time of the revolution. New principles may have since been-adopted there, but here they have not been recognised, nor are they applicable to the state of property, or condition of this country. Irvine et al. v. Campbell, 6 Binn. 118. This case has been misunderstood. There as in Stauffer’s Case, the instrument was denominated an article, of agreement, and contained a covenant, that each party would give to the other, any further instrument of writing agreeable to law, which should be necessary for the security of either. So far from that being an acknowledgment of payment of the purchase money, it appeared on the face of the agreement that it was not due, until after the judgment and sale to Irvine.. The vendee if required, was to give security for it. It was then very properly held, that a vendor had a lien for’ his purchase money; the lien was apparent on the very instrument, and there was á covenant for payment, running with the land. It was a stronger case of lien than Stauffer’s; there was no bond ; other security was contemplated, and it is to be observed in that case, that recourse was not had to the Sheriff, for the proceeds of sale, but to the land by ejectment. And in Colhoun v. Snyder, 6 Binn. 167, Yeates J. states, that if the rule should.be adopted here, that judgments bound after purchased lands, the situation; of a buyer and seller would be most perilous. The seller would not be secure by taking a mortgage far judgment. The estate must necessarily be in the buyer, before he could give a mortgage or judgment, which might become a lien on the property; for eo instanti the conveyance is delivered,'the old judgment attaches. The idea of lien had not entered into the mind of that learned Judge, who spoke from an experience of more than fifty years, ¿on a subject with which he had been particularly conversant j and from the general sense of the community, and as the point is new with us, there is good reason and sound policy in adhering to the common understanding, that the security of the party himself should extinguish the lien on lands, as it-does on personal chattels. 4 Wheat, 296. That the rule itself is not one of general, -but peculiar equity, we have the high authority of the Ch. Justice of the United States; for he cautiously avoided giving an opinion, whether it extended to the State of Georgia We do not mean to decide 1 that question,” was his observation. Our local circumstances ■ in considering questions of this kind are always to be respected. They differ materially from old settled countries, whose lands being improved for ages, the price is not so subject to great fluctuation; it is different here, where lands are treated as a species of merchandise, Colhoun v. Snyder, 6 Binn. 146. The rule of law is caveat emptor, but let the seller take care; it is easy for him to take a mortgage, if he means to hold the land as security; and this is so well understood that the instances are few, where this is intended, that a mortgage is not taken; and where' this is not done, prima facie the vendor, waves all lien, relies on the obligation of the vendee, sometimes alone, at others with the addition of some person, as his security. Where he parts with the title, he takes all risk of payment on himself. In this State the obligation of Bower was not what in the French law is called a privileged obligation, for which he had a lien, on the property sold, to be paid in preference to other creditors, but a common unprivileged obligation without lien, agreement, or covenant binding the land, running with it; the personal security of the obligor. Such likewise is the settled principle in South Carolina, ex parte Wragg, 2 Desaus, Ch. Rep. 509. It was there decided that a vendor sellinglands, and conveying them in fee and taking a bond for the purchase money has no implied lien on the land, so as to give him any preference over the creditors of the purchaser. ‘ This implied lien would impede the transfer of lands, and the settlement of the country; raise up a hew and fruitful stock of litigation, whose branches would cover the land, and entangle the people in endless controversies. Besides without vesting other chancery powers, than our Courts can legally assume, it would be impossible to accommodate the common law jurisdiction and form to the varieties of disputes, which this contentious doctrine would introduce. Indeed many of our positive laws must be repealed to meet it, the whole economy of our laws changed, as regards the payment of the debts of persons deceased, and the division of the estate of insolvent debtors among the creditors. Fora bond for payment of purchase money would come in for payment, out of the land purchased, and held by the deceased, before the many other kinds of debts that precede it under our laws, and such bond might exhaust the most valuable parts of the estate of an insolvent debtor, and leave little for his other creditors. There is no natural equity, in favour of the lien, it does not exist at law, it is not created by usage of the parties or express agreement. But I except all cases of deceit and distinct fraud, where one having direct notice, that the purchase money has not ° .. 7 • 4 ' i t* been paid, for the purpose of defrauding the vendor, obtains a judgment mortgage or conveyance. I would hold all this fraudulent and void, arid that vendor might proceed to judgment, and sale of the land ; fo,r this transaction, though valid between the parties, as- to others, by reason of'cóvin, collusion, or confederacy would be fraudulent, and void. As if a man knowing that a creditor has obtained a judgment, buys the debtor’s goods for a full price to enable him to defeat the creditors, it is fraudulent .and void, Worseley v. De Mattos, 1 Bur. 474. So if a man knowing that an executor is wasting the goods of the testator, and turning them into money, the more easily to run away with it, buys from the executors with that view though fora full, price, it is fraudulent and void, Mead v. Lord Orrery, 3 Atk .235. For nothing can be better established, than that the. laws will set aside, however valuable the consideration may be, every contract which is fraudulently designed to prejudice, and does prejudice others? but the knowledge by a purchased that there was a balance of purchase money remaining due when the vendor had conveyed the legal title, and taken bond for the purchase money, is not of itself such notice as will taint the purchase with fraud, and render the land liable for the purchase money. On the exceptions to the evidence, as there' was no lien, and as no action could be supported against the Sheriff, it follows that all was irrelevant and inadmissible. For these reasons I am of opinion that the judgment ,b¿ reversed. Judgment reversed.

Gibson, C. J. The principal point was determined in Alexan- ■ derv. Kerr, during the last term at Pittsburg, where it was held, that the law implies damage from flooding the ground of another, though it be in the least possible degree, and without actual prejudice; and the same principle was ruled at Sunbury, the term preceding, in a case the name of which is not recollected. But where the law implies the injury, it also implies the lowest damages, except in cases of personal injury, where damages are given, not to compensate, but to punish. Here, however, it is said, the plaintiff undertook to prove special damage, and, therefore, staked his case on the event. But, surely an attempt to prove an injury beyond what the law implies, is not, necessarily, a relinquishment of damages for every thing short of the whole case. Where the plaintiff goes for special damage, he must lay it; else he shall not give evidence of it. But the converse of the rule does, not hold—that having laid it, he must prove it or fail altogether. It would be neither reasonable nor just to compel him to elect between real and nominal damages; or to refuse compensation as far as a substantial cause of action has been proved. The action may be brought to try the right, and the verdict, being conclusive, would stand in the way of a recovery for .a substantial injury, if any were suffered afterwards. If was error, therefore, to charge against the plaintiff’s right to nominal damages. Judgment reversed, and a venire facias de novo awarded.

The opinion of the Court was delivered by . Kennedy, J. The great question presented on the triál of this cause in the court below was, whether the survey, made on the warrant in the name of Robert Ramsey, included the land in dispute or not. If it did, the plaintiff there had no right whatever to recover it from the defendant. On the contrary, if it did not, the title of the plaintiff being prior in date to the defendant’s settlement on the land, and the only title shown from the commonwealth for it, entitled him to the recovery of it. A number of errors have been assigned, but the most of them relate to the instruction which was given by the court to the jury, either in their general charge, or in their answers to points submitted to them by the parties respectively, on the question whether the Ramsey survey included the land in dispute or not. And, excepting on this question, we think that the instruction of the court, and their answers given to the jury, on the points submitted by the parties-, were right. But as regards it, we are of opinion that the court misled the jury, by presenting the evidence given, which tended to show that the survey, made in pursuance of Ramsey’s warrant, embraced the land in controversy, under a different aspect from that in which the law requires that it should be viewed in the case of an ancient survey. Ramsey’s survey having been shown to have been made in July 1774, in pursuance of a warrant granted to him by the commonwealth in, the month of June preceding, must be regarded as an ancient, survey. In 1784 it was returned into the surveyor general’s office; and from that time down to 1837 the .land in question seems,to have been considered and denominated Ramsey’s land by those living’in the vicinity of it; and among the number who so considered it, was, as appears from the evidence, Jacob Marks himself, the warrantee under whom the plaintiff below now claims the land. From the date of the Ramsey survey, the length of time' is three times more than sufficient to raise an absolute and conclusive presumption of law, which cannot be rebutted, that the survey was duly and regularly made by the artist’s having gone on the ground and run and measured the lines of it. But after so great a lapse of time, it is not to be expected that witnesses, who were present at the making of the survey, can be produced to prove its actual location on the ground. Nor ought it to be considered at all extraordinary, that in such a case as the present, no positive and direct testimony has been given by the defendant below of marks having been actually made by the surveyor on. the ground at the time of. his making the survey in 1774. The return .of the survey made into the surveyor general’s office, and a lapse of twenty-one years afterwards, without any attempt being made during that interim to contravene or take exception to it, is conclusive evidence that it was regularly made. And after so great a length of time as ran around in this case, say sixty-four years, circumstantial evidence, tending to show the probability that the survey made under Ramsey’s warrant covered the land in dispute, was sufficient, unless repelled by evidence showing the location of it on other land, and was all that ought to have been required. Now, did not the evidence given on the part of the defendant below show this ? In the first place, it would seem from it that the land in dispute answers, with .reasonable certainty, to the land called for by the description contained in the Ramsey warrant. It lies on the north branch of the Cockalamus. creek, and on both sides of the creek, as mentioned in the warrant. It also lies above Jones’s claim, and includes a large bottom, according to. the call of the warrant, on which the defendant has his dwelling-house and resides with his family. And near to this were seen, some thirty years ago, as testified to by two witnesses, the remains of an ancient small house, which would seem to correspond with Ramsey’s improvement called for in the warrant. In addition to the evidence given, tending to prove all these facts, Mr M’Allister, a surveyor, who made some of the surveys in the neighbourhood of the land in dispute, and adjoining to it, testified that it was called Ramsey’s land for many years back, and that the draft of the survey made and returned in pursuance of Ramsey’s warrant suited the land in dispute; that the waters were correctly laid down on it, and further, that he found a birch tree, a corner, as he supposed or presumed, of the Ramsey survey, but was not certain that it.was the same; though it is evident that he thought it was. Other witnesses also testified that upwards of thirty years before the trial of the cause, they saw the letter R marked twice on a tree near the remains of the ancient house; which they.also spoke of as the initials.of a person’s name, which would answer to the name of Robert Ramsey, the warrantee ; and had, as they said, the appearance of having been made many years before they first saw it. According to the evidence, it also appeared that the. land in dispute had for many years been considered as Ramsey’s land,, and .was so regarded not only by the neighbours around, but likewise by the .deputy surveyors in their locating warrants of subsequent date to Ramsey’s warrant, by avoiding it so as not to include any part of it, and by calling for it as a boundary in the surveys made by them on the adjoining lands. And although some portion of this evidence was mere reputation or hearsay, yet such evidence is entitled to respect in cases of boundary, where the lapse of time is so .great as to render it difficult, .if not impossible, to prove the boundaries by the existence of the primitive land-marks, or other evidence than that of hearsay. And in the present case, taking it in connexion with the other evidence referred to, after a lapse of more than sixty-four years, it was powerful evidence to show that the Ramsey warrant had been located by a survey upon the land in dispute, as no evidence was given, which went to repel it, by showing the slightest degree of probability that it was located elsewhere. But the court below, instead of instructing the jury to this effect, told them that the defendant, “ for the purpose of showing that the land in dispute was in reality the Robert Ramsey survey, had shown subsequent warrants to other persons and surveys upon them, calling for Robert Ramsey’s survey. This in law was not sufficient to constitute one. A survey must have been made upon the ground, to render it effectual. Now, was there an actual survey made on the ground in dispute on the Robert Ramsey warrant? What is the proof? It must come from the party alleging it. John Jones swears positively that twenty-five or thirty years ago old Mr P. Law, a surveyor, Esq. M’Knight and himself went on this very land, and searched for the lines upon the ground, and the result was that they could not find one single line, tree, or corner except the birch spoken of. Mr M’Allister was there in 1815, and he could not find any evidence of any marks, either lines or corners. Now this testimony, as far as we are able to judge, so far from proving a survey made upon this ground, proves the very reverse; that there never was one mark made on the ground on the Ramsey warrant. The other witnesses do not pretend to prove an actual survey. Webster proves that Marks, the warrantee of the plaintiff, showed him what was called the Ramsey line, and wanted to buy his right. This by no means proves of itself that it was the land actually surveyed on the Ramsey warrant; but to give it full force, it only proves that he thought it was. Heiser also proves that he thought the Ramsey survey was there. The opinion of a portion of the neighbourhood, that a tract of wild uncultivated land in the woods lies in a particular place, does not actually locate it there. It must have been surveyed and appropriated by that survey to the particular warrant on which it was made. David Reed says he saw a white oak corner, or a tree that he supposed to be a corner, when he was once hunting, but knows nothing of its age or date, and says positively he never knew a line of the Ramsey survey. James Burchfield saw a tree marked with two R’s, upwards of thirty years ago, and an old line running down the hollow, and up the side of the hill. But if I recollect M’Allister’s testimony, who was a surveyor, he also states, that he found a great deal of blazing, but it did not satisfy him that it was the old survey; and says that he made every reasonable search for the lines of the Ramsey survey on this land, and could not find them. Now, if this testimony be believed by you, it does seem to me that the defendant is mistaken in supposing that.the survey was madepn the land in dispute. The location of this grant, in our opinion, under the facts, is not such as would be likely to lose every line, tree and corner on the survey, so that none could be found thirty years ago, nor since. ' It seems that the whole was.woods up. until the defendant went there in 1838, with his family, after, the plaintiff had located his warrant, and he must have known the, plaintiff’s right had attached, and if he remained he. must meet a lawsuit.” And in the conclusion of the charge, the court, after putting the questions again to the jury, “ Has the land in dispute been surveyed on the Ramsey warrant? Has this been proved to your satisfaction,” say, “ the court have no recollection of any testimony showing this fact to our satisfaction; but as the testimony strikes our mind, the very contrary seems to be pretty fully made out, that no actual survey ever was made on the ground in dispute under the Ramsey warrant.” From the charge of the court thus delivered to the jury, it will be perceived that each circumstance, for instance, the subsequent warrants and surveys made thereon, calling .for the land in dispute as the Ramsey survey, was presented singly to the jury, with the advice of the court, that it did not constitute. a survey. Now, although this was true, yet each circumstance treated in this way by the court, was at least some evidence that the land in dispute was included within the survey under Ramsey’s warrant, which was conclusively proved to have been made by the return thereof made into the surveyor general’s office in March 1784. And again, although each circumstance or fact taken singly might be very slight evidence, and wholly insufficient to produce a conviction in the minds of the jury, that the survey of Ramsey was made on the 'ground in dispute, yet when taken collectively with all . the other, circumstances and facts given in evidence, it might be very sufficient to satisfy the jury beyond all reasonable doubt that the survey was so located. Indeed, the birch corner, of which Jones speaks, and says he saw on the ground thirty years ago, if believed to be a corner of the Ramsey survey, would of itself furnish a beginning point, from which, by the aid of the .compass and chain, with a copy of the draft of the survey, the lines thereof could be easily found on the ground; though no other mark should ever have been made on them; and the survey would nevertheless be good. The testimony of Jones, in regard to this birch being, a corner of the Ramsey survey, was fortified by the testimony of Mr M’Allister, an artist, who says he found a birch corner, which he .supposes or presumes was a corner of the Ramsey survey, but is not certain that it was so. -But such, from what he says, is undoubtedly his belief; and being an artist, his belief, though not firmly fixed on the matter, ought to have weight. And here it may be remarked, that the court below seem to have overlooked this part .of. Mr M’Allister’s testimony altogether, though important, for they have not mentioned it in their charge, but rather notice his evidence as if he had testified to nothing of the kind, but on the contrary had testified that, in his opinion, he could not, after a diligent search, discover a single trace or mark of a survey having been made under the Ramsey warrant on the ground in dispute. The language of the court, as to this, is “William M’Allister was there in 1815, and he could not find any evidence of any marks, either lines or corners.” But the testimony of Mr M’Allister is, “ That first birch I supposed to be a corner, but don’t know that it is the same birch on the land of the defendant. I presume it is the same, but am not certain.” The court also leave out of view the evidence showing that the land called for and described in the warrant, corresponds with reasonable certainty to the land in dispute, and, in short, would not seem to suit any other so well; for although in some respects other land near to the land in dispute might suit the calls of the warrant, yet the land in dispute is the only lánd which seems to meet the description contained in the warrant in every particular; for instance, it is the only land there suiting the calls of the warrant in other respects, upon which any thing like the ancient improvement mentioned in the warrant has ever been seen. According to the evidence, the waters as laid down upon the draft of the Ramsey survey, agree with the waters as found upon the land in dispute. This circumstance, as also others, though of weight, where the question- as to the location of the survey might otherwise be doubtful, seems to have escaped the notice of the court altogether. Seeing the court undertook to refer, in their charge to the jury, to some of the evidence and the circumstances testified to by the witnesses, in relation to the question whether the Ramsey warrant was laid on the land in dispute or not, it would have been right, in order to prevent the jury from being misled, to have brought every thing to their notice which had any bearing upon that question; and to have instructed the jury that they were to decide it, not by taking each circumstance singly into consideration, as they seem to have done in regard to those which they have noticed, and say whether it of itself, excluding all the rest from their view, was sufficient to settle the question the one way or the other; but, by taking all into their consideration at once, and under a combined view of the whole, giving to each circumstance its due weight in connexion with the others, make up their decision on the question. If this had been done, it is not easy to perceive how the jury could have come to any other conclusion on the question, than that the land in dispute was included in the Ramsey survey; for all the evidence given tending to show the location of this survey, pointed to this land, and no other. And, in truth, if the land in dispute cannot be held under the Ramsey warrant, it would seem, from the evidence, to be very clear that no other can. But that the owner of the Ramsey warrant ought to have the land surveyed under it cannot be doubted; and if it be shown with probable certainty that the land in dispute is the same, the defendant below ought to be protected in his possession until called on to give it up to the owner of the Ramsey warrant. Judgment reversed, and a venire facias de novo awarded.

The opinion of the Court was delivered by Kennedy, J. — The point to be decided in this case arises out of the 9th section of the 6th article of the constitution of the State, which is in the following words: “ All officers for term of years shall hold their offices for the terms respectively specified, only on the condition, that they so long behave themselves well; and shall be removed on conviction of misbehaviour in office, or of any infamous crime.” It is very clear that sheriffs, as well as all other officers holding their respective offices for a term of years only, are embraced within this provision of the constitution, so that the respondent, though duly elected and commissioned to the office of sheriff, cannot claim to hold it after he has been convicted of misbehaviour in it, or of any infamous crime. But has he been convicted of either the one or the other of these offences, is the question which remains to be solved. As to misbehaviour in office, it is perfectly manifest that he has not even been charged with, much less convicted of it. But it has been urged, and indeed strenuously, too, on behalf of the commonwealth, that he has been convicted of an infamous crime. That he has been convicted of an offence of great public concern, cannot be denied. For it unquestionably is of vital importance to the best interests of the republic, that the purity and freedom of the election of all its officers should be preserved, and kept free from every species of improper bias or corruption. In order, however, to determine whether the crime, of which the respondent has been convicted, be infamous, within the meaning of the constitution, or not, it becomes necessary to examine and ascertain first, what the framers and makers of it meant by the words “ infamous crime.” For although we may think that the offence of which the defendant has been convicted, is such as ought to disqualify him for holding the office, yet we are not to let our private feelings or sentiments influence or govern us in deciding this point. Instead of submitting to such an influence, it is our bounden duty, after a careful examination of the question, to determine it according to what we believe was intended by the makers of the constitution, which must be regarded as the law on the subject. Before proceeding, however, to ascertain this, it may be proper to observe, that we have no Act of Assembly which goes to render the commission of the respondent void, for or on account of the offence committed by him. Whether, therefore, his commission can be considered void, or he removed from his office by reason of his having committed and been convicted of the offence of bribery in canvassing for it, depends entirely upon the true meaning and import of the words of the constitution in respect to the same. If, upon examination, it shall be found that the words “ infamous crime” have received, in law, a fixed and definite meaning, it will certainly furnish strong, if not conclusive ground, for holding that such must have been the meaning which the makers of the constitution intended should be affixed and given to them. And more especially ought we to come to this conclusion, if it shall be found impracticable to discover and lay down any other rule, by which crimes may be determined with reasonable certainty to be infamous or otherwise. For although an officer may, in a popular sense, be said to have rendered himself infamous by the general tenor of his immoral conduct, without having rendered himself liable to a criminal prosecution and punishment at law, yet it is very clear that the makers of the constitution did not intend that the word “ infamous” should be applied to any officer, so as to cause him to be removed from office, however immoral his conduct may have been, unless he has been guilty of some offence that is made punishable by law; because, by the express terms of the provision, he is not to be removed from office without a previous conviction, which can only be when the offence committed by him is such as is made punishable by law. He may therefore have become infamous in the general estimation of the world, by having rendered himself odious and detestable, which is one of the meanings given by Mr Webster in his dictionary, to the word “ infamous,” without having made himself liable to a prosecution and conviction at law for his misconduct. Indeed he may be so notoriously and entirely destitute of truth, as to be altogether unworthy of credit, even when called to testify on oath, and yet never have been guilty of perjury, or any other indictable offence. In short, there are also many evil practices of which a man may be guilty, beside that of lying, which may be said to lie at the root of almost all moral obliquity, for w'hich he cannot be indicted or punished by law, and yet they are sufficient to render him infamous in the estimation of the more intelligent and virtuous portion of the community. They are so numerous, it would be difficult to enumerate them all; and at the same time so various, that there might probably be some diversity of opinion whether they ought to be regarded as attaching infamy to the person. But since, according to the express terms of the provision in the constitution, it is only on conviction of the officer, either of misbehaviour in his office, or of some infamous crime, that it is declared he shall be removed from his office, it would, therefore, seem as if the makers of the constitution intended that the law, in force for the time being, should determine whether the crime was infamous or not. If this had not been intended, it is reasonable to conclude that they would have given some explanation of what they meant by the term “ infamous;” but not having done this, we are left to infer, very fairly, that they intended to use it in its legal acceptation, which Was séttled and known, and therefore rendered all explanation unnecessary. Besides, the words “ infamous crime” are properly a legal phrase, and are therefore to be taken in their legal sense, unless from the context it appeared that such was not the intention, which cannot even be pretended to be the case here; but the contrary would seem to be most clearly indicated by the use of the word conviction. It becomes necessary, now, to ascertain the legal import of this phrase. Mr Webster, who, in his Dictionary, adopts the meaning given by the Encyclopedia to the word “infamy,” says, “in law,” it means “ that loss of character, or public disgrace which a convict incurs, and by which he is rendered incapable of being a witness ox juror.” And accordingly, in Tomlin's Law Dictionary, in explaining the same term, it is laid down that infamy extends to forgery, perjury, gross cheats, &c., and disables a man to be a witness or juror. It has unquestionably been clearly settled, that the conviction of a person of an infamous crime, renders him incompetent to be a witness thereafter; but the conviction of a crime, considered not infamous at common law, has never been held, unless by statute, sufficient to disable him from being a witness. See Co. Lit. 6 b; Com. Dig. Tit. Testimony, A. 3, 4; Clancey’s Case, (Fortescue’s Rep. 208); Baring v. Shippen, (2 Binn. 165); 1 Phill. Ev. 24, 25 ; Bushel v. Barrett, (Ry. Moo. 434); S. C. 21 Eng. Com. Law 483. The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi — such as forgery, perjury, subornation of perjury, attaint of false verdict, and other k offences of the like description, which involve the charge of falsehood, and affect the public administration of justice. 2 Hale P. C. 277; Com. Dig. Tit. Testm. A. 3,4; Co. Lit. 6 b; 1 Phill. Ev. 20, 21, 22; 2 Russell on Chimes, 502, 503. So bribery, taken in a somewhat restricted sense, may be regarded as an infamous offence; and for that reason, renders the party convicted of the same, an incompetent witness; as, for instance, in the case of receiving or offering any undue reward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honour and honesty. 1 Hawk. P. C. cap. 67, sec, 2; 3 Inst, 145; 4 Bl. Com. 139; .1 Russell on Crimes 156. Though in Clancey’s Case, (Foi'tescue’s Rep. 208), where, after great deliberation, a conviction of bribing a witness to absent himself and not give evidence, was held to be an infamous offence by seven of the Judges, and for that reason rendered the party incapable of giving evidence, that great and distinguished Judge, Lord Holt, then Chief Justice of the King’s Bench, doubted the propriety of the decision. The ground of the decision in Clancey’s Case was, that the purpose of the bribery was to obstruct and pervert the administration of public justice, by preventing the truth from being made known. The same ground was adopted in a late case of Bushell v. Barrett, (Ry. § Moo. 434); S. C. 21 Eng. Com. Law 483. In this latter case, the objection to the witness was, that he had been convicted of a conspiracy to bribe a person, summoned as a witness, (on' an information against the revenue laws), not to appear before the justices of the peace, who were to investigate the matter and decide on it; and held by the court, according to the principles of Clancey’s Case, that he was rendered incompetent by the conviction. And it is perfectly clear, from what the court say in this latter case, .as also in the case of Clancey, that it was not because the party had been convicted of bribery or a conspiracy to bribe,. that he was rendered infamous, and therefore incompetent to give evidence; but because he had become so, on account of the object that was intended to be effected by means of the bribery, which was that of obstructing and perverting the administration of public justice. But corrupt and illegal practices in giving rewards or making promises, in order to procure votes in thé elections of members to serve in Parliament, although in a more extended sense denominated bribery, and punishable at common law, (Rex v. Pitt, 3 Burr. 1335, per Lord Mansfield), have never been held to render persons, convicted thereof, infamous or incapable of giving evidence or serving as jurors. Indeed, I think I may say, it has never occurred to any one to make the objection as founded upon the principles of the common law; which, of itself alone, is very powerful, if not conclusive evidence, to show that such corrupt and illegal practices were never considered infamous crimes. Statutes, however, have been passed in England, as also in some of the United States, rendering persons, convicted of bribery at elections, incapable of holding thereafter any office or franchise, or of voting at the same. See 1 Russell on Crimes, 156, and note A, (Philad. edit. 1836). The passage of these statutes also furnishes strong evidence that a conviction at common law, in such cases, did not work any disqualification to hold office or give evidence; otherwise the passage of them would have been unnecessary. But it has been said, by the counsel for the commonwealth, that it properly belongs to the Governor to settle and decide the question that is presented here; that he has already determined that the defendant, by reason of his conviction, is no longer entitled to hold the office of sheriff; and that the decision of the Governor, thus made, is binding and conclusive upon this court. It would seem that the Governor did entertain the opinion that the defendant had become incapable of holding the office; but whether for the same cause that is now assigned on the part of the commonwealth, may be questionable, because we have before us a copy of what is called a supersedeas, issued by him, bearing date the 18th of April 1842, directed to the defendant, wherein, after reciting that the defendant had been duly commissioned.sheriff of the county of Huntingdon, and that he, afterwards, had been convicted at January sessions 1842, of the Court of Quarter Sessions of said county, of a misdemeanour, and sentenced by the said court on the 16th of April 1842, only two days anterior to the issuing of the supersedeas, to pay a fine of #100 and to undergo an imprisonment for one month in the jail of said county, the Governor declares, that for the cause thus stated, it fully appears to him that the defendant had not behaved himself well in the said office, and therefore ought not any longer to exercise the said office of sheriff conferred upon him; and then he (the Governor) thereby revokes, annuls, and supersedes the defendant’s commission of sheriffalty. Now it is very apparent, from the face of the supersedeas, that the Governor had been given to understand, in some way or other, that the defendant had been convicted of misbehaviour in office; for he says expressly, that it appeared fully to him, from the conviction, which he recites as being of a misdemeanour, that the defendant had not behaved himself well in his said office of sheriff. Whereas it appears plainly, from the exemplification of the record produced here, of the only conviction that is alleged to have taken place against the defendant, that it was not for misbehaviour in office, or anything of the sort, but for bribing an elector to vote for him as a candidate for the sheriff’s office, before he obtained it. Hence I am inclined to believe, that the Governor could not have derived his information of the conviction, upon which he acted, from a regularly certified copy of the record thereof, which ought to have been furnished to him, or otherwise he would not have fallen into such an error, it being one of fact simply, which required no legal knowledge or acumen in order to guard against it. Then, supposing it was a matter upon which he was authorized to pass conclusively, it would appear that he decided upon a case altogether different from that which is presented to us; and it would seem to have been one, too, which never existed; and therefore cannot be considered as having any effect upon the present. But the Governor’s action in the case cannot be said to partake, properly speaking, of a judicial character; for it was ex parte, without any previous notice whatever to the defendant; and it would therefore be unreasonable in the extreme, to regard it as conclusively binding upon the rights of the defendant. Beside, I am not satisfied that the Governor has any power to issue any other species of supersedeas, when a vacancy takes place in the sheriff’s office, than that of a new commission to fill it until the next general election ; which he is authorized to do by the first section of the sixth article of the constitution. This, at least, I think, may be considered as the only supersedeas which he is expressly authorized to issue by the constitution. The argument that the defendant’s confinement, under the sentence of the court, which followed his conviction, rendered it impracticable for him to execute the duties of his office in person, and therefore he ought to be con sidered as virtually removed from it, does not seem to merit notice; for, as well might the same effect be said to have been produced, if his confinement had been caused by sickness. In either case, all the duties that could not be performed by him personally, he would have discharged by his deputy. Nor is the argument that the defendant could not have the charge of the jail of the county, while he was himself a prisoner in it, seeing this would have been leaving it to his own will to have his sentence carried into effect or not, as he pleased, entitled to any greater respect; because it was altogether feasible for the coroner, who had the defendant in charge, to have an exclusive control over part of the jail for that purpose; or, if the building used as a jail, in the county, would not admit of that, he could, as it would have been his duty, have procured an apartment in another building, or the whole of another building, if requisite, for the purpose of confining the defendant in it. For the jail in a county does not, of necessity, consist of one entire building alone; two, or more, may be obtained and occupied for that purpose, whenever the exigency of circumstances, whether accidental or otherwise, shall render it necessary. Judgment is, therefore, rendered for the defendant, and that he recover his costs of Jacob Africa, the relator. Judgment for the defendant.

Opinion by Keller, J., Appellant, an undertaker, presented a claim at the audit of decedent’s estate for $937.80, for funeral casket and supplies, services and expenses, in connection with her burial. The orphans’ court found that the bill was excessive and allowed $600. The bill was not ordered or incurred by the executor of decedent’s will nor by the residuary or other legatees. Appellant received his instructions from a niece, Sister Angelique, and a friend or distant cousin, Mrs. McCormick. He made no inquiry as to who were the legal representatives of decedent or who was pecuni-arily interested in the estate. During the four years just preceding he had conducted the funerals of four of decedent’s nearest relatives, her mother, brother, and two sisters, and decedent had personally made the arrangements for the funeral and selected the casket for her sister Annie only six months before her own death, and in none of them was the charge one-half of the present bill. Claimant himself had thought the casket selected was too expensive but had given in to Sister Angelique’s instructions to furnish whatever Mrs. McCormick would select. It was the most expensive funeral he had ever conducted in an experience of twenty-two years. There was testimony of several other undertakers that the prices charged for the casket and materials furnished were fair and reasonable and the prevailing market prices, but that does not fully meet the issue. It was for the court to determine from all the circumstances in the case, the situation in life of the decedent, the size of the estate, etc., whether it was reasonable to provide such an expensive burial. Where an undertaker contracts with the executor of a decedent’s will, he may, ordinarily, hold such person liable for the amount of his bill, and the responsibility for the reasonableness of the charges is transferred to the legal representative who must satisfy the parties interested in the estate and the court in that respect; but where he proceeds at the direction of one without authority to contract for and bind the estate, the law implies a contract on behalf of an executor having assets sufficient for the purpose only to the extent of a funeral suitable to the station in life of the decedent as well as not disproportionate to the size of the estate; in other words, reasonable under all the circumstances : Cullen’s Est., 8 Pa. Superior Ct. 494; Sinnott’s Est., 15 Dist. R. 873; Bauman’s Est., 5 Pa. C. C. 579; Taylor’s Est., 3 Dist. R. 691. The decedent, before ceasing active work, had been a domestic for many years and had accumulated by her thrift, and from the estates of her deceased sisters, a fortune of about $22,000. Nothing in her will or during her life showed any desire on her part for an ostentatious display at her funeral and her arrangements for her sisters’ funerals negatived any such idea-. Had appellant submitted his claim to a jury and been awarded $600, this court would not have interfered with the verdict. The action of the auditing judge on such a question of fact, approved by the court in banc, is entitled to equal weight: Coulston’s Est., 161 Pa. 151. We are not satisfied that any reversible error was committed in the circumstances, and the decree of the orphan’s court is affirmed at the costs of the appellant.

Opinion by Mr. Justice Mitchell, By the act of June 9,1891, P. L, 257, the granting of licenses to wholesale dealers, brewers, distillers, etc. of spirituous, vinous or malt liquors, is assimilated to a certain extent to licensing of retailers, and is put within the discretion of the court of quarter sessions. This discretion, as we have frequently said is a judicial discretion, to be exercised for legal reasons and in a judicial manner. When so exercised it is not reviewable. It has been held accordingly that the applicant is entitled to a hearing, and a decision based on the evidence: Johnson’s License, 156 Pa. 322; Gross’ License, 161 Pa. 344 ; though the court’s personal knowledge of certain facts such as the fitness of the applicant, etc. is a legitimate part of the case before it: Mead’s License, 161 Pa. 375. In Gross’ License, supra, the rules appli cable to the subject were very clearly and comprehensively stated by our brother Dean, and may be briefly summarized as three in number, viz, that there must be a judicial hearing, that a refusal must be for a legal reason, and that where these two points appear, this court will not assume to discuss the correctness of the result reached by the court below. In the present case there was a hearing and a refusal of a license for the reason, expressed of record, that it was “ unnecessary for the accommodation of the public.” We are of opinion that this was not a legal and valid reason. The petition was for a distiller’s license, and section four of the act of 1891, which prescribes the requirements which the applicant shall set out in his petition, includes in its fifth item “ that the place to be licensed is necessary for the accommodation of the public,” but a proviso immediately adds that this requirement “shall not apply to a brewer, or distiller.” It is said in the opinion of the court below which was affirmed in the Am. Brewing Co.’s License, 161 Pa. 378, that “it seems reasonable that the court should not have the same kind and extent of discretion in all kinds of licenses, and that the discretion should be greatest in the eases of hotels and restaurants whose principal trade is to sell liquor by the-drink to the consumer and least in those of distillers who are manufacturers and farthest removed from the consumer.” And it had been said before by this court in Pollard’s Petition, 127 Pa. 507, 521, which arose under the act of 1887, that a wholesale license “ is not granted for the convenience of a particular neighborhood, nor does it matter where the place of business is located. . . . The power to close up large establishments such as breweries, distilleries and wholesale liquor houses, when perhaps hundreds of thousands of dollars are invested therein, is too vast to be exercised by any man or court excepting on the clearest grant of legislative authority.” Such grant has, since that decision, been clearly made by the act of 1891 in the case of wholesale dealers, but this particular requirement as to the accommodation of the public has been expressly omitted with regard to brewers and distillers. It is true that section six of the act, in prescribing the mode of proceeding by the court upon hearing petitions in favor and remonstrances against the applications, gives a discretion to refuse “ whenever such license is not necessaiy, for the accommodation of the public, or the applicant is not a fit person,” etc., yet as this section is general and prescribes the method for hearing and deciding all applications of every kind under the act, it must be read as to each kind with reference to the requirements for that kind only, reddendo singula singulis. Thus the judgment of the court as to the personal fitness of the applicant involves considerations of residence, citizenship, interest in other places where liquor is made or sold, conduct in regard to previous license, etc. applying equally to all kinds of licenses asked for. But the consideration of public accommodation applies only to those licenses of which it is a requirement, and among these a distiller is not included. To include him would be to nullify indirectly the express exemption in section four, and to do so most unjustly to the applicant by authorizing a refusal of a license upon a ground that he was expressly relieved from setting forth in his petition, and was nowhere directly or by reasonable implication required to prove. We are of opinion therefore that the only reason assigned for a refusal of the license was not a valid reason under the statute in the case of a distiller, and unless there is other ground for refusing it, which does not appear, the license should be granted. Judgment reversed and procedendo awarded.

Opinion by Mr. Justice Simpson, Plaintiff recovered a verdict and judgment for the value of its property taken under the right of eminent domain. The property is situated within the lines of the improvement referred to in our opinion in Philadelphia Parkway, 250 Pa. 257. Defendant appeals. At the trial defendant called two real estate men as expert witnesses. They were objected to on the ground that they had been previously employed by plaintiff in relation to the same matter, had made reports to plaintiff, and had not been released from that employment. On being examined preliminarily, they testified that they had been subpoenaed by the city, but objected to testifying for her because of their employment by and report to plaintiff, from which employment they had not been released. It appeared from the offers of proof that the reason plaintiff had not called them, and why defendant wished to do so, was because their estimates of damage-were below that fixed by plaintiff’s other witnesses, and were more nearly in accord with the damages as testified to by defendant’s witnesses. The court below sustained the objection “on the ground that the witness still maintains a confidential relation” with plaintiff. We think it unnecessary to decide whether or not the reason for sustaining the objection is a sound one, in view of the fact that the witnesses themselves objected to being required to testify as experts. The process of the courts may always be invoked to require witnesses to appear and testify to any facts within their knowledge; but no private litigant has a right to ask them to go beyond that. The State or the United States may call upon her citizens to testify as experts in matters affecting the common weal, but that is because of the duty which the citizen owes to his goyernment, and is an exercise of its sovereign power. So, also, where the State or the United States, in her sovereign capacity, charges the citizen with crime, she may, if need be, lend her power in that regard to the accused, for she is vitally interested, as such sovereign, that public justice shall be vindicated within her borders. Perhaps, under like circumstances, she may also lend her power in civil cases. But the private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things. In each case it is a matter of bargain, which, as ever, it takes two to make, and to make unconstrained. If it be true, as suggested at the argument, that one or both of the witnesses was under some obligation to the city in this matter, such witness would be liable for his breach of contract, as in other cases. The 1st, 2d, 3d and 4th assignments of error are overruled. The fifth assignment alleges error in charging the jury as follows: “In addition to that the plaintiff would be entitled under the Act of June 1, 19Í5, P. L. 685, to six per cent, interest upon that value from 1906 to the present time.” This act (P. L. 685) provides “That in all cases where private property is taken, injured or destroyed by municipal corporations invested with the privilege of taking private property for public use, the damages caused by such taking, injury or destruction shall bear interest, at the rate of six per centum per annum, from the date of such taking, injury or destruction thereof.” Defendant alleges that said act is unconstitutional for several reasons, only one of which need be considered. Art. Ill, Sec. 7, of the Constitution of the State, provides that “the general assembly shall not pass any local or special law......fixing the rate of interest.” That the Act of 1915 is special follows from the fact that it applies to municipalities only, and not to all public and quasi-public corporations invested with the power of eminent domain. That it fixes the rate of interest, quoad property taken, injured or destroyed by municipalities, is evident from the reading of it. Plaintiff, however, in answer to this conclusion, invokes the right of the legislature to classify the subjects of legislation, and to legislate for each class separately, wheresoever real distinctions exist between the classes; and points to the fact that municipalities have the right to plot streets over private property, without then taking it, and if thereafter they do take it, they will be liable only for the improvements which were on it at the time of the plotting. Unquestionably that is a real distinction between municipalities, in the matter of plotting streets, and other corporations invested with the power of eminent domain. Unhappily for plaintiff, however, the distinction is not made by the Act of 1915. It applies to municipalities taking land for all purposes, not merely for the location of streets; and it applies not to the location, but only “from the date of the taking, injury or destruction,” a matter necessarily applicable in every case of eminent domain. We must hold, therefore, the alleged distinction is not a real one, the above-quoted provision of the Constitution applies, and the act is unconstitutional. It is not necessary to consider the other assignments of error, but in order to prevent an abuse of our deci-. sions, particularly that in the Parkway Case, supra, we deem it wise to add a further word in regard to the damages allowable for delay. Damages mean just what the word implies, and no more. . If, therefore, they are claimed from a time during all or a portion of which plaintiff is actually deriving an income from the property, the damages he would otherwise be entitled to receive must necessarily be reduced by the amount of the net income, as of the date that net income was received. Under like circumstances, if plaintiff occupies the property, the damages must be reduced by the amount of the net rental valúe thereof during such period. The fifth assignment of error is sustained, the judgment is reversed, and a venire facias de novo awarded.

Opinion by MM Chief Justice Moschzisker, Joe Gairt, claimant and appellee, on October 10,1919, presented a petition to the Workmen’s Compensation Board to reinstate a compensation agreement, which had been entered into May 4, 1917, between him, the Curry Coal Mining Company, defendant, and the ¿Etna Life Insurance Company, insurance carrier (intervenor), for injuries which Gairt had sustained, on March 10, 1917, while in the course of his employment as a coal miner for defendant. On July 29, 1918, the compensation authorities made an order that the agreement of May 4,1917, should “terminate,” for “total disability,” as of July 9, 1918, and that further compensation, “to be determined after claimant has returned to work and his loss of earning power has been established,” should be paid for “partial disability.” Payments ceased as of July 9, 1918. Between December 2,1918, and March 24,1919, three separate petitions were presented by Gairt, asking for review and modifications, all of which were refused. On August 24, 1920, the board, acting on the petition of October 10, 1919, first above mentioned, found that claimant was totally and permanently disabled; and it made an order reinstating the compensation agreement as of July 9, 1918. This was affirmed by the common pleas; and thereupon defendant and the insurance carrier appealed. Appellants contend that the compensation authorities were without jurisdiction to make the order now before us, because claimant’s right to receive compensation covering the period since July 9, 1918, was finally adjudicated against him by the refusal of the three prior petitions, and the board’s power to act in that regard was exhausted. As to this, the court below held that the original order, stopping payments to claimant, “clearly left open,” to be fixed at a subsequent date, “the payments to be made on account of the injury, the amount of these payments to be determined on a later investigation”; adding: “The last investigation satisfied the board, on the question of fact, that the claimant had never been able to resume [his normal] work......and it made, inter alia, the following findings of fact, amply supported by testimony: ‘These injuries are permanent, and have rendered him unfit for the occupation in which he was engaged at the time of the injury, namely, that of a miner......Claimant made a real effort to work, but was unable to do so, frequently being compelled to move about on his hands and knees because of the pain and inconvenience suffered in his efforts to comply with the referee’s order......[He] has demonstrated in his efforts, as well as by the medical testimony taken in these proceedings, that he is totally and permanently disabled.’ [Again it may be said], the questions as to the extent of the injury, and the extent of its interference with the ability of the claimant to labor, were clearly left open by the order and decree of July 29, 1918, and the investigation subsequently made satisfied the board that the injury resulted in total disability......The referee, in the first instance, very properly undertook to relieve the defendant from the obligation to pay until the exact status of the claimant could be determined ......, [and]......the testimony in the proceedings [for review and modification] did not develop what the present testimony clearly reveals.” We quite agree with the conclusion reached by the compensation board and affirmed by the learned court below; and, since the chairman of the former, in his opinion filed in this case, so correctly states the law, we quote therefrom as follows: “The act gives to the board jurisdiction over an agreement [for purposes of review] at any time during the life of the agreement, or during the period of time [it has] to run. A disability agree ment contemplates a total payment of compensation to the claimant for a period of 500 weeks. If, for any good cause......, by action of the board, the employer is relieved of payment of compensation, at any time during that period, such action is entirely to the benefit of the employer, and he cannot complain if, subsequently, during the 500 weeks, a changed status of the claimant revives the employer’s liability to pay compensation. When the referee made his order [stopping payments], the use of the word ‘terminate’ was unfortunate, as it [likewise] was, in the original act. It was beyond the power of the referee to find that total disability had so absolutely ceased that there could be no further liability on the part of the employer to pay the injured man on that basis. All the referee could [properly] find, as a fact, under the medical testimony at the time, was that the malignant features of total disability had disappeared; he could not find, nor could any human being know, that, at some time in the future, within the running of the agreement as contemplated by the law, there would not be a recurrence of total disability (as there has been in this case). When a workman is injured and a compensation agreement is entered into, it is within the minds of the parties, or at least the law imputes the intention to the parties, that such agreement may run 500 weeks, if the injury develops total disability for that length of time; so that, when the board, either of itself, or by one of its referees, relieves the employer of such payment, it merely suspends that payment or that obligation, waiting further developments of injuries. The legislature recognized this fact when it included in the amended law (see section 413, Act of June 2,1919, P. L. 642, 661) the word ‘suspend.’ Many times previous to that amendment the board had made suspensory orders to relieve an employer from present payment, but preserving at the same time the right of payment to the injured man, should there be a recurrence of disability.” As said in the matter quoted above, the first order, stopping payments, merely suspended the obligation to pay, and during the period indicated, it was within the power of the compensation authorities to revise their order, to accord with the requirements of the case as the facts might demand. The fundamental error of appellants lies in their idea that a proceeding under the Workmen’s Compensation Law is “litigation,” and that established rules and principles of common law practice should be applied thereto ; whereas the fact is quite the contrary. Although the arrangement inaugurated by the Act of June 2, 1915, P. L. 735, to pay standardized compensation in cases of injury or death, rests on the theory of contract between employer and employee (Anderson v. Carnegie Steel Co., 255 Pa. 33, 39, 40), yet, in administering this plan, those vested with authority act for the State, in its capacity of parens patriae, and the relevant legislation clearly contemplates that, after a compensation agreement has been filed, or an order for compensation made, persons affected may apply for review and modification during the time the agreement or order has to run: Article IV, section 423, Act of 1915; article IV, section 408, and particularly article IV, section 413, Act of 1919; Hughes v. American Int. S. S. Corp., 270 Pa. 27, 30; also see Kuca v. Lehigh V. C. Co., 268 Pa. 163, 166, holding that procedural párts of the Act of 1919 apply to pending cases. Under this benevolent piece of legislation, one in the position of the present claimant may, from time to time, come to those in authority saying, “Since you stopped payments to me, facts have developed which show my need of, and right to, compensation; I pray you to look into these facts and determine what, if anything, I am now entitled to receive”; and that, in substance, is what the present claimant did. We need refer to but one remaining point suggested by appellant: While the board makes reference to the fact that it had not been demonstrated whether or not claimant bad capacity to do work other than as a miner, since no different position bad been given him by defendant, yet, as shown by the quotations hereinbefore recited from the opinions of the board and court below, the conclusions of neither of those tribunals depend on the circumstance that defendant had failed to place claimant at different work, but upon other facts which prove him to be totally and permanently disabled. The assignments of error are overruled and the judgment is affirmed.

Opinion by Mr. Justice Kephart, This appeal is from the dismissal of a claim under the Workmen’s Compensation Act of 1915, P. L. 736. Deceased was regularly employed by the Tavlor-McCoy Coal & Coke Company as a “coke drawer,” on a contract basis, rated by the number of cars loaded. Coke was drawn from ovens and loaded into cars, and each employee had a certain number of ovens to draw. Frequently, after their regular work was finished, the employees would be directed to aid in firing other ovens during the day. For this work extra wages, by the hour, were paid, but only for the time engaged in the actual work. Deceased was instructed, on the day of the accident, to perform this extra work, and, after his regular work was finished, he left for home to get something to eat, intending to return. In going home, he used the path customarily taken by the employees, which ran through the property of defendant, that of another coal company and over a bridge. While passing through the adjacent property, he was struck by.a dinkey engine and instantly killed. His wife’s claim for compensation was granted by the referee, but refused by the board and the court below. Our act bases recovery of compensation on an injury in the course of employment. Article III, sec. 301, reads: “The term Injury by an accident in the course of his employment,’ as used in this article......shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere.” The question for us to determine is whether the deceased was killed in the course of employment or when actually engaged in furthering the business of the employer while off the premises. The act specifically requires an employee to be actually so engaged if he is injured while off the employer’s premises : Maguire v. James Lees & Sons Co., 273 Pa. 85. The term “course of employment” has a necessary relation to the fact of employment while on the premises and a still closer relation to the fact of employment when an injury occurs off the premises. In the latter case, the employee must be actually engaged in his master’s business. Our prior decisions show that, in each instance where compensation was allowed for accidental injuries, occurring off the premises, the facts warranted the conclusion that the employee sustained his injuries while actually engaged in the performance of some as yet incompleted business of his employer. See cases in Maguire v. James Lees & Sons Co., supra. For illustration, see Haddock v. Edgewater Steel Co., 263 Pa. 120, where an employee had a report of an investigation, made in a city some distance away, to submit to the employer, and returned too late at night to communicate it. While on the way to his home he was injured, and it was held that his work continued during the journey home. As illustrating the opposite situation, in Stahl v. Watson Coal Co., 268 Pa. 452, an employee, having no regular working hours, but subject to call at any time, was engaged from six to three. He then started for home. His body was found on the property but not the premises of his employer. Held, that when he left for home, though subject to immediate recall, the accident did not happen when he was actually engaged in the master’s affairs or in the course of employment. The word “premises” as used in the act, has a narrower meaning than the word “property.” “Premises” includes the land where the business in which the employee is engaged, is actually carried on. “Course of employment” does not cover all the time during the day; it does not extend to intervals of time between regular working hours, nor to the interval between the regular working hours and a new, additional, or different work to be undertaken at another period of time, in which intervals the employee leaves the premises. We do not pass on the question which might arise where the employee remains on the premises. The term “course of employment” does include the intervals of time for leisure interspersed in regular working hours for rest or refreshment on the premises (Dzikowska v. Superior Steel Co., 259 Pa. 578), or to minister to personal comfort or relieve nature (Ferri v. Lenni Quarry Co., 266 Pa. 264); but it does not cover the time going to or from work after or before regular or extra working hours: Maguire v. James Lees & Sons, supra; Shickley v. Philadelphia & Reading Coal & Iron Co., 274 Pa. 360; Rotola v. Punxsutawney Furnace Co., 277 Pa. 70. As stated above, when an employee is off the premises, the word “actual” engagement has a marked significance as it relates to the liability of the employer for compensation. It does not include a mere personal preparation for work at home, which may include dress as well as meals; nor does it include the journey to the premises to work; nor for the same reason would it include leaving the premises after work either to return home or to prepare one’s self to enter a new engagement for the employer, by the performance of extra work. Time spent in the work of personal preparation, including the journey to and from, may be in aid of the actual engagement, but it does not, in law, amount to actually engaging in the furtherance of the affairs of the employer. Coming to the facts in the instant case, as controlled by these principles, we find that, when the deceased finished his usual labor each morning, under ordinary circumstances he left for home. It was the customary thing to do, and his conduct on the morning of the accident was not different from what it was on other mornings. True, on that morning he was directed to do some extra work, and, according to the testimony, said he had had no breakfast, and would go home to eat before starting work. There were some other men who received similar instructions, but the purpose which caused them to leave on this morning was the same as that of any other morning, and, had the accident occurred at a time when no orders were given for extra work, it could not be contended either that the injury occurred in the course of employment or that he was actually engaged in furthering the employer’s business. The instructions to do extra work and the statement that he would go home for breakfast did not serve to continue the old employment that had ended, and the wage for which had ceased. Nor did the instructions constitute a new engagement dating from the hour when the orders were given; no pay was to be received for his time in the interval. The working hours of his regular employment had closed. No further contractual relation existed as to it, and the injury occurred off the premises. The new employment would not commence until his return, and wages would be paid for the time he actually worked thereafter. To carry appellant’s claim to its utmost, the employment would continue from the moment orders were given until he returned, though he might not be needed for some hours, during which time the employer would be subjected to liability. This, as indicated above, is not the rule. The court below was correct in holding that there was no employment in the interval of time between the ending of his regular- working hours and the beginning of his new work, during which time he was off the employer’s premises. The judgment of the court below is affirmed.

Opinion by Mr. Justice Walling, At the time in question, the defendant, George H. Simmerman, a practicing physician of Philadelphia, had a winter home at Clermont, Florida, at which the plaintiff, Andrew Knox, also a practicing physician of Philadelphia, was a guest. On the afternoon of February 18, 1927, the two physicians and a mutual friend were returning from the Plymouth Country Club on a paved highway of ample width, called the Mt. Dora Road, in an automobile known as a coupé, owned and driven by the defendant. As they approached a curve the coupé, failing to make the turn, dashed into a large pile of crushed stone outside of the pavement, turned nearly twice over and the plaintiff was thrown from the rear seat against and partly through the dashboard, sustaining personal injuries. This suit brought on account thereof resulted in a compulsory nonsuit, and the refusal to take it off forms the ground for this appeal. The action was based on allegations of the defendant’s negligence which the trial court held had not been shown. We have reached the conclusion that, so far as the case had been developed, the question of defendant’s negligence was for the jury.. Plaintiff was an invited guest in defendant’s coupé and it was the latter’s duty to use ordinary care for his safety: Conroy v. Commercial Casualty Co.’s Ins., 292 Pa. 219; Ferrel v. Solski, 278 Pa,. 565; Cody v. Venzie, 263 Pa. 541. Huddy on Automobiles (8th ed.), page 946, says: “When the occupant of an automobile is injured through the operation of the machine, and it is shown that the driver was negligent and the occupant was not guilty of contributory negligence, it is clear that the latter can maintain an action against the driver and recover compensation for his injuries.” It was a clear day on a broad dry pavement, the coupé was in the exclusive control of the defendant, and the accident was such as under normal conditions does not occur; hence, it so happening, unexplained, would justify a jury in presuming the defendant was negligent. It is not a case of res ipsa loquitur, for negligence is not presumed from the mere happening of the accident, but from the circumstances under which it occurred. It was an abnormal occurrence such as in the usual course of events does not occur. An automobile when driven along a dry. level road in daylight at proper speed and under control is not accustomed to leave the pavement and dash against a stone pile at the road side. That the coupé did this very extraordinary thing is some evidence that it was not properly driven. In Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, the rule is stated, that, “When the thing which causes the injury is shown to be under the management of the defendants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that tbe accident arose from a want of care.” This is quoted with approval by Mr. Justice Sadler, speaking for the court, in Durning et al. v. Hyman, 286 Pa. 376, 379. The present Chief Justice, speaking for the court, in Gawronski v. McAdoo, 266 Pa. 449, states the principle, as summarized, that, “Where a thing is shown to be under the management of defendant and the accident is such as in the ordinary course of things does not happen if proper care is used, the burden is on defendant to prove that the accident did not arise from want of care.” And see Lessick et ux. v. Proctor, 300 Pa. 347; Latella v. Breyer Co., 87 Pa. Superior Ct. 325. Paragraph four of plaintiff’s statement avers, inter alia, that “the defendant drove said car towards and around a curve or point in said highway in a negligent, careless and dangerous manner, so that the machine collided with and struck a pile of material deposited in said highway”; while paragraph five states, “Plaintiff avers that the injuries received were due solely and proximately to the negligence of the defendant, in that he drove said car upon the Mt. Dora Highway at a high, dangerous and grossly excessive rate of speed.” It will be observed that in paragraph four negligence is charged in general terms, and that paragraph five avers excessive speed as the sole proximate cause of the accident; the proof, therefore, must support the specific cause. The defendant in the instant case could not be expected to come prepared to meet a cause of action not averred, especially when the plaintiff had limited the complaint to a specific act, thereby excluding all others. Had paragraph five been omitted, it might well be held that defendant by going to trial on the general averments of paragraph four had waived his right to a more specific statement. See King v. Brillhart, 271 Pa. 301; Lessick et ux. v. Proctor, supra. True, when two or more acts of negligence are averred, it is sufficient to prove one of them (Moyer v. Blue Mt. Electric Co., 294 Pa. 265; Dougherty v. Davis, 51 Pa. Superior Ct. 229; Goldie v. Pittsburgh & L. E. R. R. Co., 44 Pa. Superior Ct. 350), but here the only specific act complained of was the speed and, as it was made the sole cause, it was necessary for plaintiff to prove it. The essential averments of plaintiff’s claim must be proven as averred: Steigmaier v. Keystone Coal Co., 225 Pa. 221. Plaintiff must not only prove a cause of action, but the cause of action set forth in his statement: McLean v. A. Schoenhut Co., 225 Pa. 101; Killeen v. Del., Lack. & W. R. R. Co., 270 Pa. 123; Rodell v. Adams, 231 Pa. 284; see also Harris v. Blitzstein, 84 Pa. Superior Ct. 498; 45 C. J. 1225. As stated by Mr. Justice Kephart, in Dever v. P. R. R. Co., 66 Pa. Superior Ct. 515, 517: “It was incumbent on the plaintiff to establish this [defendant’s] negligence and when a cause for injury is laid in the pleadings, the plaintiff is obliged to prove that the injury occurred in the manner asserted.” While the testimony was that the speed was not unusual on the straight road, yet the circumstances justify the conclusion that it was too high for safety in rounding the curve; for it is a matter of common knowledge that the speed of a car, properly driven, is slackened on passing around a curve. The speed is excessive whenever it places the car beyond the control of the driver, and this is especially so when passing an obstruction or rounding a curve. See Moquin v. Mervine, 297 Pa. 79; McGrath v. P. R. R. Co., 71 Pa. Superior Ct. 1. To drive a car so fast as not to be able to avoid a visible obstruction is negligence: Brink v. City of Scranton, 85 Pa. Superior Ct. 342. The evidence tending to show that the speed was not slackened at the curve, and that the car left the pavement, shot into the stone pile and was wrecked, was sufficient to take the question of excessive speed to the jury and, unexplained, to justify a finding that it was the cause of the accident. Therefore, the rule to take off the nonsuit should have been made absolute: Simpson et ux. v. Jones 284 Pa. 596, relied on by tbe trial court, is not controlling, for there the accident resulted from skidding of the rear wheels under unusual circumstances. The order refusing to take off the nonsuit is reversed with a procedendo.

Opinion by Mr. Justice Maxey, The appellant, Norman Altman, obtained a verdict against the Standard Refrigerator Company for $5,500 in an action of trespass for malicious prosecution. The court below granted defendant’s motion for judgment n. o. v. on the ground that plaintiff “presented against the defendant no case of malice or want of probable cause.” “The uncontradicted evidence,” the court held, “must convince any candid mind that the prosecutor acted upon probable cause and without malice.” The court said further: “[If] the capricious verdict [of the jury] must be sustained, the conclusion is a sorry reflection upon the ability of our legal procedure to attain the ends of justice.” Altman was employed as a salesman on a 10% commission basis by the Standard Refrigerator Company, Inc. (hereinafter referred to as the “company”), from August, 1925, to July, 1928. The action was founded upon Altman’s arrest by or at the instance of the defendant on charges (1) of obtaining money on false pretenses from Alex. Shusko, one of the customers of the company, and (2) of the unlawful conversion of the company’s money in a transaction with Max Jonas, another customer of the company. In the Shusko Case Altman was acquitted by a judge without a jury in Camden County, N. J. The state’s case was that Shusko, who, it was testified to, could neither read nor write, had been imposed on by Altman, but when it was brought out at the trial that Shusko’s wife, who could read and write, was in a back room at the time the contract was signed, and had signed the contract as a witness, the trial judge said that Shusko should have availed himself of his wife’s assistance in reading the contract before he signed it, and because he had failed to do this, he was “going to give Altman the benefit of the doubt and let him go.” In the Jonas Case Altman was acquitted by judicial direction in the Court of Quarter Sessions of Atlantic County, N. J. This direction was given because only stubs of the checks and photostatic copies of the checks Jonas had given Altman and not the checks themselves had been produced. The court held that this was not competent evidence. On May 22, 1928, Altman, as agent for the company, obtained a written order from Alex. Shusko, of Camden, for certain merchandise to be delivered by the company for $1,100, payable $412 down, and the balance on delivery. This Ayas signed by “A. Shusko, customer,” and “N. Altman, representative.” On June 15, 1928, Altman had Shusko execute a “conditional bill of sale” for the same merchandise but Altman executed it as “Dealer-Jobber.” The sales agreement was on the regular printed form of the company but the name of Norman Altman had been substituted for that of the company. The terms of this agreement were $412 cash upon execution, and $954 in eighteen equal monthly installments. In June, 1928, when Altman had custody of the balance of $688 due by Shusko on the original order calling for a payment of $1,100, Altman before paying this to the company deducted $110 as his commission, and a “customer’s discount” of $22. It was testified that the company’s salesmen were not authorized to retain commissions when delivering collection proceeds to the company, but were paid their commissions by the company at the end of each month. When Altman made this deduction, the company’s books showed that he had overdrawn his commission account by $715.45. The company’s president, R. E. Frederick, and the bookkeeper also testified to this overdraft. When Altman’s atten tion was called to this deduction, he said to the bookkeeper: “Try and get the commission.” This was reported to the president, and the latter sent the bookkeeper to Camden to see Shusko. He learned from Shusko that the latter had not paid anything on his contract, except the $412 down payment. The fact that Altman had made to the company the final payment on the $1,100 due on the original order (except the $1101 commission and the $22 “discount”) though he received only $412 from the customer excited the suspicions of the president, and he also conferred with Shusko. He learned from him that when the merchandise had been delivered on or about June 15th, Altman had presented “some papers” and told him that it was necessary for him to sign them, that these papers were merely a contract between Shusko and the company for the sale of the merchandise, and that the amount stated in the contract was the same as in the order. Shusko further told Frederick that he was a foreigner and had difficulty in reading English; that Altman had been to see him many times, and that he believed in Altman, and therefore had signed the papers, i. e., the contract. Shusko then showed Frederick the copy which had been left with him by Altman. It was “the conditional bill of sale” of June 15th. Frederick noticed that Altman had filled in his own name and that the contract called for a purchase price of $1,366, instead of the $1,100 named in the order of May 22d. It also recited that a promissory note had been given by Shusko for the balance of $954, over and above the $412 down payment. This note Altman had discounted. While the contract covered the company’s merchandise, the company’s name nowhere appeared therein. In the first paragraph the name “Norman Altman” appears as being the person to whom the purchase price was to be paid. In the very next paragraph it is set forth that Shusko agrees “that the title and ownership of said property and equipment shall remain in you, your successors, and assigns, until the purchase price has been fully paid in cash and all of the conditions hereof have been performed.” “You” in that agreement can mean nobody but Norman Altman. The entire contract which Altman had by deception foisted upon Shusko represents Altman as the owner of the goods. Without the knowledge or consent of the owner, Altman in the contract assumed ownership of them and sold them for $1,366 as though they in fact belonged to him. Frederick next employed a detective and together on July 9, 1928, they went to Shusko’s store and arranged to have the latter telephone them when Altman would be there so that they could secrete themselves and overhear the conversation. This plan was carried out. When Altman arrived he declared to Shusko that the latter owed him $1,391, and then refigured the amount to $1,-366. Altman asked for $500 on account, and when Shusko said that he could not pay it, Altman kept on reducing the figure until the sum he finally asked for was $50 on account. It was learned at this time that Altman had recorded a copy of the contract at the office of the register of deeds and mortgages, in Camden, and another copy at the North Camden Trust Company, where the Shusko note for $954 had been discounted. Frederick and the detective next went to Philadelphia and acquainted Attorney Shallow of the Philadelphia bar with the facts of the Shusko transaction. They showed him the original order of May 22d, and told him about the contract of June 15th. Attorney Shallow said it seemed to him that there had been criminal imposition on Shusko but that since it had taken place in New Jersey, someone in that state should handle the case, and he recommended Attorney Varbalow of Camden. Frederick and the detective consulted this attorney and disclosed the facts to him. He advised them that a criminal action against Altman on the ground of obtaining money under false pretenses appeared to be justified but he said that he would like to talk to Shusko. This he did. Attorney Varbalow testified that he went to the North Camden Trust Company, where he “got a glimpse of the discounted note, and that was assigned as collateral security, and the original signed by Shusko was identical with the copy at the county clerk’s office.” Shusko informed the attorney that he, Shusko, did not understand he was dealing with Altman, nor did he understand the price was to be $1,366. The attorney asked Shusko “how he came to sign the contract, and he said he could not read or write, except sign his name, and had he known about it he would not have signed the contract.” The attorney told Shusko that in his opinion “he [Shusko] had been imposed on, because under our statute obtaining anything of value under false pretenses is a criminal offense” and he advised Shusko “to swear out a warrant” for the arrest of Altman. Frederick and the detective and Shusko went to the city hall at the direction of Attorney Varbalow, and Shusko swore out a warrant for Altman’s arrest. Altman under cross-examination admitted, as the documents themselves proved, that he had Shusko sign the contract in triplicate after the merchandise was delivered to Shusko; that the price stated in the papers which he had Shusko sign was $1,366, instead of $1,100, as named in the order; and that while the order stated that Shusko purchased the merchandise from the Standard Refrigerator Company, Inc., yet in the contract Altman’s name was substituted for that of the company. He admitted further that he took the note which Shusko made out to the North Camden Trust Company, to the trust company, and got the $954 proceeds of it, and also received $412 from Shusko, thereby receiving a total of $1,366 on this sale, and all the company received was $1,100 less $110 commission, and an alleged “customer’s discount” of $22, or the net sum of $968. In appellant’s paper book appears this statement: “The defendant company would not ordinarily allow over 12 months’ credit, so the plaintiff, in order to ae commodate Shusko and complete the transaction, undertook to finance it himself. He had done this before, with the knowledge of his employer (Record, page 39a). He thereupon had Shusko make a down payment of $412 and entered into a finance agreement with him for the payment of a balance of $954 in eighteen equal monthly installments of $53 each. On this basis the total cost to Shusko was $1,366.” The record neither at page 39a nor elsewhere justifies the statement that Altman “had done this before, with the knowledge of his employer,” whether the sentence “he had done this before” be interpreted as meaning that he had financed Shusko before or financed other customers before. The question put to Altman on redirect examination at page 39a of the record was: “Had it, or had it not, been your practice, with knowledge of the company, prior to the spring of 1928, toi finance some of these propositions yourself whenever people wanted credit?” He answered: “Yes, it was my •practice to finance some things myself.” This answer does not indicate that he, as agent for the company, ever before financed “propositions” like Shusko’s, or financed any transaction with Shusko, or financed any transaction of any kind, with the knowledge of the company and with any of its customers. Frederick also testified that in a conversation between the detectives and Altman, when he, Frederick, was present, the detectives said to Altman, “Why did you do this and get yourself into this fix?” and that he answered, “I needed the money.” This was when he was arrested on the Shusko matter. The president was asked by his own counsel: “Did your company ever enter into any agreement of sale, or otherwise, relating to the merchandise purchased by Mr. Shusko and the merchandise purchased by Mr. Jonas, with Mr. Altman?” This being objected to, defendant’s attorney said: “I am trying to show that they never made any contract with Mr. Altman.” Plaintiff’s counsel then said: “Oh; I will agree to that. There is no question about that.” Attorney for defendant followed this by saying: “The company never made any agreement of sale or contract for the sale of goods to these parties with Mr. Altman.” To this statement there was no objection. The important point for us to consider in respect to the Shusko Case is that there is no contradiction in the record of the statement of the president of the company that Shusko had told him that he, Shusko, was deceived by Altman into signing the contract for the purchase from Altman of goods which the latter did not own. The fact that Frederick heard these statements from Shusko and saw the contract referred to constituted adequate grounds for the belief on his part that Altman had been obtaining money from Shusko under false pretenses. That such a belief was engendered in his mind is evident from his testimony and from his subsequent actions. Further, in proof of his good faith in this matter he laid all the facts he had discovered before a member of the bar of the county in which the justly suspected act took place. This lawyer after verifying the facts by consulting Shusko recommended the criminal prosecution of Altman. Frederick’s consultation with a lawyer, if a full and fair disclosure of the facts was made, is evidence of his good faith, rebuts any imputation of malice, and is persuasive proof of the existence of probable cause. Though Altman does not deny that he charged Shusko $266 more than the original order of Shusko called for, he sought to defend this charge by stating that he carried the account for Shusko for eighteen months, by discounting Shusko’s note for $954 at the' North Camden Trust Company. This was no defense whatever to the charge that he obtained money from Shusko by falsely pretending that the merchandise sold Shusko belonged to Altman. The fact that Altman testified here that at his trial in Camden for obtaining money under false pretenses Shusko demonstrated that he could read, does not in the slightest degree affect the question now before us. If we were here trying Altman for obtaining money by false pretenses, we might have to consider whether the representations made by Altman in submitting the written contract to Shusko in which Altman was described as the owner, or at least as “Dealer-Jobber,” were of such a character as to deceive a person of ordinary caution and prudence. The plausibility of the representations would have to be determined by the capacity of the person to whom they were made and the circumstances under which they were made. Even if Shusko could read, it is not improbable that having known Altman as the agent of the company he would have accepted his statement as to the contents of the contract of sale without reading it and would have assumed that the contract was consistent in all its terms with the order which he had given twenty-four days previously. Neither do we believe that the fact that Shusko’s wife, who could read English, was present, and could have discovered (assuming that she was intelligent) the imposition on her husband, exculpates Altman to even the slightest extent. However, that question is not before us. The account of another customer, Max Jonas of Atlantic City, was then investigated. On February 8, 1927, Altman, as the company’s agent, obtained a written order from Jonas for the company’s merchandise for $1,-162, payable $450 on delivery and the balance in twelve equal monthly installments. On February 28, 1927, the terms of this order were incorporated in a written contract signed by Altman as the company’s agent. Altman himself made a down payment of $450 for Jonas and was later reimbursed by the latter with interest. Altman took from Jonas eleven notes, dated March 1, 1927, and payable to Altman’s order. He testified that he received a total “of-notes and checks” from Jonas of $1,-160, and" “the amount” he turned over to the company was $869. When the detective investigated this case Jonas gave him these eleven cancelled notes. Altman admitted having received them, as well as two more for $90 each, from Mr. and Mrs. Jonas. Jonas told Frederick that he did not keep his cancelled checks. The check stubs showed that the notes in Jonas’s possession had all been paid. There were two notes missing: one payable seven months and one nine months after date. Jonas told Frederick that while he did not know where they were, he was sure they had also been paid by him to Altman. His check stubs verified this. He also said that he had paid to Altman the additional sums of $94 and $100. The cancelled notes made out to Altman’s order, turned over by Jonas to the detective, together with the check for $94 and the note for $100, all of which Jonas stated he paid to Altman, came to a total of $1,-176. Jonas also declared that he paid the amounts of the two missing notes, $90 each, making a total of $1,356. This information indicated to Frederick that Jonas had paid Altman on this account $487 in excess of the sum of $869 which Altman had accounted for to the company. If the two missing notes for $90 each are deducted from this sum, Jonas’s statement to Frederick and the corroborative papers produced would logically induce a belief that Altman had received from Jonas $307 more than he had accounted for. Frederick would naturally be the more inclined to credit customer Jonas’s statements indicative of wrongdoing by Altman after learning (as he had learned) of Altman’s wrongful conduct with customer Shusko. Altman in rebuttal declared that he had turned over to the company “everything that was due them for the notes [of Jonas] that were paid.” He said that when he left the company, he went to Jonas and showed him the five notes, he, Altman, still had, three for $90 each, one for $72, and one for $100, totaling $442, with interest. He added: “Of this amount, $477 [apparently inclusive of interest], there was still due to the Standard Company $293, and to me $184. He [Jonas] gave me a $94 check and a 90-day note for $100, and I told him he had better start to pay the Standard Company because I no longer had authority, that I was not with them any more.” It is important to note that the above does not purport to contradict what Frederick testified Jonas told him, Frederick, that he, Jonas, had paid Altman $487 (or $477, as Altman figured it) in excess of the $869, which Altman had accounted for. The $869 actually received by the company was $293 less than the sale price named in the Jonas order of February 8th. Frederick and the detective then laid the Jonas matter before Attorney Varbalow. The latter testified: “They showed me some notes that had been paid by Jonas, and the signatures were torn off of them, and these notes were at variance with the amounts indicated as the installments paid on the Jonas contract.” They showed him a check dated July 1, 1928, for $94 and told him that Jonas said “he paid all these notes and that he had the notes with the signatures torn off as representative of his having paid them. They had indicated to me that Jonas had overpaid some $200 in excess of what they had received and had proofs in the way of cancelled cheeks and notes to indicate that. I then concluded that this was an embezzlement, but inasmuch as it was in Atlantic City, I suggested that they see the prosecutor of the pleas of Atlantic County, and I then called up Mr. Hinkel, the assistant prosecutor,......and told him the facts as they were told to me.” Hinkle told him “to send those people down and I will take them before the grand jury.” The grand jury returned a true bill alleging embezzlement. In appellant’s paper book it is stated that “Altman testified that he advised his employer of the [Jonas] transaction,” and reference is made to a certain page of the record. The only evidence there (or elsewhere in the record) as to this is the following: Q. “Did you [Altman] ever tell the Standard Company that you had the [Jonas] notes?” He answered: “Yes, I told Mr. Shuslinger, the man who was the bookkeeper at that time, I told him that I had made the down payment on the fixtures, and that I was getting the rest from Jonas.” Altman’s statement (already noted) that “it was my practice to finance some things myself” and the statement that he “told the bookkeeper,” etc., about the Jonas notes wholly fail as proof that the company had authorized any such course of dealing as he personally had with Jonas, or had ever expressly or tacitly ratified it. This failure of proof made rebuttal unnecessary and immaterial, yet Frederick did offer rebuttal on this point as follows: “We absolutely did not know about any such ‘financing of customers.’ We wouldn’t stand for anything of that type.” He was asked: “Did you or your company have any knowledge at all that he [Altman] was making these special arrangements with either Jonas or Shusko?” He answered: “Not until the time of the investigation.” There is no contradiction anywhere in the record of the statement of Frederick that Jonas told Mm that he had paid Altman on account of the merchandise bought from Frederick’s company; more money than Altman had accounted for, and that Jonas exhibited to him corroborative proof of that fact. This constituted adequate ground for the belief on Frederick’s part that Altman had unlawfully converted to his own use the company’s money. Furthermore, Frederick made a full and fair disclosure of all the facts of this transaction within his knowledge to counsel presumably disinterested and competent and. he obtained and acted upon that counsel’s advice. This is evidence of his good faith, rebuts any imputation of malice, and is persuasive proof of the existence of probable cause. The fact of the prosecutor’s consulting counsel, and obtaining and acting upon his advice, should be considered rather as tending to rebut malice, than as bearing upon the issue of probable cause: Brewer v. Jacobs, 22 Fed. Rep. 217. “Strictly speaking, taking advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause”: McClafferty v. Philp, 151 Pa. 86, 91, 24 A. 1042. See also Emerson v. Cochran, 111 Pa. 619, 622, 4 A. 498; Walter v. Sample, 25 Pa. 275, and Ravegna v. MacIntosh, 4 Dowl. & R. 107, 2 Barn & C. 693. As the record stood at the close of the trial: (1) It had been proved that Altman had been arrested on criminal charges twice at the instance of the chief executive officer of the company and that he had been acquitted; (2) There was failure of proof that the arrests had been made maliciously and without probable cause, for proof of acquittal on a crime charged is not equivalent to proof of malice or want of probable cause. The termination in plaintiff’s favor of the criminal proceedings on which the action of malicious prosecution is based is only one of three essential elements of proof required of a plaintiff in such an action as this. The other two elements are malice and want of probable cause. “Nothing will meet the exigencies of the case so far as respects the allegation that probable cause was wanting except proof of the fact. Though such allegation is a negative one in its form and character, it is nevertheless a material element of the action for malicious prosecution, and the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no reasonable or probable ground for instituting the original proceeding, unless the defendant dispenses with such proof by pleading singly the truth of the several facts involved in the charge”: 18 R. C. L., section 32, page 51. “The great weight of authority and reason is that the mere fact of the acquittal of a defendant upon the trial of a criminal charge is not prima facie evidence of the want of probable cause for the prosecution”: 18 R. C. L., section 23, page 40. Wigmore in volume 2 of “Select Cases on the Law of Torts” (1912 edition), at page 897, section 309, says that a defendant is excused in an action for malicious prosecution when any one of the following conditions is fulfilled: “either (a) the plaintiff was in fact guilty of the wrong as charged (just cause) ; or, (b) the defendant [in the civil case] believed and had probable ground to believe the defendant [in the criminal case] guilty (just cause) ; or (c) the defendant resorted to legal process for the purpose of securing justice upon the plaintiff, and not primarily to gratify personal malice or spite.” In section 310, he says: “The defendant has not the burden of pleading and proving the existence of any one of the three facts which thus afford him excuses; the plaintiff has the burden of proving and pleading the nonexistence of all of the three; i. e., the circumstance that the defendant resorted to legal process is of itself an excuse which protects him, unless the plaintiff proves that no one of the three additional facts existed.” (Italics supplied.) In the case of Roessing v. Pitts. Rys. Co., 226 Pa. 523, 75 A. 724, this court held that since the plaintiff met the burden cast upon him “only to the extent of proving his arrest, indictment, trial and acquittal,” the court beloAV erred in “shifting to the jury the responsibility for deciding whether” there was probable cause for the arrest. Judgment was by this court entered for defendant n. o. v. In Stewart v. Sonneborn, 98 U. S. 187, the Supreme Court of the United States said: “In every case of an action for a malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed, but its failure has never been held to be evidence of either malice or want of probable cause for its institution; much less that it is conclusive of those things.” In Boyd v. Kerr, 216 Pa. 259, 65 A. 674, this court said: “Where there has been a failure to show a want of probable cause, it is the duty of the court to enter a non-suit or to direct a verdict for the defendant.” In McClafferty v. Philp, supra, Sterrett, J., said: “It was incumbent on the plaintiff to show not only that there was want of probable cause for the prosecution, but also that there was malice on the part of the prosecutor.” In the case of Steimling v. Bower, 156 Pa. 408, 27 A. 299, the party sued “defendant on the ground that, even if mistaken as to the legal value of the facts, they afforded probable cause for instituting the prosecution” of the plaintiff on the charge of larceny. The court below instructed the jury “that as the facts charged did not amount to larceny they afforded no probable cause for the prosecution, and that this fact was evidence upon the question of the existence of malice in the mind of the prosecutor against the defendant.” This court held “it was error to tell the jury that......the facts showed ......that no probable cause existed.” To entitle plaintiff to recover in an action for malicious prosecution, “it must clearly appear that the prosecution was groundless”: Kirkpatrick v. Kirkpatrick, 3 Wr. 288. Mitchell v. Logan, 172 Pa. 349, 33 A. 554: In that case, as in the case now before us, defendant had been acquitted of the criminal charge made but nevertheless the court below directed the jury to return a verdict for defendant because plaintiff had failed to show want of probable cause. The judgment was affirmed. In Crescent City Live Stock Co. v. Butchers’ Union Slaughter House Co., 120 U. S. 141, the Supreme Court of the United States quoted approvingly the ruling of the Supreme Court of Louisiana “that to sustain the charge of malicious prosecution it is necessary to show: ‘1st, that the suit had terminated unfavorably to the prosecutor; 2d, that in bringing it the prosecutor had acted without probable cause; 3d, that he was actuated by legal malice, i. e., by improper or sinister motives. The above three elements must concur.’ ” On the state of the record at the close of plaintiff’s case those three elements had not concurred. Plaintiff had proved only one of the three elements of his tripar tite charge, i. e., the unsuccessful termination of the criminal prosecution against him. He did not prove either the prosecutor’s malice or want of probable cause. Therefore, defendant was entitled to binding instructions in its favor, but defendant did not rest on the record as it then was. It proceeded affirmatively to establish these facts which plaintiff did not even attempt to contradict, to wit: (1) Altman assumed the ownership of merchandise which belonged to the company and sold it as his own to Shusko and at a profit to himself (in addition to his commission), thereby obtaining money from Shusko under false pretenses; (2) Jonas told the company’s president that he, Jonas, had paid Altman on account of merchandise purchased from the company a certain sum of money which Altman had not accounted for to the company. With these undisputed or clearly established facts before the court below, we say in the language of Mr. Justice Green in Sutton v. Anderson, 103 Pa. 151, “It is not easy to conceive how a stronger case of probable cause than this could be made out.”' In that case this court held that in an action for malicious prosecution the defendant was entitled to a directed verdict because it had been shown that there had been a clear case of probable cause for the criminal prosecution. The phrase “probable cause” is practically self-defining, but if a definition be required, one that has been frequently cited with approval by the appellate courts of this State is that found in McClafferty v. Philp, supra, “Probable cause is generally defined to be a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man [in the same situation] in believing the party is guilty of the offense.” In Delany v. Lindsay, 46 Pa. Superior Ct. 26, this is characterized as “a concise but comprehensive definition.” See also Smith v. Ege, 52 Pa. 419. When the facts are established or undisputed, who is to judge the existence of probable cause? This question is settled. In Robitzek v. Daum, 220 Pa. 61, 69 A. 96, this court said in an opinion by Mr. Justice Elkin, “What is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court: Walbridge v. Pruden, 102 Pa. 1.” “Where there is probable cause for a prosecution the court errs in not so pronouncing”: Dietz v. Langfitt, 63 Pa. 234. In Taylor v. American International Shipbuilding Corporation, 275 Pa. 229, 231, 119 A. 130, this court held: “If all the admitted facts, and the reasonable inferences therefrom, amount to probable cause, the court must so declare and direct a verdict for defendant.” At 38 C. J., page 504, section 194, is laid down this principle: “Where the facts relied on as constituting probable cause are admitted or undisputed and only one inference can be drawn therefrom, the question of probable cause is solely for the determination of the court.” In the case of McCoy v. Kalbach, 242 Pa. 123, 88 A. 879, this court held that probable cause “was so clearly shown as to require the court below to declare it existed.” In Gow v. Adams Express Co., 61 Pa. Superior Ct. 115, which was an action for malicious prosecution, the facts showed that the plaintiff was discharged on a nolle prosequi after he had been confined in jail for seventy-six days. The court below held that “the facts that were either admitted or established by uncontradicted evidence constituted reasonable and probable cause,” justifying defendant’s arrest, and, as here, entered judgment for the defendant n. o. v. The judgment was affirmed. Greenleaf on Evidence, 10th edition, volume II, page 410: “If the judge, upon the plaintiff’s evidence, is of opinion that there was not probable cause for the prosecution, but upon proof of an additional fact by the defendant, by a witness who is not impeached or contradicted, he is of opinion that there was probable cause, he is not bound to submit the evidence to the jury, but may well nonsuit the plaintiff.” Appellant calls to our attention the case of Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523, and argues that the decision in that case supports appellant’s contention that the entering of judgment n. o. v. for the defendant in the instant case was an unwarranted interference with the finding of the jury and is decisive of the question now before us. The question decided in the Nanty-Glo Boro. Case is only a “distant relative” of the question now before us. We there decided that in a suit on a surety bond, plaintiff makes out a prima facie case only when its proof is sufficient not only in its quantity but also in its quality, i. e., in its credibility. The latter is for the jury; it is not a court’s function to pronounce any oral testimony “credible.” In the instant case we hold that accepting at its face value all of plaintiff’s testimony as credible, it fails to support plaintiff’s allegation of an arrest made maliciously and without probable cause. Professor Thayer in his “Preliminary Treatise on Evidence at the Common Law,” page 225, in discussing actions for malicious prosecution, aptly says: “Baptizing the question of reasonable and probable cause......as a ‘mixed question of law and fact’......has only added to the confusion.” At page 222, he says what the court really decides is “whether a certain conclusion is permissible, whether it can be reached by a jury.” The jury’s conclusion that plaintiff proved the existence of malice and want of probable cause is in this case not permissible. The maximum of plaintiff’s proof was that he had been acquitted of the criminal charge preferred against him by the defendant. This was not sufficient. If the plaintiff offers evidence which if credited sustains his burden of proof, and if this evidence is challenged, an issue of fact arises which must be submitted to the jury with proper instructions. A trial method which may be used at the discretion of the court and often is used in cases of malicious prosecution is for the court to request the jury to find a special verdict, placing on record all of the essential facts of the case, including the disputed as well as the undisputed facts, and for the court to declare the law on the facts so found. See Panek v. Scranton Ry. Co., 258 Pa. 589, 102 A. 274. Whether or not there is probable cause for a prosecution for a violation of the criminal law is, under the facts found, admitted, or conclusively established, purely a question of law for the court. A rule that an acquittal on a criminal charge is prima facie evidence that its prosecution was initiated maliciously and without probable cause, and therefore warrants an award of damages against the prosecutor is rejected by the overwhelming weight of authority and is condemned by every sound consideration of public policy. Such a rule would discourage bona fide efforts to enforce the criminal laws. Blackstone says in volume 3, section 127, page 1124: “...... It would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.” A probable cause for one’s prosecution may be even less than a strong probability of guilt, and yet even a strong probability of guilt does not measure up to the criminal law’s requirement of proof beyond a reasonable doubt. Not proofs of guilt but substantial indications of guilt are legally justifiable motives for bringing a criminal prosecution. Anyone who has reason to believe that there is probable cause for prosecuting another has a legal right to undertake it. If those who do so are to be penalized by having damages awarded against them because the prosecution fails, few will be rash enough to approach the courts for the vindication of criminal laws which they with good reason honestly believe have been violated to their personal injury and to the public prejudice. The jury penalized this defendant for acting properly on a well-founded belief. This penalty the court below promptly annulled. Its action was right. The judgment is affirmed.

Opinion by Mr. Justice Horace Stern, This appeal is under the Act of March 5, 1925, P.L. 23, and accordingly is limited to a determination of the question as to whether the court below had jurisdiction of the action. With that restriction in mind it is evident that the ruling of the court below sustaining its jurisdiction must be affirmed. A contract was entered into between the City of Lebanon, the defendant, and Kingston Contracting Company, the plaintiff, in which it was provided that plaintiff should furnish all the materials, labor, and equipment and perform all the work required for the construction of a certain reservoir and dam. The work was to be completed within a year; in fact it was not completed for more than two years; plaintiff claims that the delay was caused by the necessity of changing the location of certain parts of the dam due to errors in the drawings and plans which had been prepared by the consulting engineer employed by defendant. After the work was completed plaintiff submitted to defendant for payment various items of alleged damages aggregating approximately $352,000 and representing increased costs and expenses resulting from the changes in the drawings and plans. Defendant referred these claims to the engineer for the preparation of a final estimate of the amount due. The engineer made a finding that plaintiff was entitled only to the sum of approximately $13,000 in addition to what it had already been paid. Plaintiff thereupon brought the present action of assumpsit to recover on its claims which had been thus rejected, alleging in its complaint that the decision of the engineer should be set aside because it was “arbitrary, capricious, and unlawful”, that it involved a passing of judgment upon the engineer’s own defective work in the selection of the site for the project and in the preparation of the plans and drawings, and that, by reason of personal and financial interest in the determination of plaintiff’s claims the -engineer was “divested of judicial power and juridical discretion.” Defendant filed preliminary objections to the complaint, praying the court to dismiss the action for lack of jurisdiction because of the fact that the contract between the parties provided that the decisions of the engineer on all claims of either of the parties were to be binding upon them, that the final estimate of the engineer was to be conclusive evidence of the amount of work performed by plaintiff and was to be taken as the full measure of the compensation to be received by it, and that all questions or disputes between the parties respecting any matter pertaining to the contract and which were not or could not be decided by the engineer should be referred to a board of arbitration consisting of three members, one to be appointed by the plaintiff, one by defendant, and the third to be chosen by the two thus named, this board to decide the question or dispute, all rights or any action at law or in equity under the contract and all matters with relation thereto being expressly waived by the parties. Defendant claimed that the court was without jurisdiction to consider plaintiff’s claims unless and until the decision of the engineer was nullified, and that that decision could be attacked only by proceedings in equity. Defendant’s preliminary objections also embraced a motion for more specific pleading, and a demurrer to the complaint on the ground that it was insufficient in law and did not state a valid cause of action. Since, however, as already stated, we can consider on this appeal only the matter of jurisdiction, the correctness of the decree of the court below (which dismissed all the preliminary objections) is now subject to our review only on that one question. It is clear, this being a suit in assumpsit on a contract, that the court had jurisdiction of the subject matter. Even if it should ultimately be decided that plaintiff’s action cannot be maintained because the final estimate of the engineer was, under the terms of the contract, to be conclusive, the question of jurisdiction would not be affected thereby. In Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566, we stated principles which are here applicable, namely that even though a plaintiff have no standing to bring his action, even though his complaint be demurrable, even though he fail to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine, the question whether the court had jurisdiction of the litigation. We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, — whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case; that the Act of 1925 was not intended to furnish a short cut to a determination of the issues of law or fact raised by the pleadings and that it was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined. In support of those principles many decisions of our appellate courts were cited, and a host of later authorities has since been added to the long list there set forth. Defendant contends that if the decision of the engineer is to be attacked by plaintiff it must be by a proceeding in equity and not by an action at law, but such a contention, even if valid, has no place in the determination of the question of jurisdiction. Section 4 of the Act of 1925 provides that “The right of appeal here conferred is not intended to cover questions of jurisdiction which go to the form of the action alone as between law and equity, . . .” (See Rutherford Water Co. v. Harrisburg, 297 Pa. 33, 37, 146 A. 113, 114; Conemaugh Iron Works Co. v. Delano Coal Co., 298 Pa. 182, 187, 148 A. 94, 96; Stone v. New Schiller B. & L. Assn., 310 Pa. 196, 200, 165 A. 12, 13). Defendant suggests that possibly plaintiff’s remedy, if it wishes to challenge the engineer’s award, is to proceed under the Arbitration Act of April 25, 1927, P.L. 381; (citing Seaboard Surety Co. v. Commonwealth, 345 Pa. 147, 27 A.2d 27). Even were that so, however, and the present action were to be dismissed, such a decision would not bear upon the jurisdiction of the' court. Nor are the cases in point upon which defendant relies, namely, Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A.2d 534, and Glen Alden Coal Co. v. State Tax Equalization Board, 367 Pa. 63, 79 A.2d 645. In the Kaufman case a statute provided that no appeal should lie from a decision of the Board of Arbitration of Claims; therefore the court had no jurisdiction over the class of cases cognizable by that Board. Likewise in the Glen Alden Coal Company case the statute provided that the findings of the State Tax Equalization Board should be final, — in other words, appeals therefrom in that class of cases was prohibited. In the instant case the court has jurisdiction over the class of actions of which the present suit is one, even though as to this one it may ultimately be decided that plaintiff is not entitled thereunder to the relief which it seeks. The decree is affirmed so far as it relates to the jurisdiction of the court; costs to abide the event. Hellertown Borough Referendum Case, 354 Pa. 255, 259, 260, 47 A. 2d 273, 276; Bell Telephone Co. of Pennsylvania v. Philadelphia Warwick Co., 355 Pa. 637, 641-644, 50 A. 2d 684, 686-688; Versailles Township Annexation Case, 355 Pa. 646, 649, 50 A. 2d 689, 690; Upholsterers’ International Union of North America v. United Furniture Workers of America, C. I. O., 356 Pa. 469, 472, 473, 52 A. 2d 217, 219; DeWaele v. Metropolitan Life Insurance Co., 358 Pa. 574, 581, 58 A. 2d 34, 38; Zlotziver v. Zlotziver, 359 Pa. 84, 58 A. 2d 334; Downing v. Erie City School District, 360 Pa. 29, 33, 61 A. 2d 133, 135; Escheat of $92,800, 361 Pa. 51, 59, 62 A. 2d 900, 904; Reading & Southwestern Street Rwy. Co. v. Reading Street Rwy. Co., 361 Pa. 647, 648, 66 A. 2d 260, 261; Commonwealth ex rel. Shumaker v. New York & Pennsylvania. Co., Inc., 367 Pa. 40, 45, 46, 79 A. 2d 439, 443; Specktor v. Specktor, 158 Pa. Superior Ct. 323, 325, 44 A. 2d 767, 768; Masefield v. Masefield, 159 Pa. Superior Ct. 6, 46 A. 2d 329; Meetish Liquor License Case, 161 Pa. Superior Ct. 468, 55 A. 2d 770; Barraclough v. Barraclough, 167 Pa. Superior Ct. 608, 76 A. 2d 504. This section of the act was not suspended by Pa. R. C. P. 1451 (b) (7),

Opinion by Mr. Justice Bell, Plaintiff brought an action for personal injuries; the jury returned a verdict for defendant. The trial Judge died; a substituted Judge granted a new trial for the sole reason that the trial Judge committed basic error in 'charging that all plaintiff established was the “defendant was slightly remiss in his duties.” Defendant took this appeal. At approximately 4:30 a.m. on March 31, 1956, defendant Avas driving his automobile east on Route 28 from New Kensington toward Tarentum. He was driving in his right-hand lane. Michael Segriff, the victim of the accident, had been coming from New Kensington. He was 73 years old; he died a natural death before the trial, and consequently his administrator was substituted. In order to make out a case, plaintiff had to rely on the testimony of defendant — called as on cross-examination — and of a police officer who happened to be following defendant in another automobile. Route 28 at the point of the accident is a three lane highway, 41 feet wide. On the left side of the highway is a paved sidewalk; on the right side where the accident.occurred there was no sidewalk, but only a dirt pathway adjoining the curb. There were no buildings along the right side of the highway, but there was a large junk yard opposite the point of the accident. The nearest light was approximately 75 feet from the point of the accident and it and several other lights nearby were on the left-hand side of the road. Defendant, we repeat, was driving on the right-hand side of the road. Plaintiff’s testimony showed that at the time of the accident (and for some time before) it was dark, there was a drizzling rain and visibility was poor. Defendant was driving about 35 miles an hour, lie testified that although it was raining and the visibility was poor, he could see approximately 100 feet in front of his car — he was watching the road ahead of him in the vision or range of his automobile headlights and there was nobody there to see and he sa/w no one. Suddenly defendant felt a bump on the right side of his car and out of the corner of his eye caught a glimpse of an object which he was unable to identify. lie was driving approximately 5 or 6 feet from the edge of the dirt pathway and the left wheels of his car straddled the dividing line between the first and second lanes. He brought his car to a stop within approximately 75 feet and went back to discover what had happened. He found Segriff lying near the curb on the right side of Eoute 28, with his head and feet approximately 2 to 3 feet from the right-hand curb. Officer Novosat, who was following defendant in his automobile, testified for plaintiff that defendant said, to him “I did not see the man and I hit him.” There were marks on the side of the right front fender of defendant’s automobile 8 inches back of the right front headlight, and the radio aerial — which was 2 inches from the windshield on the right side of defendant’s car- — -was bent. There was no damage to or marks on any part of the front of defendant’s car. Plaintiff produced no evidence which would justify a finding as to where decedent was at the time of or just before the accident — whether he was in the highway or had stepped from the dirt path, or had come out of the junk area. The officer did not see the accident itself, but corroborated defendant’s testimony in all material respects, namely, as to defendant’s speed, the weather conditions, defendant’s description of the roadway, and the physical evidence of defendant’s car. This case was obviously one for the jury and the jury, who saw and heard the witnesses and saw the photographs, found in favor of defendant. The charge of the trial Judge, John J. Kennedy, was able and very fair on the subject of negligence, contributory negligence and a summarization of the facts. When, however, he came to the subject of damages, he said: “. . . The test is that the amount that you allow is in the nature of compensation, not in the nature of punishing the defendant through his pocketbook. There is no claim here that this defendant wanted to hit this man on this night, if he hit him, as distinguished from him walking into the side of his car. All the claim here is that this defendant was slightly remiss in his duties to this plaintiff at the time the accident occurred, and as a result of his laxness or remission or inattention, and so forth, that had he been alert he would have seen him on the road, and he didn’t see him and he ran him down, but there is no claim here that 'he wanted to hurt him. So it is only that he was negligent, that he was not acting with due care, and as a result that this man was badly hurt. So that the pain and suffering and inconvenience item, if you are going to find for the plaintiff in this case, would be in the realm of compensation.” This charge must be considered not only in the light of the evidence, but also in the light of the fact that plaintiff had averred in his complaint and had contended in his address to the jury that defendant was guilty of gross and wanton negligence in striking plaintiff when he was lawfully walking along the highway. It is crystal clear that there was no gross and wanton negligence, and it is equally clear that the trial Judge’s charge was directed to this contention. Not only did counsel for plaintiff fail to take an exception to this part of the Court’s charge, but the trial Judge called both counsel to side bar following his charge and asked “Now, does counsel for either party have any suggestions, additions, or corrections, amplifications?” Counsel had none. As Chief Justice Jones said: “a party may not sit by silent, take his chances on a verdict, and, if it is adverse, then complain of matter which, if error, could have been eradicated during the trial if brought to the court’s attention properly and timely. Keefer v. Byers [398 Pa. 447, 159 A. 2d 477]; Commonwealth v. Kazmus, 210 Pa. 609, 611, 60 A. 264.” Bell v. Yellow Cab Co., 399 Pa. 332, 338-39, 160 A. 2d 437. '“A proper administration of justice requires that new trials be not granted on errors which counsel had ample opportunity to correct. It is only when errors are basic and fundamental and cannot be corrected at the trial that this Court will consider them under a general exception : Medvidovich v. Schultz, 309 Pa. 450; Whitton v. H. A. Gable Co., 331 Pa. 429.” McDonald v. Ferrebee, 366 Pa. 543, 547, 79 A. 2d 232. Moreover a charge of the Court must be considered in its entirety; isolated portions thereof, even if erroneous, will not justify a new trial unless they constitute basic, fundamental and prejudicial error: James v. Ferguson, 401 Pa. 92, 162 A. 2d 690; McDonald v. Ferrebee, supra; Giannone v. Reale, 333 Pa. 21, 3 A. 2d 331; Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820; Commonwealth v. Clanton, 395 Pa. 521, 151 A. 2d 88; Commonwealth v. Richardson, 392 Pa. 528, 140 A. 2d 828; Commonwealth v. Donough, 377 Pa. 46, 103 A. 2d 694; Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704. Under all the above mentioned facts and circumstances of this case we consider that the words “slightly remiss” in that portion of the charge which related to damages was harmless and not fundamental basic error. We will not reverse the grant of a new trial unless (1) there was a clear abuse of discretion or (2) an error of law which controlled the outcome of the case, and the error is the sole reason for granting a new trial: Muroski v. Hnath, 382 Pa. 233, 139 A. 2d 902; Londrino v. Equitable Life Assurance Society, 377 Pa. 543, 105 A. 2d 333; Fitzpatrick v. Sheppard, 346 Pa. 240, 29 A. 2d 475; Beal v. Beading Co., 370 Pa. 45, 87 A. 2d 214; Sess v. Gusdorff, 274 Pa. 123, 117 A. 671; Samuels v. Johnson, 355 Pa. 624, 50 A. 2d 670; Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857. See also Bell v. Yellow Cab Co., 399 Pa. 332, 334, 343-344, 160 A. 2d 437. The grant of a new trial was under all the circumstances clear error. Judgment reversed and here entered on the verdict for defendant. Italics throughout, ours.

Opinion by Mr. Justice Benjamin R. Jones, At issue herein is the attempted annexation by the Borough of West Conshohoeken (Borough) of a 108 acre tract of land now part of Upper Merion Township (Township), both municipalities being located in Montgomery County. The tract of land sought to be annexed — peninsular in shape and approximately 3700 feet long and 1200 feet wide — is bisected by the Schuylkill Expressway, a four lane limited access highway. To the east of the Expressway lie approximately 44 acres of the land sought to be annexed: this unimproved acreage adjoins the Borough, is owned practically in toto by Philadelphia Electric Company and, by reason of the Expressway, is inaccessible to and isolated from the rest of the land sought to be annexed. To the west of the Expressway lies the balance — approximately 64 acres — of the land sought to be annexed. It consists of a wooded mountainous ridge, running generally north and south, entirely unimproved, except at its base, and is known as Rebel Hill. At its base are some private homes and property owned by Philadelphia Electric Company. The top of Rebel Hill — approximately 45% acres — is owned by “The Easttown Co. and/or John S. Trinsey, Jr.” (Trinsey). It is obvious from the record that the real motive behind this attempted annexation is to afford Trinsey an opportunity to develop the top of Rebel Hill into a self-contained community — four 20 story apartment buildings, a hotel, an office building and a heliport. Although no definite plans for such development appear of record and no assurance is given the Borough that the development will be completed, it is a fact that Trinsey’s approach to the Borough to annex Rebel Hill was made after the Township had refused to rezone this area — an R-2 Residential district — so as to permit this development. On January 28, 1960, ten freeholders — a majority of the freeholders in the area — petitioned the Borough council for annexation of the area. A copy of that petition was served on the Township. On February 4, 1960 the first and second reading of the Borough ordinance of annexation took place and on February 10, 1960, after a third reading, the ordinance was passed by the unanimous vote of the councilmen then present. On February 22, 1960 — at a special council meeting— the burgess of the Borough expressed his intent to veto the ordinance. On March 2, 1960, council, by a 7-2 vote, overrode the burgess’ veto and enacted the ordinance. Thereafter, on March 5, 1960, the ordinance was advertised and, on March 11, 1960, a copy of the ordinance, maps, etc. were certified to the Court of Quarter Sessions of Montgomery County. On April 8, 1960, three of the Township supervisors and five nearby residents of Rebel Hill filed severally two complaints: (1) one complaint asked the court to appoint a board of commissioners to take testimony in connection with the proposed annexation and (2) the other complaint attacked the legality of the ordinance. The annexation petitioners intervened as parties in the litigation. After a full hearing the Court of Quarter Sessions of Montgomery County on January 23, 1961 dismissed the annexation proceeding holding that the ordinance was invalid and that the proposed annexation was not in the public interest. From that order, these eight appeals have been taken. In three respects, the Borough (i.e., the Borough and other appellants) challenge the propriety of the order of the court below: (1) the complaints — filed more than 30 days after passage of the ordinance — were untimely filed; (2) the ordinance was not invalid; (3) the annexation would be in the public interest. The Township (i.e., the Township and its co-appellees) urges the contrary. Were the Complaints Timely Filed? The resolution of this question depends, in the main, upon which statute governs this particular annexation proceeding, The Borough Code or The Second Class Township Act of 1953. It is the Borough’s position that this proceeding is under The Borough Code and not the 1953 Act. Under the Code, there is no specific provision for an attack on an annexation ordinance but an attack on such ordinance may follow the procedure outlined for challenging any ordinance, to wit, an appeal within 30 days of the effective date of the ordinance, and, the Borough argues, since the instant complaints were not filed until April 8, 1960 — 37 days after March 2, 1960 when the Borough alleges this ordinance became effective — the present complaints were filed too late. However, the Township contends: (1) the instant proceedings are under the 1953 Act not The Borough Code and (2) that, even though this proceeding was under The Borough Code, the annexation ordinance, because it was not recorded in the ordinance book within 30 days of its passage, never became effective. The Borough’s position is clearly untenable: nothing could be more evident than that the instant proceeding is under the 1953 Act. The first paragraph of the annexation petition specifically states that the petition is presented “in accordance with the Act of July 20, 1958, P. L. 550”; paragraph 10 states that petitioners have presented a check for $150 to the Borough to compensate the board of commissioners “if such hoard he appointed under Section three of this [1953] Act”; the annexation ordinance recites that the Borough approved the annexation petition, “if the annexation of said territory shall he approved hy the Court of Quarter Sessions ...” a requirement only of the 1953 Act which provides that annexation shall be effective only if the Court of Quarter Sessions enters an order affirming the annexation; the Borough notified the Township of the presentation of the annexation ordinance, a requirement of the 1953 Act and not The Borough Code; paragraph 5 of the Borough’s answer to the complaints admitted that notice of the annexation petition was not advertised as required by The Borough Code (§411) but it was averred “said provision has no application in the present case”. Having committed itself so definitely to the annexation procedure under the 1953 Act, it is incomprehensible how the Borough can now take the position that it proceeded under another act. The Borough’s hindsight cannot avail it in this instance; its commitments have been made and the 1953 Act controls the present annexation procedure. Section 3 of the 1953 Act (53 PS §67503) provides that, if within 30 days after the Borough has certified the annexation ordinance to the court of quarter sessions, a complaint is made to that court concerning the annexation, the court, if satisfied with the legality of the proceeding and the propriety of the annexation as serving the public interests, shall appoint a board of three commissioners. In the case at bar, the Borough certified the annexation ordinance to the court on March 11, 1960, the complaints were filed on April 8, 1960, and, therefore, the complaints were timely filed. In view of our conclusion: we need not decide whether the 1953 Act repealed by implication §§425 and 426 of The Borough Code. Having elected to follow the 1953 Act, the Borough is bound by its provisions even though not to its liking. Is This Annexation Ordinance Invalid? In determining this question, we must construe several sections of The Borough Code which, in this in stance, becomes applicable. Regardless of the annexation procedure adopted, the manner in which a municipality adopts an ordinance, the mode of recordation of such ordinance and the means whereby such ordinance becomes effective are matters determined by the Code applicable to the particular type of municipality; in the case at bar, the provisions of The Borough Code govern such matters. The Borough Code (§1008(a), 53 PS §46008(a)) provides that no ordinance shall be considered in force until it is recorded in the ordinance book of the borough ; that all ordinances shall, within one month after their passage, be recorded by the borough secretary in a book provided for that purpose; that entry of the ordinance in the ordinance book by the secretary shall be sufficient, without the signature of the president of council, burgess or other person. Furthermore, The Borough Code (§1009, 53 PS §46009) provides: “All borough records, required to be recorded or transcribed, shall be deemed valid if typewritten, printed, photo-stated or microfilmed . . .” Since the Borough contends the ordinance was recorded March 2, 1960 and the Township contends such recordation did not take place until after April 5, 1960 — more than 30 days after its passage — the factual background is important. On the evening of April 5, 1960, Mr. Ross, a Township supervisor, accompanied by Mr. Quinlan, Township solicitor, visited the home of Miss Tyson, Borough Secretary. Mr. Ross testified that he was shown the ordinance book but that the annexation ordinance was not set forth therein; that Miss Tyson, at least two or three times, was asked whether the ordinance had ever been recorded in the ordinance book and she gave a negative answer; that there was only a copy of the ordinance in the “Rebel Hill file”, Miss Tyson stating that the original was in the possession of Attorney Talone? the Borough solicitor. Mr. Quinlan testified that there was a copy of the ordinance in the loose leaf folder, identified as “Rebel Hill file”; that the ordinance was not set forth in the ordinance book; that he asked Miss Tyson whether the ordinance had been recorded in the ordinance book and she replied in the negative, assigning as the reason therefor that she was waiting for Attorney Talone to return the original to her. Miss Tyson testified that the ordinance had been assigned No. 33 and that it was inserted by way of a typewritten copy on page 33 of the ordinance book. Miss Tyson further testified that on March 2, 1960 — after she returned home from the council meeting — she stapled a copy of the ordinance in the ordinance book and that it remained stapled in that book until April 5th, 1960 at which time she removed the ordinance from the book preparatory to taking it to a council meeting to be held on April 6th. There were discrepancies in Miss Tyson’s testimony, particularly since on one occasion she stated that she had typed the ordinance in the ordinance book on April 6, 1960, while later she stated she had typed the ordinance on April 9, 1960. There were marks in the ordinance book indicating that something had been stapled to the pages. The testimony is clear that this ordinance was not typed in the ordinance book until April 6 at the earliest, that it was not set forth in the book on the evening of April 5, 1960 and that, prior to April 5, 1960, it had been stapled in the book. Under such circumstances, was there a valid recordation or transcription of this ordinance in the ordinance book within the provisions of The Borough Code? The Borough argues that stapling an ordinance in an ordinance book is a recording in the legislative sense and that recording is not to be used in the narrow sense of transcription. “Stapling” is certainly not “typewritten, printed, photostated or microfilmed”. The essential purpose behind the legislative provisions providing for recordation is that the ordinance be so entered in the ordinance book to insure a permanency of its preservation and the prevention so far as possible of its removal from the book. Whether printed, typewritten, photostated or microfilmed copies of the ordinance be affixed or attached to the pages of the book by paste, staples, clips, or otherwise, gives no assurance that the ordinance will be permanently preserved or not removed from the book. The legislature has indicated printing, typewriting, photostating or microfilming are permissible methods of recordation or transcription; it has not indicated that the affixation or attachment of ordinances so reproduced meet the legislative mandate and that stapling of such ordinance is to be countenanced. The instant record graphically portrays the evil sought to be avoided by the legislature. When an examination of the Borough’s ordinance book took place — ■ 34 days after passage of the ordinance — the uncontradicted evidence is that the ordinance was not in the book, having been removed, according to Miss Tyson, to take to a council meeting. Had the legislative mandate been observed, the ordinance would have been in the book in permanent form, subject to removal only by doing away with the book or the pages on which the ordinance was recorded or transcribed. The instant ordinance was not recorded, in the legislative sense, within 30 days of its passage and, therefore, is invalid. Amicus curiae argues that an ordinance of annexation is not legislative in character and, therefore, not within the orbit of §1008(a). That section provides that “No ordinance, or resolution of a legislative char acter, in the nature of an ordinance, shall be considered in force until the same is recorded in the ordinance book of the borough . . .” The wording of §1008(a) clearly reveals that the phrase “of a legislative character” is in qualification of the word “resolution” and not the word “ordinance”. Were it otherwise, the qualifying phrase “in the nature of an ordinance” would qualify not only the word “resolution” but also the word “ordinance”, an absurd result and contrary to the clear grammatical construction of the legislative language. Every ordinance, regardless of its character, is subject to the requirements of §1008 (a). Castle Shannon Borough Annexation Case, 160 Pa. Superior Ct. 475, 51 A. 2d 526, in no manner conflicts with our interpretation of §1008(a). Is This Annexation in the Public Interest? Under the 1953 Act (§3) the appointment of a board of commissioners as a fact-finding body takes place only if the court of quarter sessions is satisfied with the legality of the annexation petition and the “propriety” of the annexation as serving public interests. Assuming, arguendo, the legality of this annexation proceeding, was the court below correct in finding that this annexation did not serve the public interests? The 1953 statute does not provide for an appeal from the decision of the court of quarter sessions. Under such circumstances, our scope of review is on broad certiorari: Bell Appeal, 396 Pa. 592, 609, 610,152 A. 2d 731, and cases therein cited. On broad certiorari, we “look beyond jurisdiction of the court below and regularity of the proceedings to determine, by examining the testimony, whether the findings are supported by evidence or whether the court was guilty of an abuse of discretion in such connection or an error of law”: Bell Appeal, supra (p. 611). We do not, however, weigh the evidence or substitute our discretion for that of the court below. The court below, after taking extensive testimony, made certain findings: “The tract is presently undeveloped in large part and is zoned R-2 Residential under the Upper Merion Township Zoning Ordinance. Access to the area is now available only over narrow township roads, inadequate to carry any increase in traffic burden. Route 23, a state highway with a cart-way width of approximately twenty feet and the railroad right of way of the Philadelphia Suburban Transportation Company skirt the southerly edge of the tract. A short distance to the east, paralleling the easterly border of the tract, is Matson Ford Road, another state highway. “No public sewage disposal system serves the tract or the surrounding area. The nature of the terrain is such that surface drainage from the tract flows eastwardly and southerly to natural streams which are and would remain in Upper Merion Township. These streams find their way through the Borough and empty into the Schuylkill River. In its present state, the property is largely covered with trees and brush, which absorb most of the surface water. “It is a matter of public knowledge and a part of the record of this case that the motivating force behind the annexation petition was Mr. John Trinsey and his associates, incorporated as Rebel Hill Park, Inc., hereinafter referred to as Trinsey. Trinsey proposes to erect four ‘high-rise’ apartment buildings, containing a total of approximately one thousand units, an office building of twenty stories, and a hotel building on part of the instant tract. In addition to normal facilities of such structures, it is proposed to include stores, restaurants, a theater, a bowling alley, and a heliport as part of this project, the goal being a ‘self-contained community.’ “This project was first presented to the Board of Supervisors of Upper Merion Township. The Board declined to rezone the tract to permit such a project. Trinsey, being dissatisfied, then was instrumental in framing the petition for annexation to the Borough Council of West Conshohocken. “. . . that the township authorities have spent considerable time and public funds in planning the most appropriate use of the instant tract. Undoubtedly, the nature of the terrain, its drainage pattern, lack of public sewage facilities, absence of adequate access roads, inadequacy of existing state highways, and division of the tract by the Expressway, raise difficult planning problems. Nevertheless, the testimony is equally clear that the members of Borough Council whose affirmative votes approved the annexation petition gave next to no consideration to any of these vital problems. “Council gave no consideration to sewage disposal from the projected ‘high-rise’ development, adequate police protection to the acquired area, future traffic congestion, projected cost of public sewage collection and treatment for the Borough, the proportion of this cost which the developers of the instant tract would undertake, the locations available for erection of a sewage treatment plant, the cost or location of access roads to the tract, or the cost of providing police and fire protection to the proposed development. Indeed, all that Council did consider seems to have been that existing Borough revenue of about $34,000 would be augmented by a projected increase of $168,000, if the property were developed as proposed. “It would serve no purpose but to extend the length of this opinion to review the testimony of other Borough officials. A summary of their statements reveals that the Borough has no zoning ordinance and none is pro posed, that the Council was never told who owned the major portion of the tract in question, and that there is no assurance that the proposed project will be erected as planned either in part or as a unified whole. “When we add to these considerations the peninsular nature of the aféa to be annexed, creating a ‘panhandle’ of sizeable proportions which juts into Upper Merion Township and geographically isolates lands which would remain part of that township, it becomes clear that the proposed annexation would be to the eventual benefit of neither municipality. Access to the tract, drainage from it, and even the projected location of principal sewer lines aré and must remain through Upper Merion Township. Indeed, Belfont Avenue, the street forming the approximate southern boundary of the area to be annexed, would be partially in West Conshohocken and partially in the township. Following approval of annexation, access to the tract for police and fife protection would remain only over highways located in the township. “We are also impressed by the absence of land use regulation in the Borough of West Conshohocken. Were this annexation to be approved, the Borough authorities would be powerless, except throiigh their Building Code, to restrict the use of the tract in question. In lieu of such control, they have adopted the verbal assurances of the prospective dévelopers, whose plans are not in. final form and could be modified to suit available financing of, indeed, abandoned entirely. “We regard the wise use of zoning regulation as the chief bulwark protecting propefty owners in their investment. The actual and prospective growth rate in population of this County and the consequent diminution of available vacant ground forecloses any other view. We cannot regard as proper the deliverance of a tract the size of that here in question, geographically dominating large parts of West Conshohoeken, Upper Merion Township, and Lower Merion Township, into a municipality without land use regulations. “We are also satisfied, and so find, that the annexation will not serve the best interest of the public and is contrary to the health, safety and welfare of the public and that the disadvantages which go with the proposed annexation far outweigh any alleged advantage to the Borough or its citizens. “When the moving force behind this annexation was refused permission by Upper Merion authorities for a change of zoning, he prevailed upon the Borough to pass the annexation ordinance over the veto of the Burgess. Neither he, nor any of the freeholders in the territory to be annexed appeared as witnesses to testify in favor of the annexation. Upper Merion Township has made an intensive study of this land over a period of years and the Borough had made no study or planning. . . . “The proposed annexation would create substantial geographic, traffic, road and access, police and fire protection, drainage, sewerage and disposal, and zoning problems which convinces us that the proposed annexation must be denied.” We have carefully examined this record; from such examination we are fully convinced that the findings of the court below are supported by the evidence and that the court committed neither an abuse of discretion nor an error of law. Order affirmed. Costs on John, S. Trinsey, Jr., and/or the Easttown Co. Mr. Justice Musmanno dissents. The annexation of this portion of the land appears meaningless to the Borough. The only suggested reason is that this portion of the land is adjacent to the Borough and, by its inclusion in the annexation proceedings, it can be claimed that the entire tract is adjacent to the Borough. As portrayed to the Township the development was a $30,-000,000 project; as now portrayed, it is a $10,000,000 project. The State Association of Boroughs appeared and was permitted to argue as amicus curiae. Act of May 4, 1927, P. L. 519, §§425, 426, as amended, 53 PS §§45425, 45426. Act of July 20, 1953, P. L. 550, §1 et seq., 53 PS §67501 et seq. Continuous, though erroneous, reference is made in the Borough’s brief to the 1953 Act as part of The Second Class Township Code. The Act known as “the Second Class Township Code” is the Act of May 1, 1933, P. L. 103, as amended, 53 PS §65101, whereas the 1953 Act is “An Act providing for and regulating the annexation of parts of a second class township to boroughs, cities and townships” and is not part of The Second Class Township Code. There is no provision in The Borough Code for any such payment. The Borough Code provides that annexation shall become effective upon the valid enactment of an ordinance by the borough council, providing a certified copy of the ordinance be filed in the Court of Quarter Sessions and notice given to the county board of elections. In. the instant case, notice was not given to the county board of elections until February 11, 1961, nineteen days after the Court of Quarter Sessions had entered its order refusing annexation. In this connection, it should be noted that Miss Tyson later stated the number was 233, although neither the original nor the copy of the ordinance bore any number.

Opinion by Me. Justice Eagen, This is a real estate tax assessment case. Total exemption from all real estate taxation is sought by the appellant, the Woods Schools, on the ground that it is a “purely public charity.” Woods Schools is a nonprofit corporation which maintains and operates a private institution in Bucks County, Pennsylvania, for the education, treatment and care of children and adults, who are physically, mentally, socially or emotionally handicapped. Its real estate holdings presently include over 326 acres of land improved with approximately 80 buildings. The institution seeks the fullest development and rehabilitation of its pupil-patients by maintaining a campus which is self-sufficient, and a group of separate, self-contained schools and treatment units. A large staff of professional specialists, physicians, physical therapists and the like are continuously retained. The school was originally founded in 1915, by Miss Mollie Woods (later Mrs. Hare), and conducted as a private business. In 1942, it was incorporated as a private business corporation. Mrs. Hare was its sole shareholder and president. In 1949, the school was incorporated as a nonprofit corporation. Mrs. Hare then transferred the assets of the business corporation to the nonprofit corporation in consideration for the promise that she would be paid the sum of $15,000 annually for life (she died in 1956), and also provided with a house fully furnished and maintained, plus food, and all conveniences necessary for a reasonably good standard of existence. The new corporation also assumed the obligation of payment of current liabilities of the business in the amount of $64,401.77, and a debt due Mrs. Hare in the amount of $168,509.66. In 1958, the corporation constructed and established a Child Study, Treatment and Research Center costing $655,789.15. The money necessary consisted of a construction grant from the federal government in the amount of $176,250, a gift from the school’s accumulated surplus fund in the sum of $185,000 and gifts from interested individuals and organizations in the amount of $294,539.15. Real estate taxation was paid without protest until 1959, at which time the corporation applied to the proper municipal authorities for total real estate tax exemption on all lands and buildings occupied and utilized by the school and the research center. The request was denied. On appeal to the common pleas court, a decree was entered which ruled the land (176 acres) and the building used in connection with the research center, plus 20 acres of adjoining land as a reasonable curtilage, to be exempt. The tax assessment levied against the land and buildings of the school itself was upheld. An appeal to the Superior Court resulted in an affirmance of the lower court’s decree, 195 Pa. Superior Ct. 531 (1961). We granted allocatur. The legal question presented is, whether the Woods Schools, that is both the school and the research center, is a “purely public charity” and founded and maintained to a sufficient degree by public or private charity to entitle it to tax exemption under Art. 9, §1, of the Pennsylvania Constitution and Art. II, §202 of the Act of May 21, 1943, P. L. 571, 72 PS §5453.202. It is a mixed question of law and fact. The pertinent section of the Act of 1943, supra, provides as follows: “The following property shall be exempt from all county, borough, town, township, road, poor . . . and school tax, to wit: ... (3) All hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity: Provided, That the entire revenue derived by the same be applied to the support and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purpose.” Constitutional authority for the enactment of such legislation exempting from taxation “institutions of purely public charity” is given by Article 9, §1, of the Constitution of Pennsylvania, which reads as follows: “. . . the General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, institutions of purely public charity and real and personal property owned, occupied, and used by any branch, post, or camp of honorably discharged soldiers, sailors, and marines For the appellant to obtain the claimed exemption from taxation, it must affirmatively show that the entire institution, (1) is one of “purely public charity”; (2). was founded by public or private charity; (3) is maintained by public or private charity. The record clearly sustains the finding of the lower court that the school was founded in charity and made possible in great part by the charitable beneficence of Mrs. Hare. In fact, the net effect of the transaction, involving the transfer of the assets of the business corporation owned by Mrs. Hare to the new nonprofit corporation, was an outright gift in the sum of approximately $500,000. As of that time, the corporation had a net worth of $458,396.45 and its accumulated surplus amounted to $358,396.45. We agree with the conclusion of both lower courts that the school section which concerns itself with the education, care and treatment of its pupil-patients is, in fact, a separate and distinct entity from the research center. While the research center, undoubtedly, benefits from the proximity of the school and the living cases it affords for study, the record fully justifies the conclusion that the work and basic purposes of each are not so closely related or interdependent, as to have a tax exemption given to one carry-over to the other. We further agree that the appellant has not met its burden of establishing that the school and treatment unit itself is one of “purely public charity” or is maintained by charity. There are approximately 400 individuals enrolled in the school and treatment unit. Admission is not restricted on the basis of religion, color or creed. However, it is restricted in almost total part to those who are able to pay for the services rendered. The average tuition presently charged is $4,581.87 per individual. It is charged to all, regardless of the ability to pay. It is fixed to carry the operating costs for the entire institution, both school and center. Additional charges are made for psychological and physical therapy, special medicines, music lessons, etc. No student attends free of all charges. Partial scholarships in the form of deductions from the gross tuition are given. In the usual year, such scholarship deductions allowed by the school itself amount to 1.0% of the total tuition received and are distributed among 2% of those enrolled. Donations in relatively small amounts are allocated for scholarship purposes, but with these added to the allowances given by the school, the total amount given in partial scholarships is less than 2% of the total tuition income. In 1958, the total operating revenues of the institution amounted to $1,575,785. For the five-year period of 1954-1958 (it was stipulated that this .period provides a good example of operation), the total operating revenues exceeded the total operating costs (including payment of annual real estate taxes of approximately $13,500) of the entire institution in the amount of $468,478. If total depreciation, as claimed in an amount averaging $60,000 annually, is allowed and added to operating costs, the income still exceeded this combined total in the amount of $163,283. In 1959, the institution’s net worth had increased to $1,438,193.99. The indebtedness assumed by the corporation as of the date of the transfer of assets by Mrs. Hare, had been completely paid off and the indebtedness due Mrs. Hare personally had been liquidated to the extent of $118,470. All of the excess revenue together with substantial private donations and public grants are used in the improvement and expansion of the institution’s facilities. No one has derived pecuniary benefit therefrom. The institutions’s operations are governed by a board of trustees who serve without remuneration. The 400 or more employees, professional and nonprofessional, are paid salaries or wages comparable with other institutions. During the four-year period of 1955-1958, inclusive, a total contribution of $100,000 at the rate of $25,000 yearly was made to the employes’ pension plan and charged to operating expenses. Under the facts, we conclude that the Ogontz School Tax Exemption Case, 361 Pa. 284, 65 A. 2d 150 (1949), is controlling. While it is true that this Court properly found therein that the institution concerned was not founded in charity and in reference to these facts, the case is distinguishable, it also clearly enunciated the principle that even an institution of learning must possess an eleemosynary characteristic if it is to be deemed benevolent and charitable for tax exemption purposes. As stated at page 292, “An institution whose free patrons number only about 10% of all its patrons cannot be classed as an institution of purely public charity.” Again, at page 295, the Court said, “With exceptions so negligible as not to be a controlling factor in our decision, what this School does for its students is not done free of charge or so nearly free of charge as to make those charges merely nominal. Certainly the students who pay $1,900 a year for the education and board and lodging they receive at this School cannot (and assuredly do not) regard themselves as objects of charity.” In short, Ogontz emphasized that a school to qualify as a “purely public charity” must donate or render gratuitously a substantial portion of its educational services. This same thinking was re-emphasized later in Hill School Tax Exemption Case, 370 Pa. 21, 87 A. 2d 259 (1952). It is quite evident that the school and treatment unit of the appellant’s institution does not meet this test. In fact, a portion of the charges exacted from the enrollees of the school are used for the operation and improvement of the center which is separate and apart. The fact that the school was chartered as a nonprofit corporation and no one receives profit from its operation does not in itself clothe the school with exemption from taxation, Ogontz, supra. We further agree with the learned courts below that the Hill case does not overrule or modify Ogontz. In Hill, the school operated at a loss for 26 out of the 29 years of its existence. Forty-nine per cent of its students received tuition aid. The total operating revenues covered only 82% of the cost of operation. Nor is Episcopal Academy v. Philadelphia, 150 Pa. 565, 25 Atl. 55 (1892), to be equated with the facts herein. The tuition charged in that academy was much less than the tuition charged by comparable institutions. Eight per cent of the students paid one-half of the regular tuition and 9% paid no tuition at all. In other words, the institution utilized the excess income realized over operating costs in making its services available to as great a number of students as possible and particularly to a large number unable to pay their own way. It is true that a “purely public charity does not cease to be such where it receives some payment for its services.” Hill, supra, at page 27. It is also true that this'is-so even though the revenue-received-is sufficient to meet the cost of operation, Episcopal Academy v. Philadelphia, supra. However, as stated in Ogontz, supra, the institution to retain this characteristic must be managed as a charity in the sense that all benefits within reasonable limits are afforded to others who gain advantage of the service rendered by that institution through the wise application of the profits realized from tuition charges. Certainly, the profits may not be used to enhance another institution which is separate and apart. The contention that in evaluating the institution’s yearly budget the fair rental, value of the buildings as donated properties should be included, in addition to total depreciation of the same buildings, is without merit. The order of the Superior Court is affirmed. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent. It is interesting to note that Miss Woods original investment was $175. The record seems clear that virtually all of appellant’s non-charitable income is derived from its pupils and the school operation. No significant part is earned from the operation of the center. The latter two combined during the period of 1954-1958 totaled $626,000. The lower court properly concluded that the use made of these item? was for the benefit of the center only.

OPINION NIX, Justice. Appellant, Joseph Dussia, a Lieutenant Colonel of the Pennsylvania State Police presently under suspension, instituted an action in equity in the Commonwealth Court seeking permanent injunctive relief from his pending court-martial. The action was instituted against James D. Barger, the Commissioner of the Pennsylvania State Police Department, and the individual members of the Court-Martial Board. The court-martial proceeding had been instituted by the Commissioner for the purpose of considering certain improprieties allegedly committed by Dussia in the performance of his duties. In the event the charges are established the Board would have the option to recommend to the Commissioner that Dussia be discharged or demoted in rank. In the event of his exoneration the Board would be empowered to recommend reinstatement with back pay. The Commonwealth Court sitting en banc denied appellant’s request for injunctive relief and this appeal followed. A number of assignments of error have been raised and will be treated ad seriatim. Appellant first asserts that his constitutional right to a fair hearing will be denied if the court-martial proceedings are permitted to continue because of the Commissioner’s bias against him. The testimony pertaining to this point focused upon the content of a telephone conversation between the Commissioner and appellant. Although appellant’s version of the conversation would tend to indicate that the Commissioner was biased against him, the Commonwealth Court found the Commissioner’s representations to the contrary more credible. The court below concluded that Barger’s statements were “only an effort to apprise the appellant that there was evidence against him and to suggest that resignation should be considered.” They found that the record failed to establish that Barger had, in fact, formed an opinion as to appellant’s guilt or innocence and, therefore, could objectively perform his function. While the record presents a close question as to whose version is correct we believe the findings of fact made by the Commonwealth Court are supported by adequate evidence and, thus, will not be disturbed on appeal. Snow v. Corsica Construction Company, 459 Pa. 528, 329 A.2d 887 (1974); Berkowitz v. Mayflower, 455 Pa. 531, 317 A.2d 584 (1974); Anthony v. Perose, 455 Pa. 233, 312 A.2d 360(1973); Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969); Hankin v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968). Appellant next asserts that Section 711 of the Administrative Code is an unconstitutional delegation of power by the legislature because it fails to provide any legislative standards to guide the Commissioner in the performance of the duties provided for therein. We do not agree. In Ruch v. Wilhelm, 352 Pa. 586, 43 A.2d 894 (1945) this Court was called upon to consider an earlier version of Section 711 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, Act of June 29, 1937, P.L. 2436. That section provided that the Commissioner establish rules and regulations for the filing and hearing of charges against members of the state police. There we noted the existence of the power of the Commissioner under common law to remove any employee within the department at his pleasure either for cause or without cause. “Under the common law, therefore, they are subject, like all other Commonwealth employes, to removal at the pleasure of the appointing power, either for cause or without cause, unless there is legislative provision to the contrary.” Id. at 588-89, 43 A.2d at 895. (Footnote omitted) We held that the language of 711 would not be considered as a legislative attempt to confer tenure upon state police employees and that the Commissioner had an option to either exercise his common law right or to employ the procedures set forth in the regulations promulgated pursuant to 711. This decision is significant in our present inquiry in that it establishes that at the time of the most recent amendment of 711 the Commissioner still possessed his unfettered power to discharge at his pleasure. It is therefore apparent that the subsequent amendment, rather than being an unlawful delegation as charged, is in fact, a restriction by the legislature of a previously absolute common law power. In the current version of 711 the legislature has established standards for the Commissioner. In this context he was required to make rules and regulations to govern the conduct of all personnel, supply any member who is accused of violating those proscriptions with a detailed written statement of the charges against him, and to appoint a court-martial board consisting of three commissioned officers. As we explained in Chartiers Valley Joint Schools v. Allegheny County Board of School Directors, 418 Pa. 520, 211 A.2d 487 (1965), it is generally agreed that the nondelegation principle does not require that all details of administration be precisely or separately enumerated in the statute. The legislature can delegate power when it establishes general standards according to which that power must be exercised. Chartiers Valley Jt. Schs. v. Allegheny Co. Bd. of School Directors, supra; Pennsylvania Water & Power Resources Board v. Green Spring Co., 894 Pa. 1, 145 A.2d 178 (1958); Belovsky v. Redevelopment Authority, 357 Pa. 329, 54 A.2d 277 (1947). More importantly, the doctrine of legislative delegation sought to be invoked by appellant is here inapplicable because this section did not represent a grant of power by the legislature but rather a limitation upon the Commissioner’s common law power. Finally, we turn to appellant’s last contention that Section 711 of the Administrative Code as implemented by State Police Field Regulation 3.03-E creates an unconstitutional commingling of functions in the Commissioner. We agree. Under 711 of the Administrative Code, supra, the Commissioner is vested with the obligation to determine the guilt or innocence of the accused employee and to determine the sanction to be imposed. The recommenda tions of the board are only that. The ultimate judicial determination as to guilt or innocence is exclusively within the discretion of the Commissioner. Even accepting the view of the Commonwealth Court that the Commissioner is bound by the record of the court-martial board, he is still the ultimate arbiter in each case. In addition to this judicial function State Police Field Regulation 3.03-E vests the Commissioner with the responsibility of determining when a disciplinary board is to be convened. State Police Field Regulation 3.03-E provides in pertinent part: “1. A Disciplinary Board comprised of three Area Commanders shall be appointed by the Commissioner to review recommendations for Court-Martial. The senior officer shall act as chairman. “2. The Board shall convene q,t the direction of the Commissioner and shall be responsible to him for conducting an objective review of all cases that he may refer to it. “3. No Area Commander shall sit as a member of a Board reviewing the case of an individual serving under his Area Command. “4. The Board shall function in an advisory capacity only. “5. The Board shall prepare a report for the Commissioner which presents a summary of the essential facts and recommended action to be taken. “6. When an unanimous decision cannot be reached, separate reports shall be prepared.” (Emphasis supplied.) Although the disciplinary board reviews the facts to determine whether or not they justify the initiation of court-martial proceedings, here again, their decision is only advisory and the Commissioner must make the ultimate decision as to whether a court-martial board should be appointed. The convocation of the disciplinary board pursuant to paragraph 2 of Regulation 3.03-E or the initiation of criminal proceedings is a classic prosecutorial function. The American Bar Association Standards For Criminal Justice: The Prosecution and the Defense Function provide: 3.4 Decision to charge. (a) The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor. (b) The prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted. (c) Where the law permits a citizen to complain directly to a judicial officer or the grand jury, the citizen complainant should be required to present his complaint for prior approval to the prosecutor and the prosecutor’s action or recommendation thereon should be communicated to the judicial officer or grand jury. ABA Standards For Criminal Justice: The Prosecution and the Defense Function, 3.4, approved draft (1971). Thus, as appellant contends, § 711 and Regulation 3.03-E create an unconstitutional commingling of judicial and prosecutorial functions in the Commissioner. In Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) the Court considered the question of whether administrative hearings in deportation proceedings had to conform with the requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. § 1001 et seq. In the deportation proceedings before the Court, investigators decided cases which were similar to those which they investigated and prosecuted. The United States Supreme Court condemned this proceeding even though the investigators were not sitting in judgment in cases where they actually participated in the prosecution. The Court set forth an extensive analysis of the legislative history and purposes be hind the Administrative Procedure Act. It cited the report of the President’s Committee on Administrative Management 36-37 (1937): “The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible. “Furthermore, the same men are obliged to serve both as prosecutor and as judges. This not only undermines judicial fairness; it weakens public confidence in that fairness.” 339 U.S. at 42, 70 S.Ct. at 450. The Court also noted the report of the Attorney General’s Committee on Administrative Procedure: “These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable.” 339 U.S. at 44, 70 S.Ct. at 451. In holding that deportation proceedings must conform to the requirements of the Administrative Procedure Act, the Court explained one of the principal administrative evils the Act sought to cure: More fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. 339 U.S. at 41, 70 S.Ct. at 450. The Court added: A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. 339 U.S. at 44,70 S.Ct. at 451. In In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L. Ed. 942 (1955), the Court considered a Michigan law which authorized any judge of its courts of record to act as a so called “one man grand jury.” After indicting a defendant in his role as a one man grand jury the judge might then appear as the defendant’s trial judge. In striking down the statute as a violation of the defendant’s right to due process the Court explained: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. . This Court has said . . . that ‘Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.’ Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749.” 349 U.S. at 136, 75 S.Ct. at 625. In Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961), we invalidated on constitutional grounds procedures of the Committee on Offenses of the Court of Common Pleas of Allegheny County which combined prosecutorial and j udicial functions. There we noted: The functions of prosecutor, judge and jury were combined in one body, namely, the Committee on Offenses, which lodged and prosecuted and, through its Subcommittee of three of its own members, adjudicated the charge of unprofessional conduct whereon the Court of Common Pleas, without any hearing of wit nesses, ultimately entered the order disbarring the appellant. 404 Pa. at 597,172 A.2d at 840. After citing the language quoted above from In re Murchison, supra, we added: “Moreover, a predilection to favor one side over the other is not required in order to vitiate a judicial proceeding as being violative of due process. Merely, “a possible temptation to the average man as a judge . not to hold the balance nice, clear, and true” is sufficient. Such “a possible temptation” was implicit in the proceeding before the prosecutor’s own Subcommittee which resulted in appellant’s disbarment.” 404 Pa. at 598,172 A.2d at 841. More recently, in Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969), we reaffirmed our holding in Schlesinger Appeal, supra, noting that, “[a] man cannot sit as judge when he is a member of a board which has brought the accusations.” 434 Pa. at 130, 252 A.2d at 706. While in the instant case the Commissioner did not in fact have the responsibility of the entire prosecutorial role, we do not believe that this fact alone is sufficient basis for distinguishing the instant case from the authorities cited Supra. The decision to institute a prosecution is such a fundamental prosecutorial function that it alone justifies concluding a dual capacity where the individual also is charged with the responsibility of making the ultimate determination of guilt or innocence. Moreover, it is a decision which requires a judgment as to the weight of the evidence against the accused, a judgment which is incompatible with the judicial function of providing an impartial forum for resolution of the issues presented. We therefore conclude that 711 as implemented by State Police Field Regulation 3.03-E creates an impermissible commingling of functions which is constitutionally prohibited. In view of our finding that 711 of the Administrative Code is not in itself inherently deficient and that the constitutional objection occurs only as a result of its implementation by Regulation 3.03-E it is not necessary to invalidate this section of the statute. We do, however, determine that Regulation 3.03-E is invalid and that this proceeding which has transpired pursuant to it is necessarily void. For this reason we must grant appellant’s request for injunctive relief. Further since the Commissioner is statutorily mandated to make the ultimate decision of guilt or innocence in proceedings against State Police personnel we believe that it is necessary that the injunction be permanent in nature. The reason for this conclusion is that since the Commissioner has now exercised the offensive prosecutorial function any subsequent judicial decision by him with reference to these charges would be tainted. Order of the Commonwealth Court reversed. Permanent injunction granted. Each party to pay own costs. JONES, C. J., and POMEROY, J., concur in the result. . In its opinion the Commonwealth Court explained that it accepted the Commissioner’s version because it was corroborated by another commissioned officer in the department who was present in the Commissioner’s office at the time of the call. Ad ditionally the Commonwealth Court was impressed by the fact that the former cordial relationship between the parties would seem to contradict the hostility suggested in appellant’s version, particularly in absence of any showing of a reason for a change in that relationship. . Section 711 provides: § 251. (Adm.Code § 711). Commissioner of Pennsylvania State Police (a) The Commissioner of Pennsylvania State Police shall be the head and executive officer of the Pennsylvania State Police. He shall provide, for the members of the State Police Force, suitable uniforms, arms, equipment, and, where it is deemed necessary, horses or motor vehicles, and make rules and regulations, subject to the approval of the Governor, prescribing qualifications prerequisite to, or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force; for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation of the State Police Force. The commissioner shall maintain a training school, to be known as the Pennsylvania State Police Academy, for the proper instruction of members of the State Police Force, which shall be situated at such place or places as the commissioner, with the approval of the Governor, may determine. It shall also be the duty of the commissioner to establish local headquarters in various places, so as best to distribute the force through the various sections of the Commonwealth where they will be most efficient in carrying out the purposes of this or any other act to preserve the peace, prevent and detect crime and to police the highways. (b) (1) Before any enlisted member who has not reached mandatory retirement age is dismissed or refused reenlistment by the commissioner, the commissioner shall furnish such enlisted member with a detailed written statement of the charges upon which his dismissal or refusal of reenlistment is based, together with a written notice, signed by the commissioner or the proper authority, of a time and place where such enlisted member will be given an opportunity to be heard either in person or by counsel, or both, before a Court-martial Board appointed by the commissioner. The board shall consist of three commissioned officers. The hearing shall not be sooner than ten days nor later than thirty days after such written notice. At such hearing all testimony offered, including that of complainants and their witnesses as well as that of the accused enlisted member and his witnesses, shall be recorded by a competent stenographer whose services shall be furnished by the Pennsylvania State Police at its expense. Any such hearing may be postponed, continued or adjourned, by agreement of the person charged and the Court-martial Board with approval of the commissioner. If such hearing is postponed, continued or adjourned and any testimony has been taken, then a free copy of a transcript of such testimony shall be given to the accused, if he makes a request therefor. (2) The Court-martial Board shall have power to issue subpoenas requiring the attendance of witnesses at any hearing and shall do so at the request of the party against whom a complaint is made. If any person shall refuse to appear and testify in answer to any subpoena issued by the board, any party interested may petition the court of common pleas of the county wherein the hearing is to be held setting forth the facts. The court shall thereupon issue its subpoena commanding such person to appear before the Court-martial Board, there to testify as to the matters being inquired into. Any person refusing to testify before the Court-martial Board may be held for contempt by the court of common pleas. All testimony at any hearing shall be taken under oath and any member of the Court-martial Board shall have power to administer oaths to such witnesses. After fully hearing the charges or complaints and hearing all witnesses produced by the Court-martial Board and the person against whom the charges are pending and and after full, impartial and unbiased consideration thereof the Court-martial Board shall, by a two-thirds vote of all members thereof taken by a close-secret vote and the total results thereof to be recorded, determine whether or not such charges or complaints have been sustained and whether the evidence substantiates such charges and complaints, and in accordance with such determination, shall recommend the discharge, demotion or refusal of reenlistment of such enlisted member to the commissioner. If one member of the Court-martial Board shall dissent from the findings of the other members, he may state his reason for disagreement which shall be made a part of the record. Reports of the findings of the Court-martial Board shall not be made public before acted upon by the commissioner. The Court-martial Board shall submit all records of the trial to the commissioner for review. A written notice of any decision of the commissioner discharging, demoting or refusing the reenlistment of any member, together with a free copy of a transcript of the notes of testimony, shall be sent by registered mail to the enlisted member at his last known address within thirty days after the hearing is actually concluded. The commissioner may, in his discretion, follow or disregard the recommendations of the Court-martial Board. In all cases where the final decision is in favor of the enlisted member, the records in the files of the Pennsylvania State Police shall show accordingly. (3) In case the enlisted member concerned considers himself aggrieved by the action of the commissioner, an appeal may be taken by him to the Court of Common Pleas of Dauphin County in accordance with the provisions of the act of June 4, 1945 (P.L. 1388), and its amendments, known as the “Administrative Agency Law.” (4) For the purposes of this subsection (b), the term “enlisted member” shall not include a cadet or trooper of the Pennsylvania State Police with less than eighteen months of service. Administrative Code, Act of April 9, 1929, P.L. 177, art. VII, § 711, as amended Dec. 5, 1967, P.L. 671, § 1, 71 P.S. § 251 (Supp. 1974-75). . The Commissioner of Pennsylvania State Police shall be the head and executive officer of the Pennsylvania State Police. He shall provide, for the members of the State Police Force, suitable uniforms arms, equipment, and where it is deemed necessary, horses or motor vehicles, and make rules and regulations, subject to the approval of the Governor, prescribing qualifications prerequisite to, or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force; for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation of the State Police Force. The commissioner shall maintain a training school, to be known as the Pennsylvania State Police Academy, for the proper instruction of members of the State Police Force, which shall be situated at such place or places as the commissioner, with the approval of the Governor, may determine. It shall also be the duty of the commissioner to establish local headquarters in various places, so as best to distribute the force through the various sections of the Common wealth where they will be most efficient in carrying out the purposes of this or any other act to preserve the peace, prevent and detect crime and to police the highways. 1929, April 9, P. L. 177, art. VII, § 711; 1937, June 29, P.L. 2436, § 1; 1943, April 28, P.L. 94, § 4; 1959, June 29, P.L. 488, § 1. . In their opinion the Commonwealth Court relied on an earlier decision by President Judge Bowman while a judge of the Court of Common Pleas of Dauphin County, Pennsylvania State Police v. Weichman, 86 Dauphin 323 (1966). There Judge Bowman decided that the Commissioner was bound by the record of the court-martial board in making his ultimate decision. We note that the issues presented in that decision have never been considered by this Court and in view of our decision today we need not reach them here. . Appellant also argues that his present suspension is illegal because he is being denied pay without an advanced written notice or an opportunity to respond to the proposed adverse action. We need not reach this question because under the relief granted in our decision today the propriety of the suspension becomes a purely academic question. . Nor do we accept the Commonwealth Court’s attempt to analogize the instant factual situation with our relationship to our Dis ciplinary Board. This analogy is faulty. The Disciplinary Board of the Supreme Court is a standing board which deals with any and all cases arising during its tenure and the Supreme Court takes no action in a given case other than to receive and consider the reports of that board. . In its opinion the Commonwealth Court found no merit to appellant’s contention that due process was offended by convening a court-martial board comprised of members junior in rank to him. Our failure to discuss this claim is occasioned by appellant’s failure to raise this argument in this appeal and does not represent our agreement or disagreement with the Commonwealth Court’s resolution of the issue.

Tilghman C. J. This is an action on the case for money had and received, brought by the widow of John Wilson senior, against the executor of her husband’s will, to recover her share of her husband’s personal estate. The defendant makes two objections to the plaintiff’s recovery. 1. That an action for money had and received does not lie in this case. 2. That all that part of the testator’s personal estate, not disposed of by the will, is vested in his executor for his own use. 1. The first objection is founded on the impropriety of making the executor personally responsible for property which came to his hands as executor, and cases were cited to shew, that in England an action for a legacy will not lie against an executor, unless he has made an express promise ' to pay it. But these cases establish.no principle sufficient to bar the plaintiff’s action. The courts of common law in England, have no jurisdiction in cases of legacy, and therefore nothing less than an express promise will support an action. But in this state, where we have neither ecclesiastical courts, nor a court of chancery, the case is different. We have recourse to the courts of common law from necessity. For although the Orphan’s court may iriforce their decrees by attachment, yet that is but an imperfect remedy. These considerations induced the legislature of Pennsylvania long ago, to pass an act for the recovery of legacies in the common law courts; and the courts have thought themselves justified in supporting an action in a case like the present, which is not a demand for a legacy, but for the share which belongs to the wife on a partial intestacy of her husband. The action for money had and received being very convenient in its form, has been encouraged by our courts. It is well'adapted to a case like the present. The plaintiff does not claim by virtue of any demand which she ever had against the testator; there is no occasion therefore, that her judgment should be against the goods of the testator. Although the personal estate came originally to the hands of the defendant as executor, yet the money which remains after the payment of debts &c. may not improperly be considered as received by him for the use of those persons to whom by law it belongs. Their claim against him is in his own right, for withholding the money which he unjustly detains. I am of opinion therefore that the form of action is proper. 2. The second point would have been of very great moment, if an act of assembly had not been passed, by which in future an executor is declared to be a trustee for die next of kin. It is the law before the making of that act, which we are now to decide. The principles by which the personal estate of deceased persons is disposed of, were settled at a period when personal property was generally of small amount. In England, in case of intestacy the ordinary took it into his possession, not for the purpose of paying the intestate’s debts, and distributing the residue among his ltin, but to dispose of in pious uses for the good of his soul. This mistaken piety, which trampled on the first principles of justice, was at length seen in its true light; and by the statute 31 Ed. 3. ch. 11, the ordinary was directed to depute the next and most lawful friends of the deceased, to administer his goods, to collect the debts due to him, to pay those which he owed, and be accountable for the rest, in the same manner as executors in case of testaments. At the same early period it was established, that an executor by virtue of his appointment became intitled to all that part of the personal estate not given away by the testator. No good reason has been assigned for this. The business of an executor is to perform the will of the testator. It is so understood by most people who make wills, nor have they any idea of the unnatural inference, that what is not expressly given to other persons, is supposed to be given to the executor. The English courts of justice have long felt the injustice of the principle, and struggled to evade it. It was decided by the chancellor, in the case of Foster v. Munt, 1 Vern. 473, that the testator having given a legacy of 10/. a-piece to his executors for their care, they should be considered as trustees for the next of kin, as to that part of the estate which was undisposed of by the will. This decision was so much in unison with the feelings and understanding of the nation, that it has never been questioned; and it is material, that the settlement of Pennsylvania took place about the time that the law was thus modified in England. By the English law an executor has no compensation for his trouble, unless it is given to him by the will; but among us, as far back as the testamentary law can be traced, he has had a compensation. This was putting the matter on its proper footing. The executor was considered as a person appointed to execute the will of the testator, for which he was to receive a reasonable compensation. The inference is strong, that it was not intended he should take any part of the estate, which was not expressly given to him by the will. There are many instances in which the common law of England has not been received in this country, although it was not taken away by act of assembly. The land of deceased persons is applied to payment of debts in exclusion of the widow’s dower. Married women have always been allowed to transfer their right to land, without fine or recovery. It is unnecessary to mention other instances. Since the case of -Foster v. Munt,' it has been taken for granted in England, that if the testator gives a legacy to the executor, he. does not intend that the executor shall take the residue for his own use. Then why should it not be taken for granted here, that it cannot be intended the executor should take for his own use, when every testator knows, that the executor is intitled by law to a compensation for his trouble? I am satisfied that it has been so taken for granted; that such has been the general understanding and practice. This point has never been decided by the Supreme Court. I understand, that about the time of the revolution, it was brought forward in the court of Common Pleas, but went off in the confusion of the war, or for some other cause not known. I know that it has occasioned some dive rsity of opinion. But when I say, that I believe the general understanding and practice to have been in favour of the next of kin, I rely not only on information received from the living, and from some of the dead, whose experience was carried back to early times, but upon the usage of the Register and Orphans’ courts appearing on their records, where it will be seen that in all settlements (not excepting even the estate now in question) a commission is allowed the executor for his care and trouble. Now if he was intitled to the surplus, there would be an impropriety in allowing him a commission, because it would be only taking it out of his own pocket. But Boudinot v. Bradford, 2 Dall. 268, has been cited to the contrary. The words are these. "But, by the court, “ there is no such distinction (meaning a distinction be- .“ tween the law of England and of this state) to be found “ in any act of assembly, or judicial determination. The “ next of kin are only intitled to personal estate in the “ case of intestacy, and a man cannot be intestate, who has “ made an executor.” This report is certainly inaccurate in more respects than one. The dictum was not by the court, but by the Chief Justice only; nor did the other judges express any opinion, or consider the point alluded to as having been decided. This has been several times declared by the late judge Smith, both in private, and in his seat oh the bench; and I know that his notes make no mention of any such de» cisión. The opinion of Chief Justice M‘Kean, I shall always consider as very respectable, but not to be compared to a decision of the court. There must be a mistake however, as to his having said that the next of kin could only take in case of an intestacy; for he well knew, that where a legacy is given to the executor, he is considered as a trustee for the benefit of the next of kin. I have endeavoured to ascertain the opinion and practice of the courts in our sister states, but have not been able to procure such satisfactory information as I expected. In Maryland, the executor has always received a commission founded on act of assembly, and always been considered as a trustee for the next of kin, although there was no act of assembly to that purpose. In Virginia the law has been received as in England, until altered by act of assembly. At present the executor is a trustee for the next of kin. Where a rule of property has been settled, I shall never think myself at liberty to alter it, even though I should suppose that it had been founded on a mistaken principle. But considering the point before us as completely open, I must declare my opinion, that in consequence of the acts of assembly allowing a commission to executors, the common law of England has in this respect never been received in Pennsylvania, and the executor must be considered as a trustee for the next of kin. Yeates J. It is the settled rule in England,, that the naming of executors is by implication a gift to them in law of all the goods, chattels, credits and personal estate of the testator. Wentw. Off, of Exrs. 4. 5., Toller 275., Roper on Legacies 219. It lays on them an obligation to pay his debts, and makes them subject to every man’s action for the same. In Newstead v. Johnston, 2 Atk. 46., more fully reported in 2 'Burn's Ecc. Law 168. 4th ed. Lord Hardwicke says, as the law stands now, where a person appoints one executor, it is giving him the residue, unless there is a particular legacy. And the same rule holds in the ecclesiastical courts. The judicious Mr. Coxe, in his note on 1 Pr. Wms. 550., and Fonblanque in his notes on the Treatise of Equity, vol. 2.p. 131., lay down the law in the same manner, and each of them has collected the result of the many cases on this subject. Having stated the rule of law, they proceed to say, that if in equity it can be collected from any circumstance or expression in the will, that the testator intended his executor only the office and not the beneficial interest, such intention shall receive effect, and the executor shall be deemed a trustee for those on whom the law would have cast the surplus, in case of a complete intestacy. Equal pecuniary legacies will exclude executors from taking the surplus; 1 Vern. 473., 2 Vern. 676., Pre. Cha. 81., 3 Pr. Wms. 194. note, 1 Pr. Wms. 544., 2 Pr. Wms. 162., 2 Fesey 162.; but wherever the legacy is consistent with the intent that the executor should take the whole, a court of equity- will not disturb his legal right; as in the case of a legacy to one only of two or more executors, neither shall be excluded from taking the surplus, because the testator might intend to such a one a preference pro tanto. Prec. Cha. 323., 4 Pro. Pari. Ca. 1., 2 Fes. 167. 166. 91. And so where several executors have unequal legacies, whether pecuniary or specific, they shall not thereby be excluded from the residue. 2 Atk. 68., 2 Fes. 27. The rule is universal, that wherever the legacy to the executor is consistent with the intent that the executor should take the undisposed residuum, chancery will give him no obstruction. Toiler's Law of Exrs. and Admrs. 277., 7 Bro. Pari. Cas. 1., 2 Burn's Ecc. Lazo 172. The different determinations cannot be reconciled in principle to each other. This must be resolved into the different inclinations of the chancellor? to favour, some the legal, others the equitable rule, and endeavouring to make the favoured rule apply to the case before them. 1 Wash. 65. We are told, 1 Stra. 569., that lord chancellor King brought a bill into the house of peers, which passed that house, to settle the vexata qucestio; but upon sending it down to the commons, it was thrown out upon the first reading, a bill sent up by the commons to prevent bribery and corruption in elections, having been refused to pass in the house of lords. The bill was to have settled it for the benefit of the executor. It has been questioned, whether the law of England in this particular is applicable to Pennsylvania, or has been acted on as such. By the fifth section of the royal charter^ 1 Dall. St. Laws Append. 2., it was provided, that the laws to be enacted here should be consonant to reason, and not repugnant or contrary, but (as near as might be. conveniently) agreeable to the laws, statutes and rights of the'kingdom of England. The preamble of the “ act for the advancement u of justice and more certain administration thereof,” passed 31st May 1718, 1 Dall. St. Laws 133., recites “ it to be a “ settled point, that as the common law is the birthright of “ British subjects, so it ought to be their rule in British do- “ minions.” The act of 28th January 1777, lb. 723., immediately after the American revolution, declares, “ that the “ common law and such of the statute laws of England, as “ have heretofore been in force, shall be in force, and bind-w ing on the inhabitants of this state, except as is thereafter “ excepted.” It would be a waste of time to cite more laws on this subject. Our statute book teems with the same language. But the act of 28th February 1780, Loose Laws 289. s. 3, 4, 5.; 13th April 1791, 3 St. Laws 93. s. 3. 16. 17.; 4th April 1797, 4 St. Laws 156. s. 2., and 2d April 1802, 5 St. Laws 158. s. 2., authorizing the trial of the feigned issue at Sunbury, may be particularly adverted to upon this point. Whence then is it, that a court of justice is authorized to consider this part of the common law respecting the legal rights of executors, as inapplicable to this state? The legislature by a law passed on the 7th April 1807, 8 St. Laws 159; 1st part, have deemed it necessary to enact, that on a will not disposing of the residue of the personal estate, the executors shall distribute the undisposed residue among the next of kin. It is true, that nothing is affirmed or denied therein as to undisposed residues prior to the passing of the act; but the law furnishes a strong exposition of the sense of the legislature, as to the extension of the common law in the particular under consideration. It has been objected, that testators never contemplate that the undisposed residue of their personal estates will pass to their executors. It is presumed that this observation would equally apply'to the inhabitants of Great Britain; and likewise that as well there as here, it is not generally known, that a creditor making a debtor his executor thereby extinguishes the debt, Hob. 10., Co. Litt. 264 b., 1 Salk. 300., un less it’is otherwise specially provided for, or the residuum of the estate be disposed of, Cas. Temp. Talb. 240., Cha Ca. 292., or there be a deficiency of assets to pay debts and legacies, 2 Bac. 380., 4 Bac. 269. So where a devise to a widow is not specified to be in lieu of dower, she is not precluded from dower. A number of vulgar errors have been enumerated by Judge Barrington in his observations on the ancient statutes, Barringt. Stats. 474. 4th ed. note 2., which have been added to by Sir Wm. Blacks tone, 2 Bla. Com. 53., and by Christian in his notes, 1 Bla. 401. note 8. But such mistakes cannot change the law, which every man is supposed to know. It is more formidably objected, that the legal right of the executor to the undisposed residuum is founded on the principle of a supposed compensation for his care and trouble., for which in England no allowance is made to him, 3 Pr. Wms. 249., and that he is only allowed his reasonable expenses. 4 Burn’s Eccl. Law 416. He there has nothing but the management of the personal estate, 1 Pr. Wms. 553., unless it be otherwise directed in the will. Whereas by the laws agreed upon in England respecting the settlement of the colony, 1 Dall. St. Laws App. 22. s. 14., lands were made liable to pay debts, which were pursued by many subsequent regulations of the same nature, so that they became quodam modo chattels, and thereby introduced a radical change in the rights and duties of the personal representatives of deceased persons; and the act “ for establishing Orphan’s “ Courts” passed in 1713, 1 Dall. St. Laws 99., authorizing them “ to order the payment of such reasonable fees for “ copies,' and for all other charges trouble and attendance, “ which any officer, or other person shall necessarily be put “ upon in the execution of that act as they should deem just “ and reasonable,” made an alteration ih our municipal system, which destroyed the ancient rule of law in such cases. These objections demand particular consideration, It is obvious that they are grounded on the assumption, that the' legal principle contended for by the defendant, is bottomed on a supposed compensation for the care and trouble of the executor. But is this really:the case? I do not find that the elementary writers, either ancient or modern, derive the foundation of the law from this source. In the old books it is uniformly spoken of as a gift or donation by the testator. Wentw. Executor 4. 5., Swinb. 40. 6th ed., 4 Burn's Ecc. Law 166. The executor takes all his personal property subjected to the payment of his debts and legacies; and it is presumed, that the testator had no more special will, than he had thought proper to declare. The fundamental presumption which the law makes, is, that the appointment of executors is a gift to them of what is undisposed of. It is true that in Foster v. Munt, 1 Vern. 473., a legacy of 10/. apiece to two executors for their care, was held to exclude them from taking a beneficial interest in the surplus. The decision went upon the ground, that the will afforded a reasonable conclusion that the testator meant to give each of them the legacy of 10/. for their trouble, and no more; for it would be absurd to give them expressly a part, if it were intended that they should have the whole; or according to a quaint phrase, they cannot take all and some. So in other cases. I agree, that the general practice of this state is, for executors and administrators to charge for their trouble, in the settlement of their accounts, under the character of commissions; but I cannot collect from thence, that they exclude themselves from taking the undisposed surplus, where there is no reasonable presumption of a contrary intention in the will. I take it, that the origin of the legal right is to be ascribed to the bounty of the testator, when he nominates his executors. I see much danger in unsettling ancient estabblished rules, unless on the most solid grounds. It is theoffice of the legislative branch alone to do this on grounds of public convenience. I know of but one decision, wherein this question has been solemnly determined in the tribunals of this state; but the observation of M'Kean Chief Justice in Boudinot et al. v. Bradford in December 1796, 2 Dall. 268., uncóntradicted I may at least say by any of the members of this court, that there was no distinction between the law of England and Pennsylvania as to the point now under consideration, has in my idea considerable weight. The opinion of Mr. President Wilson in Davis v. Davis’s Executors in Delaware county is to the same effect in April 1806. It is incumbent on those who advocate a change in the old settled law, to shew some act of assembly or judicial determination authorizing such change. I know of no practice which has obtained on this particular point. I know of no opinions which have been entertained by the profession on it; and presume that many gentlemen differ therein. For myself, I can only say, that I can see no solid grounds upon which I can judicially pronounce, that this part of the common law is not applicable to our local situation and circumstances. What gave birth to it in the first instance has no weight in my mind. It would afford me some relief upon the present occasion to be informed, how this legal question has been considered by the judiciaries of our sister states, wherein executors receive compensation for their care and trouble in administering on the estates of testators. I have been able to find but two cases of the kind in any of their reports. That of Shelton’s Executors v. Shelton, 1 Wash. 64., in the court of appeals of Virginia in fall term 1791, wherein the residuary estate undisposed of was held to go to the executors, it being always the case, as Pendleton president remarked, where there are several executors, and unequal legacies given to them. Judge Tucker, 2 Tuck. Bla. 514. note 44., remarks on that decision, that it seems to have been settled thereby, that such undisposed residuum, where no intention of the testator to the contrary appeared, did belong to the executors; that neither a devise of lands, Qr other real estate to an executor, nor a legacy to a brother as such, without referring to his official character as executor, of money, or other personal property, (although the brother were likewise constituted an executor) was a sufficient manifestation of such an intention to the contrary, as to preclude him from taking the residuum as executor. This resolution more strongly applies to the question before the court, as in Virginia executors are intitled to compensation for their services. 1 Wash. 250. In Denn on the demise of Snedeker et al. v. Allen, 1 Pennington 44., in New Jersey in May term 1806, Judge Pennington declared, that an executor was intitled to the residue where it was not disposed of in express terms; and he recognised the practice of that state of allowing a reasonable compensation for services performed by an executor. I have examined with some care the late reports of cases decided in the states of Massachusetts, Connecticut, Vermont, New York, Maryland, North and South Carolina, without success, for other decisions on this subject. Upon this head of argument the matter thus stands. Upon the one hand, what has been called the individual opinion of M-Kean Chief Justice in this state in 1796, the solemn decision of President Wilson in April term 1806, and the two cases cited above in Virginia and New-Jersey, assert the extension of the English law, though the executors are compensated for their care and trouble: and on the other hand, no case has been discovered of a different rule of decision adopted in any of our sister states, by the judicial departments thereof. I thus find myself in trammels from which I cannot escape; and I do not feel myself at liberty, from my private sense of possible individual hardships, to garble that common law, which we have heretofore prided ourselves in, and styled our birthright. Believing, as I have been led to do, on the best consideration I have been able to give to the subject, that the law of Pennsylvania agreed' as to the particular point before the court, previous to the late act of 7th April 1807, with the law of England, I proceed to consider the last will of John Wilson senior deceased. He devised to his son John the defendant the land whereon he lived in fee simple, and also his land in Chester county. To his two daughters, grandsons, and granddaughters, he bequeaths several pecuniary legacies, and to his widow Jane the plaintiff, the profits of the place whereon he lived, which after her decease was to fall into the hands of his son John. He ordered his land in Leacock town- • ship to be sold, together with 50 acres of his land in Lampeter township, and 100/. arising therefrom to be paid to his daughter Margaret Hamilton, and the interest of other 100/. to be paid to his daughter Mary Peters, and at her decease the money to be equally divided among her children; and he appointed his son John and his son-in-law Robert Hamilton his executors. Hamilton renounced. I consider at present the rule to be, that making an executor does vest in him the personal estate of the testator, unless a reasonable ground appears upon the will, that the testator did not intend by making that executor to vest in him the residue. Considering this then as a question of intention, what reasonable ground does the will present to shew that the testator did not intend his executor should take the surplus? What circumstance or clause on the face of the will, will give our minds sufficient satisfaction in this particular? The rule of law is, that the appointment of executors vests in them all the personal estate of the testator not otherwise disposed of. The will contains a devise of lands to his son John both in possession and remainder, but he takes no legacy either pecuniary or specific. To his son-in-law Robert Hamilton there is no devise of land or legacy whatever. They are not called executors in trust, 2 Vern. 99., 2 Pr. Wms. 158., 2 Atk. 18., 2 Ves. 91. 495., nor do any other expressions occur in the will, shewing the office only to be intended them, and not the beneficial interest. I lay no stress on the circumstance of an only son being one of the executors, since notwithstanding the case of Ball v. Smith, 2 Vern. 675., it now seems settled, 1 Pr. Wms. 550., that even a wife appointed executrix, is as to the residue precisely in the situation of any other person appointed executor. In whatever light I view this will, I see no provision in it inconsistent with the executors taking beneficially the undisposed residue of the personal estate of the testator, and this renders it unnecessary for me to consider whether the form of the action has been misconceived. I am of opinion that a new trial should be awarded. Brackenridge J. The claim of an executor to the surplus, is affiected by that of the next of kin, who may allege a better right on ground of natural equity; for the presumption is, that in the possession of property, there may have been some foundation laid by the acquisitions of a common ancestor; and the means of acquiring more, may not have been wholly independent of the line of progenitors. The natural obligation under which we are to help others, draws closer and stronger, the nearer they are related to us. Natural affection with most persons dictates this, even where there is not a sense of duty and moral obligation. Nor is it left only to the strength of natural affection, or a sense of moral obligation; but the municipal laws of all, or of most nations, consult this. We find it in the customs of the German nations, from whence we deduce our laws and constitutions. “ Hceredes tamen successor esque, sui cuique liberi, et nullum “ testamentum: si liberi non sunt, patres,patrui, avunculi.” Tacit, de Mor. c. 21. “ The name of Saxons,” says Gibbon, Rom. Hist. v. 2.2/6., “ escaped the notice of Tacitus; yet it is that in which we “ have a near and dear domestic interest, these and their “ auxiliaries, who so long defended the liberty of the north “ against the arms of Charlemagne, having filled the British “ islands with their language, their laws, and their colonies.” After the settlement of these in England, it is recognised as a principle at an early period, “ possessiones uxori, liber is, “ et cognatione proximis, pro suo cuique jure, distribuantur." 2 Black. Com. 492. At this time it would seem to have remained the law, that an ancestor could not deprive his next of kin of this right by testament. “ But though the origin “ of devising, (continues the commentator) cannot be traced, “yet-the law by imperceptible degrees was altered, and the “ deceased may now by will dispose of the whole of his es“tate.” And where there is a will, and an executor appointed, the next of kin do not succeed immediately to the possession even of that part of the property which may be undisposed of by the will; because it is necessary that the testamentary trustee the executor, take the possession of the whole to execute the purposes of the will, until after which, it cannot be ascertained that there is a surplus. It would seem also reasonable that after paying debts and legacies, he should have a lien upon the surplus, for a compensation for his trouble. And that this is considered as a ground on which the surplus can be retained, would seem from this, “ that wherever courts of equity have seen, on the face of a “ will, sufficient to convince them that the testator did not “ intend the executor to take the surplus, they have turned “ him into a trustee for those on whom the law would cast “ the surplus in case of a complete intestacy, that is the next “ of kin.” 1 Pr. Wms. 550., and Bro. Chan. Cases 328. “ A “ legacy given for care and trouble excludes the surplus.” Where that is not the case however, the “ executor though “ not named residuary legatee, shall take the residuum.” 1 Com. Di. 359. In the citation from Peere Williams, the term complete intestacy would seem to distinguish the devise of a whole and a part. I have not been able to trace when this claim of the executor came to be the law; the right to the residuum. It has been said, that from, the constituting an executor, a presumption arises of intending a benefit. The only presumption that strikes me, is that of a confidence in his understanding and care, and in his good will to do the deceased a service, by the fidelity of fulfilling the trusts of the will, and distribution of the surplus for the next of kin. May not this idea of a right to take the residuum, have crept in from a misapplication of the general terms that are used in treating on this subject; which are, that the constituting an executor is a gift in law, or donationary estateP It is true; but with this qualification, that it is but a special property that is given, not an absolute. It becomes his, not to such extent as to be liable for his debts, or devisable. “ His assignees under a bank- “ ruptcy cannot take it.” 3 Bur. 1369. This principle equally applying to the surplus in favour of the next of kin, may have been overlooked, personal property at an early period being small, and the surplus still less, after satisfying the dispositions of a will. Or it may have been suffered to remain uncalled for by the next of kin, under an idea of being applied in requiem animas of the testator himself; following the law in the case of intestates’ estates, at a time when the church succeeded to the king as the general trustee in such cases, and thought themselves justifiable in considering it a conscientious discharge of the trust, to apply the property rather in pios usus, than for the next of kin. It could not be disputed, but that according to the notions of these times, the most pious use was that of saying masses for the soul of the deceased. And though in the case of a lay executor, he could not himself say mass in consideration of the residuum, or perform the spiritual service, not having a spin tual authority, yet he could procure it to be performed by those who were qualified. But however founded, or in what manner introduced, was this such a principle as was necessarily carried with the emigrants to this province in their colonization? Not if the reason of the rule had been the saying masses in requiem mimes; because there was no spiritual authority known to the colonial laws, that could render the service; and we have historical evidence, that the greater part of the emigrants were unbelievers as to the efficacy of a mass in benefiting after the decease. But supposing it to be carried as a principle of the common law into our colonization, as applicable to our circumstances, being founded either on the idea of a gift ex volúntate, or a compensation for trouble in executing the will, has it not been extinguished by the early acts of the province legislature, or since under the state? There are acts at a very early period, providing for the distribution of in-testates’ estates. Do not these comprehend intestacy even as to part? “ In case a person made no disposition of such “ of his goods as were testable, whether that were only part “ or the whole of them, he was, and is, said to die intestate.” 2 Bl. Com. 494. But independent of this construction, and meeting that which is the only rational foundation of the claim of the executor, a compensation for trouble, by the act of 1713 a power is given to the Orphan’s Court over executors in the. case of minors to compel to account, and to allow “rea- “ sonable fees for charges, trouble, and attendance in the execution of their trust.” Has not this act, by an equitable construction, been extended to the case of the next of kin, so as to allow compensation to executors in all cases of the settlement of accounts under will. By subsequent acts, particularly that of 1797, which -would seem to be declaratory of this construction, executors are made compellable as to this particular, on the application of any one interested in the real or personal estate of any decedent, “ to give bond “ with sureties to the Orphan’s Court, and to account in such “ manner and time, as the said court according to the usual “ course of proceeding in the cáse of administrators shall il award and order” This must comprehend the allowing reasonable fees for trouble in executing the will. By a preceding act of 1794, sec. 3d, it is provided, that the u remaining part of any lands, tenements or heredi- “ taments, and personal estate of any person deceased, not “ sold or disposed of by will, nor otherwise limited by mar- “ riage settlement, shall be divided and enjoyed in the pro- “ portions and distributions therein regulated, in favour of “ the wife, children and next of consanguinity.” These words, “ not sold or disposed of by will,” suppose a will, and a sale or sales directed under it, and dispositions made by it as to some part, and not as to the whole. What but the surplus in this case could there be to make the subject of the provisions of the section? The very technical term is used, “ remaining partf the residuum undisposed of by will; that is the surplus. I presume the claim in the case before us must be of the residuum of a testator before the act, and to which it might be thought this act could not retrospectively apply; otherwise the provision is so express that a doubt could not arise. Yet it is to be observed, and I cite it for this reason, that this act is intitled “ An act directing the de- “ scent of intestates’ real estates, and distribution of their “ personal;” which shews that the legislature contemplates intestacy as to part, even where there is a will. This act I take to be declaratory of what the law was before, and with a view to remove doubts which had come to be entertained, in consequence of what has been reported to have been said, 2 Dall. 268., which must be taken with some qualifications. For though generally speaking, both in legal and in popular acceptation, intestacy refers to a case where there is no will, yet it also embraces the case where there is a will, but no disposition as to some part; as to which, it is the same thing as if there was no will. This in the express words of the commentator, 2 Black. Com. 494. “ In case a person “ made no disposition of such of his goods as were testable, “ whether that were only part, or the whole of them, he was, “ and is said to die intestate.” Though it be true therefore that “ the next of kin are intitled to personal estate only in “ the case of intestacy,” yet where there is no disposition of the whole under a will, it is a case of intestacy as to the part undisposed of. Nor would the court or those of them who may in the year 1796 have thrown out the obiter dictum referred to, seem to have adverted to this act of assembly of 1794, or to the preceding acts and legal history of the province; or I take it they would have sanctioned the position of the counsel, (Ingersoll) “ that as to the residuum of per- “ sonal estate undisposed of by the will, the executor, in “ Pennsylvania, holds it only as trustee for the next of kin,” and which I now deliver as the result of my investigation as what ought to be considered as the law. With regard to the capacity in which the defendant is called upon to answer for the surplus, whether he ought to be declared against as an executor, or as trustee merely, it may be observed, that in order to determine where one who is executor must sue as executor, it must be inquired, can he sue otherwise in that particular case than as executor? And the reason is, because suing as executor in England, he is exempt from costs to the defendant; and having this immunity, it is just that he be restrained to cases where he cannot sue otherwise. The cases in which one who is sued by an executor, has a right to call for a proceeding as executor, are where the executor can sue as executor; for the law not giving a defendant costs, save where one being executor proceeds in his own right, it is reasonable that the sphere of the immunity be confined to strict bounds. This reason which exists in England, has no place with us; for by the usage of Pennsylvania, costs follow the verdict in all cases not excepted by. act of assembly. The ground therefore is narrowed; and perhaps the criterion of Buller, 4 T. R. 280., may be adopted here, as to the bringing actions in a personal or representative capacity, and as to joining counts in the same declaration, ''will the demand when recovered go into “ assets?” Again, where one js made defendant as executor, even here where he recovers or pays costs as the verdict may be for or against him, yet he has different pleas, and the judgment differently affects him, both as to what shall be taken in execution, and as to the recovery and evidence of the demand barred; so that there is good reason why one who is executor shall call for a proceeding against him eo nomine. And in a case where the defendant could be sued as executor, I would hold a plaintiff to that action. The question then will be in the case before us, could the defendant be sued as' executor¶ The execution of a will can respect only the dispositions of a will, in executing which it cannot but be that the surplus will be thrown upon the executor; but it is not a subject of the testator’s disposition. It comes to the executor, but it is not as executor that he takes it, unless specially so appointed by the will; and then it becomes a subject of the disposition of the will, that he shall be intrusted with it. In that case he could not be sued but as executor. But where his being executor is but the mere occasion of its coming into his hands., he cannot be considered as executor quoad hoc and in strictness a suit could not be sustainable against him under the denomination of an executor, not even under the idea of an executor of his own wrong, for he could not be said to have meddled wrongfully with the property, it having fallen upon him in the course of a lawful act, unless by his detention after a demand, he might be considered an éxecutor of his own wrong. But certainly it cannot be necessary to consider him in that light. The idea of a tortious act may be waived, and he may be viewed in the light of a person having money in his hands for the use of those in-titled to receive it. Non constat necessarily that he will claim it for himself. The law will not say that it is necessary to presume the worst, or to give the worst names to things. If I place my eye simply on the surplus without looking at the will, as I have a right to do, (for it is not under the will that I claim it, but under the law which gives it to me,) I do not see the executor and am not bound to see him. I see only one to whose hands the property has come to which I have a right. My claim reaches the subject of this demand, antecedent to the will, and independent of it. It attaches on the testator’s decease, to the thing, and before it can be supposed to come to the hands of the executor; though nevertheless the mass of the property must pass through his hands, before this can be separated; yet this surplus must be viewed as existing distinct at the decease, from that which could be operated on by the will. I can see no possibility of connect ing the executor with the testator as to this undisposed part “of the estate; and as executor, unless it be as executor in his own wrong, after demand made, an action could not be sustained. But the strictly technical and proper proceeding is against him as a stakeholder, or trustee. It is a proceeding against the executor as such, that I speak of, as that which could not be supported. The bare naming him executor, may be taken as descriptive of the person, and not as of the capacity in which he is called upon to answer, and may be rejected as surplusage; more especially in this case, where he is named executor in the writ only, and the declaration is against him in his personal capacity. It is a more solid objection, that the declaration has not been more special, stating the way aod manner in which this surplus has come to the hands of the defendant. Certainly such declaration gives no more notice of the ground of the demand than the -writ itself; and were the case new, I should be willing to turn the plaintiff round to a new trial, and on payment of costs give him leave to amend his declaration; for such a want of specification ought not to be encouraged. A bill in equity in England, which is the proceeding in this case, must set forth specially the ground on which relief is prayed; and this which is in lieu of the bill in equity, ought to do the same. Though a declaration for money had and received for the use, is the truth of the case, yet there is more in the case, which ought to be shewn; viz. the way and under what circumstance the money has been received for the use of those interested to receive it. But this mode of declaring has got a footing, and received the countenance of courts, which would make it a surprise in a particular case to exclude it. This laxity of declaring maybe helped by the defendant calling for a specification, which the court would certainly direct. In the case before us it is not alleged that the want of a more specific statement in the declaration has been the occasion of surprise to the defendant; but the objection is raised merely of being technically exceptionable. The justice of the case having been reached, I incline to think the court is not under the necessity of setting aside what has been done, for the sake of any general principle of law or practice which might be affected. I give judgment therefore so far as my opinion goes, for the plaintiff. New trial refused, and Judgment confirmed.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT LARSEN, Justice. This is an appeal by allowance from an order of the Commonwealth Court which affirmed the order of the Workmen’s Compensation Appeal Board which had affirmed a workmen’s compensation referee’s order denying appellant’s petition to reinstate compensation benefits. For the reasons to follow, we will reverse the Commonwealth Court and order the Board to reinstate benefits. With one notable exception, the facts are not in dispute. The record before us discloses the following. Janet Farquhar, appellant, had been an employee of the Corning Glass Works, appellee, in Charleroi since the summer of 1980. In February, 1981, appellant worked as a screen-maker responsible for manually producing the frames and screens used to make decorative designs for impressions upon appellee’s products known as Corning Ware. In making screens and frames, appellant would cut and shape stainless steel mesh, punch holes into the mesh and screw ten to twenty metal screws of various sizes through the mesh into a metal frame, using a screwdriver. This job also involved strenuous pulling of an overhead lever. The screen-making process was described as employing “a lot of physical labor.” In early February, 1981, appellant experienced pain and swelling in her upper right arm (appellant is right handed) and observed black and blue marks along her arm. On February 4, 1981, appellant complained of these problems to a company nurse, who referred her to the company doctor, Dr. Arthur Paluso, who in turn referred her to Dr. Leslie Morris, an angiologist who specializes in peripheral vascular diseases. Dr. Morris, Chief of the Vascular Clinic at Montefiore Hospital in Pittsburgh, examined appellant on February 6, 1981, ordered an emergency venogram test which revealed a blood clot (an “effort thrombosis” of her right subclavien vein which obstructed the flow of blood), and immediately admitted her to the hospital where she remained until February 21, 1981. During her stay in the hospital and following her discharge, appellant’s thrombosis was treated with rest and anti-coagulent medications. Compensation benefits were paid to appellant beginning on March 9, 1981, pursuant to a notice of compensation payable. Dr. Morris examined appellant on March 6, 17 and 31, 1981, observing continued improvement in appellant’s arm, with the swelling reducing and the thrombosis resolving, although she continued to experience some pain in her arm which tired easily. On March 31, 1981, Dr. Morris advised appellant and her employer that she was “fit to return to work on Monday, April 6, 1981, however, not to her former occupation.” Specifically, Dr. Morris informed Dr. Paluso that appellant “was permanently unfit for the type of work that she had performed in the screen department, which produced her present problem.” Reproduced record (R.) at 73, Deposition Testimony of Dr. Morris at 23. Appellant returned to work on April 6, 1981 as a screen-maker instructor at an average weekly wage equal to her wage at the time of her injury, and compensation benefits were suspended as of April 16, 1981. In her capacity as screen-maker instructor, appellant instructed several other people in how to make screens for the Corning Ware. This job required her to demonstrate the screen-making operation, and therefore required her to perform the same work that had produced the effort thrombosis. On April 10, 1981, appellant experienced a flare-up of her arm injury, including swelling and soreness, and was examined by Dr. Morris who found the veins in her right arm to be slightly more dilated than when last measured on March 31. Dr. Morris advised appellant in no uncertain terms to avoid the strenuous physical labor involved with screen-making, especially screw driving and lever pulling. He also advised her to avoid similar exertions at home and elsewhere, and suggested a very mild exercise regimen (described by the doctor as lifting a very light weight for two minutes, twice a day, but without hyperabducting the arm). Appellant returned to work the following Monday, again as a screen-maker instructor but in more of a supervisory capacity involving less physical strain and exertion. However, on June 8, 1981, appellant was informed by appellee that there was no longer any need for a screen-making instructor, that the only position available for appellant was that of screen-maker, and that she must either accept this position or be discharged. Upon the advice of Dr. Morris, appellant did not accept this position as a screen-maker, and was discharged. On August 7, 1981, appellant filed a petition seeking reinstatement of compensation and, additionally, seeking penalties and attorney’s fees based upon allegations of appellee’s bad faith in denying her compensation. Appellee contested the petition, and hearings were conducted before a workmen’s compensation referee. At these hearings, appellant testified in person, as did Dr. Morris’ medical assistant who had specifically gone to appellant’s place of work and observed her working as a screen-maker. Dr. Morris had been deposed on October 21, 1981, and his deposition testimony was admitted into evi dence along with numerous medical exhibits and documents. Appellee presented no witnesses, testimony or other evidence at the hearings. Dr. Morris’ deposition testimony included his opinion that there was “true cause and effect” between both incidents of thrombosis and appellant’s work as a screen-maker and screen-maker instructor, and this opinion was expressed to a “reasonable degree of medical certainty,” and well beyond. R. 71. For example, Dr. Morris stated that “in my opinion, she should never make screens again as long as she lives,” and that, without doubt, her effort thrombosis was caused by her work as a screen-maker. R. 80, 93 and 70-71. He further expressed the opinion that, although her symptoms had abated (a venogram on September 22, 1981 showed that the obstruction/occlusion in the affected vein had been resolved), there was “no room for debate” that to return to work as a screen-maker would expose her to great risk of another, potentially more dangerous thrombosis attack, and that to perform such work would be like playing Russian Roulette. R. 86-94. On cross-examination of Dr. Morris at the deposition, counsel for appellee asked a series of questions apparently designed to elicit an opinion that appellant was peculiarly susceptible to developing blood clots and that it was this susceptibility and not her work as a screen-maker which caused the effort thrombosis. R. 119-23 and 135-38. While Dr. Morris did not waiver in his opinion as to causation, and did not accept that appellant had a “peculiar physiological makeup” that caused the thrombosis, R. 121-22 and 135-36, he did state on cross-examination that “she may have what we call a tight thoracic outlet. She may have a little more pressure on the vein when it emerges from the thorax down the arm than you or I would have,” and that she should “refrain from activities tending to aggravate that____” R. 136. On February 9, 1982, the referee dismissed appellant’s petition for reinstatement. The referee concluded that although appellant had sustained a work-related injury, she had since returned to work without a loss in earning power and her “total disability has not recurred” since that time. Referee’s conclusions of law nos. 1, 3 and 4, Brief for Appellant at 32. These conclusions and denial of compensation were predicated primarily on the referee’s 19th finding of fact, which is: 19. The basis for Dr. Morris’s testimony that the claimant should not return to her position as a screen maker is his opinion that the claimant should refrain from activities that tend to aggravate some abnormality peculiar to the claimant’s system or body structure, because there exists the possibility of another clot developing. On appeal to the Workmen’s Compensation Appeal Board (the Board), the referee’s adjudication was upheld. The Board focused on the referee’s finding of fact no. 19, and embellished it in affirming the denial of compensation benefits, stating: On cross examination the doctor essentially testified the original disability was an aggravation of a preexisting nonwork-related condition which had resolved itself. He did not want her to resume her usual job because of the danger of again aggravating this underlying condition____ It is a fair inference to be drawn from Dr. Morris’ cross examination that the underlying propensity for developing blood clots is not work-related____ This being the situation, the Claimant is not prevented from doing her regular job because of a work injury, but rather because of a nonwork-connected physical condition. ... It was not capricious on the referee’s part to draw the inferences he did____ The Commonwealth Court, on appeal, further embellished the referee’s finding of fact no. 19, stating (in an unpublished memorandum opinion) that this “is an unusual case in that Claimant suffers from a condition which renders her highly susceptible to injury when she does the job for which she was trained.” Slip op. at 1, Brief for Appellant at 38. That court then concluded: It is clear from the record that Claimant’s condition, i.e. susceptibility to developing thrombi, is not a result of her work for her Employer, but rather was a pre-existing condition. Claimant’s injury however, was a direct product of her work, for which she properly received compensation. Inasmuch as Claimant is perfectly fit to do other work, as evidenced by her teaching prowess, the referee could hardly find that Claimant was totally disabled. Slip op. at 2-3, Brief for Appellant at 38-39. The Commonwealth Court affirmed the Board. We granted appellant’s petition for allowance of appeal on June 30, 1986. Because there is no support on the record for the referee’s finding of fact no. 19, because the referee and Board capriciously disregarded uncontradicted medical testimony and evidence, and because all lower tribunals have committed an egregious error of law, we now reverse. Justice Hutchinson reiterated the appropriate standard of appellate review in Jasper v. Workmen’s Compensation Appeal Board (WCAB), 498 Pa. 263, 445 A.2d 1212 (1982), wherein we state: Previous cases have set forth the scope of review where, as here, the fact finder’s decision is against the party having the burden of proof in terms such as “capricious disregard of competent evidence”, Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968), “willful disbelief of otherwise credible evidence”, Bullock v. Building Maintenance Inc., 6 Pa. Commonwealth Ct. 539, 297 A.2d 520 (1972) or internal inconsistency in the findings of fact and conclusions of law. Halaski v. Hilton Hotel, 487 Pa. 313, 409 A.2d 367 (1979). Without express findings on the issues noted above we cannot properly exercise our reviewing function, or determine whether there is internal inconsistency between the finding of initial disabling injury [a work related back injury] and termination [after claimant had become “normal” and “symptom free”]. At the very least the findings and conclusions of the fact finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence. Id., 498 Pa. at 266, 445 A.2d at 1213 (emphasis added). To establish eligibility for compensation, the claimant has the burden of proving two things — that the injury “arose in the course of employment” and that it was “related to that employment.” Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 120, 439 A.2d 627 (1981). Where there is no obvious causal connection between an injury and the alleged work-related cause, that connection must be established by unequivocal medical evidence, i.e., evidence which establishes that to a reasonable degree of medical certainty, the injury was in fact work-related. Id., 497 Pa. at 125, 439 A.2d at 632; Lewis v. Commonwealth, 508 Pa. 360, 365, 498 A.2d 800 (1985); Halaski v. Hilton Hotel, 487 Pa. 313, 317, 409 A.2d 367 (1979). In construing the Act, we are always mindful that, being remedial in nature and intended to benefit the Pennsylvania workers, the Act must be liberally construed to effectuate its humanitarian objectives, Krawchuk v. Philadelphia Electric Co., supra, 497 Pa. at 120, 439 A.2d at 630. Thus, this “Commonwealth has long endorsed the strong public policy of compensating employees who suffer injury and become disabled, totally or partially, in the course of their employment.” Lash v. WCAB, 491 Pa. 294, 298, 420 A.2d 1325 (1980). Applying these standards to the instant case, there is no doubt that appellant has met her burden of proving her eligibility for compensation benefits and that the lower tribunals erred in dismissing her petition for reinstatement. Initially, the referee’s finding of fact no. 19 has no rational basis in the evidence of record and demonstrates a manifestly capricious disregard of competent and uncontradicted evidence. This finding, that “the basis for Dr. Morris’s testimony that the claimant should not return to her posi tion as a screen maker is his opinion that the claimant should refrain from activities that tend to aggravate some abnormality peculiar to the claimant’s system or body structure ..has virtually no support in the record; nowhere does Dr. Morris indicate or suggest that appellant possessed an “abnormality peculiar to [her] system or body structure” which “abnormality” caused her effort thrombosis and prevented her from returning to her position as a screenmaker. This “finding” seems to have been based upon the following isolated exchange between Dr. Morris and counsel for appellee during cross-examination: Q. [By Mr. McCloskey for Appellee] Does that mean you’re taking issue with the statement that she may have a peculiar physiological makeup, as distinguished from you, I, the court reporter, and Mr. Leventon? A. [By Dr. Morris] It may not be a physiological makeup. She may have what we call a tight thoracic outlet. She may have a little more pressure on the vein when it emerges from the thorax down the arm than you or I would have. Q. That is the type of condition I’m talking about, Doctor. If I used the wrong word, excuse me. She has some particular system or some particular physical structure there that may be abnormal, and you want her to refrain from activities tending to aggravate that, correct? A. Yes, sir. Q. You’re concerned about the development of a fresh or new area of coagulation? A. Yes, yes. Q. The clot is no longer present, but there exists the possibility of another clot developing, correct? A. Yes, indeed. Q. Now, Doctor, even though she may be able to do this work as a screen technician today, she shouldn’t do so in your opinion; is that correct? A. In my opinion, yes. Q. To do so may be hazardous to her health in the future? A. Yes. R. 135-36. It is difficult to glean the source of the referee’s 19th finding of fact from the above-quoted portions of the doctor’s testimony on cross-examination, the only portions of the 105 page deposition that could remotely be viewed as supporting that finding as to the “basis” for the doctor’s opinion. It is clear, however, that in focusing narrowly on that singular “finding,” and taking Dr. Morris’ testimony out of context, all of the lower tribunals have totally ignored Dr. Morris’ consistent, unequivocal and unwavering medical opinions and conclusions that appellant should not return to her former position because she had been seriously injured as a direct result of work done at her former position and ran the high risk of being seriously injured again by her work if she resumed that position. Immediately preceding the above quoted testimony, Dr. Morris stated “There is nothing in my testimony that suggested that [appellant] has her own peculiar physiological makeup.” R. 136. Immediately following the above-quoted testimony, Dr. Morris stated that appellant was not suited to return to her former job “because of her health, because of the damage that occurred to her as a result of doing it [her job] before.” R. 137. Additionally, interspersed throughout Dr. Morris’ testimony were numerous unequivocal statements that appellant's condition, the “effort thrombosis” in her right arm, was directly caused by her work as a screen-maker, and not by any “abnormality” or peculiar pre-existing condition. Representative (but by no means exhaustive) samplings of that testimony include the following: Q. Doctor, is it your professional opinion, with a requisite degree of medical certainty, that [appellant’s] work caused the effort thrombosis? A. I have no doubt. * sf! sft sf: * sfs Q. Did you formulate an opinion as to the causal connection between the increased circumference in her right arm with her return to work? A. I felt that it was true cause and effect. Q. Did you make a note of that in your Angiology Follow-up Report which you sent to Dr. Paluso? A. Yes. A A A * & Q. Is that opinion founded with reasonable medical certainty? A. Yes, sir. Q. That has been constant and consistent with your first diagnosis back in February of this year? A. Yes, indeed, there has been no doubt in my mind. A A A A A A A. ... Iam absolutely convinced that in this case the repetitive injury, or insult to which this girl was subjected, was the cause of her problem. R. 71-72, 80, 93, 152 (emphasis added). As this Court recently stated, “the medical witness’s entire testimony must be reviewed and taken as a whole and a final decision ‘should not rest upon a few words taken out of context of the entire testimony.’ ” Lewis v. Commonwealth, supra, 508 Pa. at 366, 498 A.2d at 803 (emphasis added). The referee, Board and Commonwealth Court all pulled a few words from Dr. Morris’s testimony completely out of context, distorted those words, and capriciously or wilfully disregarded his unequivocal medical opinion that appellant’s work caused her injury. Compounding and exacerbating this disregard of competent medical (and other) evidence is also a total failure of the lower tribunals to appreciate the substantive law of workmen’s compensation; namely, that a claimant’s disability need not be total in order to qualify for compensation, and that the existence or nonexistence of a “susceptibility” to injury or pre-existing condition is no bar to recovery. Section 301(c)(1) of the Act has provided, since the 1972 amendments, as follows: The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury. 77 P.S. § 411(1) (Purdon’s supp. 1986) (emphasis added). Thus, even if appellant did have a pre-existing condition rendering her susceptible to an effort thrombosis, she was entitled to compensation “regardless of her previous physical condition” under section 301(c)(1). As we stated in Halaski v. Hilton Hotel, supra: The fact that an employee was afflicted with a pre-existing physical defect or ailment which rendered him or her more susceptible to injury than an entirely normal person will not bar recovery. The injury need not be the sole or exclusive cause of the disability. It is sufficient if the injury materially contributed to the disability, rather than the disability resulting from the natural progress of the pre-existing condition. 487 Pa. at 318-19, 409 A.2d at 370 (citations omitted). See also Krawchuk v. Philadelphia Electric Co., supra; WCAB v. Bernard S. Pincus Co., 479 Pa. 286, 388 A.2d 659 (1978). It is incredible that the lower tribunals would deny compensation because they perceived appellant’s work-related injury to have aggravated a pre-existing non-work related condition. We insist that such lingering notions be finally laid to rest. Equally incredible is the conclusion of the lower tribunals that, because appellant’s symptoms had disappeared (i.e., her blood clot or thrombosis had resolved, swelling had gone down, etc.) and her condition had “normalized,” she was not totally disabled and could not, therefore, recover compensation. This conclusion is absurd, and flies in the face of the substantive law. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968), firmly established that a claimant need not be so crippled or diseased as to be helpless in order to qualify for workmen’s compensation; rather, it is sufficient that a claimant’s injury rendered him or her unfit or unable to do the type of work he or she had been engaged in when injured. More recently, in Lash v. WCAB, supra, we upheld an award of compensation to claimants who had become “lead-absorbers” by virtue of their prolonged work-related exposure to lead, and faced a risk of lead poisoning if they continued to perform the same work; otherwise, the claimants had no symptoms or disabling injuries. Nevertheless we stated: To require appellants to remain exposed until the advanced stages of lead poisoning had in fact been inflicted upon them in order to qualify for partial disability benefits would be unconscionable. ****** It would be barbaric to require an employee to continue in a position where he is exposed to a toxic substance until he is so ill that he physically is incapable of performing his job. We have held that “[i]n the interpretation of the Workmen’s Compensation Act, 77 P.S. § 1 et seq., the word “disability is to be regarded as synonymous with “loss of earning power.” Unora v. Glen Alden Coal Co., 377 Pa. 7, 12, 104 A.2d 104, 107 (1954), and that the Act must be construed liberally to effectuate the underlying public policy. 491 Pa. at 297-98, 420 A.2d at 1326-27 (emphasis added). Similarly, in Jasper v. WCAB, supra at 498 Pa. at 266, 445 A.2d at 1213, we reiterated that “Our law of Workers’ Compensation does not require an employee to bear the risk of probable severe and totally disabling reinjury by return to heavy work on pain of foregoing all compensation.” In the case before us, appellant was seriously and dangerously injured as a direct result of the physical stresses of her work which caused a blood clot or thrombosis. Because of the nature of the condition, the consequences threatened to be more severe if she were to experience another episode. See note 2, supra. Dr. Morris (who had been selected by appellee-employer) testified unequivocally that she should never return to work as a screen-maker, and that to do so would be like playing Russian Roulette. It was unconscionable for the appellee to require appellant to return to work as a screen-maker upon the threat of foregoing workmen’s compensation, and it is inexplicable that the lower tribunals would deny her compensation simply because her symptoms were not currently manifesting, making her “not totally disabled.” This is not the dark ages. In Barrett v. Otis Elevator Co., supra, we held: once the claimant has discharged his burden of proving that, because of his injury, he is unable to do the type of work he was engaged in when injured, the employer has the burden of proving that other work is available to the claimant which he is capable of obtaining. 431 Pa. at 458, 246 A.2d at 674. In Jasper v. WCAB, supra, we remanded to the Board for further proceedings to make, inter alia, a “determination of [claimant’s] earning power in the light of available work under the principles set out” in Barrett. 498 Pa. at 265, 445 A.2d at 1213. The remand was necessary because the record failed to disclose “whether the Referee simply ignored the principles of Barrett, or failed to consider them” for other reasons. Id. Here, however, there is no need to remand for application of Barrett principles, as the uncontradicted record evidence demonstrates that appellee had no other work available to appellant, and appellee did not even attempt to demonstrate the availability of any other work in the geographic area. Appellant is thus entitled to workmen’s compensation benefits. Additionally, appellant alleges that appellee acted in bad faith in refusing to pay her workmen’s compensation, and requests this Court to award her “counsel fees pursuant to Section 440 of the Workmen’s Compensation Act, interest and costs.” Section 440, 77 P.S. § 996 (supp. 1986), provides, in relevant portion: Contested cases regarding liability; attorney’s fees and other costs; limitation and calculation In any contested case where the insurer has contested liability in whole or in part, the employe ... in whose favor the matter at issue has been finally determined shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established ... (emphasis added). By the plain language of section 440, the award of costs incurred for witnesses, necessary medical examination and the value of unreimbursed lost time to the successful claimant is mandatory, and admits of no exception. A limited exception is recognized for attorney fees where a “reasonable basis for the contest has been established,” and where the compensation authorities exercise their discretion to exclude {“may be excluded”) attorney fees. Neither the referee nor the Board rendered a factual determination as to whether appellee had a reasonable basis for contesting liability, nor did the authorities exercise their discretion to determine whether to exclude attorney fees. Appellee asserts that because the lower tribunals found in its favor in denying compensation, a “reasonable basis” for contesting the claim has been established as a matter of law. We do not agree. We have found today that it was “unconscionable for the appellee to require appellant to return to work as a screen-maker upon the threat of foregoing workmen’s compensation ...” We have further held that the lower tribunals pulled Dr. Morris’ words out of context, distorted those words, and capriciously or wilfully disregarded his unequivocal and uncontradicted medical opinion that appellant’s work had caused her injury. While it may have some bearing on the “reasonableness” of its contest that appellee persuaded the referee, Board and Commonwealth Court to deny compensation, we cannot say on the record before us that such a reasonable basis was established as a matter of law. It is necessary for the referee or Board, in the first instance, to determine whether, under the circumstances, the appellee had a reasonable basis for contesting liability and whether, if it so finds, it will exercise its discretion to exclude attorney’s fees. An appellate court cannot initially exercise this discretion-indeed, we may only review the record to determine whether the lower tribunals have abused that discretion. Accordingly, we must remand the issues of the appropriateness of attorney’s fees and what is a reasonable sum for the specified mandatory costs and expenses under section 440, to the Board for determination, and for such further proceedings as are deemed necessary. Any such proceedings shall not, however, delay the immediate payment of appellant’s long overdue workmen’s compensation benefits. The Order of the Commonwealth Court is reversed, appellant’s workmen’s compensation benefits are reinstated, and the case is remanded to the Workmen’s Compensation Appeal Board for computation of benefits and for a factual determination as to the reasonableness of appellee’s contest of the claim and a determination of the amount of attorney’s fees and other costs to be awarded to appellant under Section 440. NIX, C.J., filed a concurring opinion. HUTCHINSON, J., filed a concurring opinion. FLAHERTY, J., filed a concurring and dissenting opinion joined by ZAPPALA and PAPADAKOS, JJ. . The record also indicates that appellant was told she could file for compensation, but that the appellee would "fight it.” . Dr. Morris stated that the consequences of another thrombosis episode "could be obstruction of the superior vena cava, which is the main blood vessel going into the heart." R. 124. . We have recently stated that, since the 1972 amendments, "It may now be said, generally, that an employer takes an employee as he comes. Specifically included in the new statutory conception of "injury” is the job-related aggravation, reactivation or acceleration of a pre-existing disease, even if the underlying disease itself was not caused by a work-related injury.” Pawlosky v. WCAB, 514 Pa. 450, 460-461, 525 A.2d 1204, 1209 (1987).

Opinion by Mb. Justice Horace Stern, The Philadelphia Zoning Board of Adjustment, having granted certificates of variance for the erection and occupancy of a garage building in a residential district, subsequently rescinded its action and ordered the revocation of the permits. The court below held the revocation improper and set it aside, — a decision from which the City of Philadelphia and some intervening neighbors now appeal. Ernest Ventresca, a sewer contractor, owner of a large unimproved lot on the east side of Oakley Street between Cottman Avenue and Walter Street, petitioned the Bureau of Engineering, Surveys and Zoning for permission to build thereon a one-story structure 30 by 30 feet to be used as a garage and repair shop for his trucks. His application was refused for the reason that Oakley Street on both sides for several blocks south from Cott-man Avenue was zoned as a “C” residential district and the intended uses were not permitted in such a district by the city’s Zoning Ordinance of August 10, 1933. He appealed to the Board of Adjustment which, after a public hearing, no protestants appearing, issued on August 10, 1946, certificates of variance authorizing the construction of the proposed building and the uses of it as applied for. Thereupon some 248 residents of the neighborhood signed and submitted protests to the Board, which then held another public hearing, re-in- speeted the premises and surrounding areas, and, on December 14, 1946, having concluded that the variances should not have been granted, directed the Bureau to revoke the permits that had been issued in accordance with the certificates. Meanwhile Ventresca had obtained from Court of Common Pleas No. '4 a writ of certiorari directed to the Board; the court, after hearing testimony, entered a decree sustáining plaintiff’s appeal and setting aside the revocation. The Act of May 6, 1929, P. L. 1551, provided that in cities of the first class the council might, by ordinance, divide the city into districts and regulate therein the erection and the use or occupancy of buildings. It also provided for the appointment of a Board of Adjustment, which (section 8) should have the power “To authorize, upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcemént of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” It will be noted that a variance is thus permissible only where, owing to special conditions, an unnecessary hardship would otherwise result. Accordingly it has consistently been held that the authority of the Board of Adjustment is not an arbitrary one and that it may grant a variance only if an álleged hardship is “substantial and of compelling force”, (Kerr’s Appeal, 294 Pa. 246, 253, 144 A. 81, 84); only “in cases of practical necessity, and for reasons that are ‘substantial, serious and compelling,’” (Valicenti's Appeal, 298 Pa. 276, 283, 148 A. 308, 310, 311); and only where the hardship is unnecessary and the interests of the owners and occupants of the neighboring properties are protected: Jennings’ Appeal, 330 Pa. 154, 159, 160, 198 A. 621, 623; Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 483-485, 41 A. 2d 744, 746, 747; Junge’s Appeal’ (No. 1), 89 Pa. Superior Ct. 543, 546; Appeal of Heman Johnson, 93 Pa. Superior Ct. 599; Heubner v. Philadelphia Saving Fund Society, 127 Pa. Superior Ct. 28, 36, 192 A. 139, 142. In tlie present instance there is nothing in the record to indicate that any such prerequisites for the granting of a variance existed. In the certificates which the Board issued for the construction of the building it was stated merely that “owing to the peculiar conditions surrounding these premises an unnecessary hardship would be imposed upon the owner if the strict requirements of the Ordinance as to rear yard, set bach and side yard are enforced,” and in one of the certificates concerning the proposed uses of the structure that “owing to the peculiar conditions surrounding these premises, a [use registration] permit for a garage and repair shop should, be granted”. There, is not so much as a pretense that any “unnecessary hardship” would befall the applicant if the ordinance were enforced — any hardship “substantial and of compelling force” — or that the case was one of “practical necessity”; indeed -it is not conceivable how any such conditions could have existed since the- proposed structure was to be erected upon a large vacant lot which plaintiff could not possibly have purchased in reliance on any preconceived ability to obtain a variance. According to the ordinance,a garage and repair shop such as that here contemplated is permitted only in industrial districts; its allowance is discretionary with the Board, subject to certain limitations, in commercial districts; it is not permitted at all in residential districts and can be established there only by a variance granted under the conditions prescribed by the statute, conditions which, as already stated, do not exist in the present case. The certificates, therefore, were wholly illegal; to attempt to justify them, as plaintiff seeks to do, by the .argument that the “C” residential district in which the lot is located is surrounded on the one side by an industrial and on the other by a commercial zone is obviously futile, because, if carried to its logical con- elusion, it would mean that the Board, which is merely an administrative tribunal, could override both the statute and the ordinance by changing a residential into a commercial or industrial district; — a power which is possessed' only by the city council. Plaintiff makes much of the fact that a variance was granted about a year previously for the erection and use of a structure for manufacturing of tools and instruments almost directly across the street from where his’ proposed garage was to be located; he also presented evidence of variances granted by the Board in other residential districts. This evidence should not have been received or, being received, should not have been considered, because the question whether such other variances were properly allowed would necessarily depend upon the circumstances in each case and would therefore have no bearing whatever upon the legality of the certificates involved in the present proceedings: Valicenti’s Appeal, 298 Pa. 276, 283, 284, 148 A. 308, 311; Hasley’s Appeal, 151 Pa. Superior Ct. 192, 193-195, 30 A. 2d 187, 188, 189. If, then, the certificates of variance were improperly and illegally granted, it would seem self-evident that the Board of Adjustment had not only the right but the duty to revoke them even if there were no express grant of power of revocation given to the Board by statute or ordinance. In fact, however, the City Ordinance of August 10, 1933, section 29(6) does expressly provide that the Board “may . . . cancel or revoke a Board of Adjustment certificate for the violation ... of this ordinance,” and since the Board is thus given the power to revoke a certificate if there be any violation of the ordinance on the part of the grantee it would be absurd to contend that it could not similarly revoke a certificate by the issuance of which it had itself violated both the ordinance and the Act of Assembly. We are not called upon to decide whether such a power of revocation exists where a certificate has been granted in the exercise of a permissible discretion, because here, as previously pointed out, there was nothing which called for or permitted the exercise of any discretion on the part of the; Board. And while, no doubt, if a permit or certificate has been lawfully granted and has been acted upon by reason of the property owner incurring obligations and proceeding to erect the building there may arise vested rights which are protected by the federal and state constitutions (Herskovits v. Irwin, 299 Pa. 155, 149 A. 195), in the present case plaintiff expended merely small sums for a plan and survey and was able to cancel the orders which he had given for the purchase of building material; he acquired therefore no rights which could not be recalled : Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A. 2d 367; (cf. Clarke’s Appeal, 37 D. & C. 670, 677-679; Gheen v. Mencer, 52 D. & C. 422, 427). The decree is reversed; the order of the Board of Adjustment directing the revocation of the permits is reinstated and the certificates of variance and permits issued to plaintiff are herewith declared null and void.

SPAETH, Judge: This appeal involves the issue of whether in imposing sentence the lower court complied with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant was charged with eight separate counts of theft by unlawful taking. The circumstances of each charge were similar; appellant had gained entrance to the victim’s house under some pretense and had taken money or other valuables. On March 3, 1977, appellant visited the house of Edward Mitchell and asked and was permitted to enter to use the bathroom. After she had left the house, Mr. Mitchell discovered that $50 had been removed from his dresser drawer. On March 18 appellant went to the house of Fanny Mainer. After she had left the house, $17 was missing from Ms. Mainer’s purse. On March 22, while with a friend at Rose Hunter’s house, appellant stole $60 of Ms. Hunter’s money. On April 2 appellant went to the house of Leanora Ebberhart and was allowed to use the telephone. When she left, Ms. Ebberhart’s watch and several other items totaling $228 were missing. On April 4, while in the house of Philomena Wells, appellant entered the living room and removed $40 and a necklace from Ms. Wells’ purse. On June 13 appellant obtained access to the house of James Owens under the pretense of making a telephone call and took property worth $18. Similarly, on June 14, she was allowed into the house of Cleo Dunn to make a telephone call and, while there, took property worth $122. Finally, on June 25 appellant was permitted to enter the house of William Williams, Jr., under the pretense of waiting for her brother, who lived in the apartment next door, and stole property valued at $155. At a hearing on August 22, 1977, appellant pleaded guilty to five counts of theft by unlawful taking. Sentencing was deferred pending the preparation and receipt of a pre-sentence report and the disposition of the three remaining counts. The sentencing hearing took place on October 4, 1977, and at that time appellant pleaded guilty to the remaining counts. Since five of the eight thefts involved property valued at $50 or more, they were misdemeanors of the second degree. The Crimes Code, Act of Dec. 6,1972, P.L. 1482, No. 334, § 1, as amended, Act of June 17, 1974, P.L. 356, No. 118, § 1, 18 Pa.C.S. § 3903(b)(1). The other three thefts involved property valued at less than $50, and were therefore misdemeanors of the third degree. Id. § 3903(b)(2). At the beginning of the sentencing hearing the lower court stated: THE COURT: Bring her forward. Having gone over the pre-sentence report, this young lady has been in all kinds of difficulty, and the Court has to do something about it. We can’t let this go on. It is the sentence of the Court— MR. RUSLANDER: Excuse me, Your Honor. THE COURT: Do you have anything to say? MR. RUSLANDER: Yes. We have Linda’s mother in court and we just want to comment on a couple of aspects of the pre-sentence report. N.T. Sentencing 2. Appellant’s mother testified that appellant had had a drug problem in the past but no longer wanted and no longer was involved with heroin. She also testified that appellant would be welcome to live at home, that their relationship had improved, and that she had been caring for appellant’s eight month old child. N.T. Sentencing at 2-7. After appellant’s counsel had finished questioning the mother, the following exchange took place: MR. RUSLANDER: Does your Honor have any questions of Mrs. Wicks? THE COURT: No. I have this report here that indicates a long history of stealing. Something has to be done about it. She was put on probation twice; that didn’t do any good. MR. RUSLANDER: Your Honor, when we first entered the guilty plea, I remember Mr. Hilner standing up and saying he thought this young lady should be taken out of the criminal system. We would only ask that the Court take into consideration that she has spent the last three months in jail and give her a chance. THE COURT: She has been given two chances. MR. RUSLANDER: I believe the only probation she ever received was in ’76 from Judge Ross. THE COURT: She received one in ’76 and also received one in May of ’77. MR. RUSLANDER: That’s when we entered the guilty plea, I think, Your Honor. THE COURT: We can’t permit this to go on in the community and I don’t intend to. I’m ready to sentence. Anything else to be said. MR. RUSLANDER: Linda, do you have something you’d like to say to the Court before sentence is imposed? THE DEFENDANT: I learned my lesson. N.T. Sentencing at 7-8. The court then sentenced appellant to two to four years in prison on one misdemeanor of the second degree theft, and suspended sentence on the remaining four misdemeanors of the second degree, and to one to two years in prison on each of the three misdemeanors of the third degree, all sentences to be concurrent. Thus the total maximum imprisonment faced by appellant was two to four years. Appellant filed a petition for resentencing with the lower court. The court entered an order providing that “a hearing had to be arranged by the trial judge if he should determine that the request is justified.” (Order of November 2, 1977.) The trial judge did not arrange a hearing, however, and appeal was taken to this court. Under the Pennsylvania system of indeterminate sentencing, “[imposition of a proper sentence is a matter vested in the sound discretion of the trial court, whose determination is to be respected unless it constitutes a manifest abuse of discretion.” Commonwealth v. Valentin, 259 Pa.Super. 496, 499-500, 393 A.2d 935, 937 (1978); see Commonwealth v. Knight, 479 Pa. 209, 212, 387 A.2d 1297, 1299; Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In imposing sentence the court “must not overlook pertinent facts, disregard the force of the evidence, commit an error of law ... or inflict punishment exceeding that prescribed by statute.” Commonwealth v. Knight, supra, 479 Pa. at 212, 387 A.2d at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, supra; Commonwealth v. Riggins, supra. In Commonwealth v. Riggins, supra, the Supreme Court of Pennsylvania held that to further compliance with these principles, the lower court must state on the record its reasons for the sentence imposed. See Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Bolyard, 256 Pa.Super. 57, 389 A.2d 598 (1978). Thus in Commonwealth v. Kostka, supra, the Court vacated the sentence and remanded for resentencing because “the trial judge failed to articulate reasons for the sentence imposed reflecting ‘weight’ was accorded the statutory guidelines for sentencing.” 475 Pa. at 90, 379 A.2d at 887. (emphasis added) The Sentencing Code provides several possible dispositions of criminal defendants, including probation, total confinement, and partial confinement. The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1321(a) (Supp.1977). In this case, appellant’s counsel requested probation, basing his request on the statement by the Commonwealth that it only sought to “get her out of the system right now, she has background problems”, N.T. 11, and on the testimony by appellant’s mother that appellant was no longer involved with drugs and her situation at home had improved. In appraising this request, the court was obliged to accord weight to the following factors: (1) The criminal conduct of the defendant neither caused nor threatened serious harm. (2) The defendant did not contemplate that his conduct would cause or threaten serious harm. (3) The defendant acted under a strong provocation. (4) There were substantial grounds tending to excuse or justify .the criminal conduct of the defendant, though failing to establish a defense. (5) The victim of the criminal conduct of the defendant induced or facilitated its commission. (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained. (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime. (8) The criminal conduct of the defendant was the result of circumstances unlikely to recur. (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime. (10) The defendant is particularly likely to respond affirmatively to probationary treatment. (11) The confinement of the defendant would entail excessive hardship to him or his defendants [sic]. (12) Such other grounds as indicate the desirability of probation. Id. § 1322. If after this weighing, the court concluded not to impose a sentence of probation, it was next obliged to consider whether total confinement as opposed to partial confinement was appropriate. See Commonwealth v. Kostka, supra, 475 Pa. at 91, 379 A.2d at 887. Here, the lower court did have a pre-sentence report, and it did make some statements of record reflecting an opinion that probation would not be appropriate. These statements, however, fall short of complying with the requirements of Commonwealth v. Riggins, supra. In the first place, the court’s statement that appellant had twice before been on probation was factually incorrect, for, as appellant’s counsel brought to the court’s attention, appellant was only once before on probation. In the second place, and of decisive importance, the court’s statements were insufficient because, in consequence of their brevity and conclusory quality, they do not manifest a consideration of the statutory guidelines for sentencing, nor otherwise explain the reasoning behind the sentences imposed. Nor is there any statement of reasons in the lower court’s opinion filed pursuant to this appeal. See Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978) (where neither record nor lower court opinion contains reasons for sentence imposed, remand for resentencing required). It is true, as the Commonwealth points out, that the court did have a pre-sentence report and did hear testimony concerning appellant’s background, drug problem, and home life. Testimony, however, and the contents of a pre-sentence report, cannot constitute a statement of reasons; they rather constitute only the beginning of the process by which the court formulates its statement of reasons. Having received the testimony and pre-sentence report, the court must evaluate them; the testimony may well be in conflict, or not be credible, or otherwise not acceptable to the court, and the same may be so of the contents of the pre-sentence report. This evaluation completed, the court must examine the facts, as it has determined them to be, in light of the statutory guidelines for sentencing. Then, and only then, should the court decide what sentence should be imposed. Finally, having made that decision, the court must state its reasons for the sentence. It is not our province to guess at the lower court’s reasons for the sentence, and we must not substitute our thought processes for what might have been the thought processes of the lower court. It has not been held that the court’s statement of reasons must specifically cite to or include the language of the Sentencing Code. However, the statement of reasons must demonstrate that the court has considered the factors specified in the Code, and that it has balanced the specific background, character, and circumstances of the defendant with the circumstances of the crime, the need for incarceration, to prevent future offenses by the defendant and by others, and the possibility of rehabilitation. See Commonwealth v. Valentin, supra (statement of reasons did not specifically cite to the Sentencing Code but adequately reflected balancing of all relevant factors). The failure of the lower court to file such a statement of reasons here was error. The sentences are vacated and the case is remanded for resentencing. VAN der VOORT, J., concurs in result. . The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3921. 2. At trial the district attorney had said: If we can get her out of the system right now, she has background problems, if we can do something to get her out of the system that will satisfy the Commonwealth. All I am looking for is a presentence report. N.T. 11. . In Commonwealth v. Riggins, supra, the Supreme Court stated that “a defendant who seeks to challenge the propriety of his or her sentence should first present his or her claim to the trial court.” 474 Pa. at 136, 377 A.2d at 151. See Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978). . Section 1325 of the Sentencing Code provides: The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because: (1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime; (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (3) a lesser sentence will depreciate the seriousness of the crime of the defendant. • 18 Pa.C.S. § 1325 (Supp.1977) . The lower court filed an opinion but did not discuss the sentencing issue on the ground that appellant had not filed a petition to withdraw her guilty pleas. It is clear, however, that appellant was correct in filing a petition for reconsideration of her sentences without filing a petition to withdraw her guilty pleas. Commonwealth v. Walls, supra, 481 Pa. at 4, 391 A.2d at 1065. . Thus in Commonwealth v. Riggins, supra, the Court cited as one ground for requiring a statement of reasons the fact that such a statement “will be invaluable in aiding appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.” 474 Pa. at 131, 377 A.2d at 148. Indeed, without a full statement by the lower court informing us why it imposed a particular sentence, we cannot review a claim that the sentence was excessive. . This would be a preferred procedure, however. . Appellant has also argued that the sentences were excessive. Since we remand for resentencing, we do not reach this issue. In fact, without a statement of reasons we cannot decide the issue of the excessiveness of the sentences under the circumstances. See note 6 supra.

OPINION ZAPPALA, Justice. In this direct appeal we are asked to determine whether the Philadelphia County Court of Common Pleas properly found the provisions of 42 Pa.C.S. § 9714, which impose an enhanced mandatory sentence when a person is found to be a high risk dangerous offender, to be unconstitutional because the statutory scheme places the burden on the defendant to rebut the presumption that he is a high risk dangerous offender by clear and convincing evidence. For the reasons that follow, we affirm. On February 18, 1998, at approximately 12:30 p.m., the victim, Marco Rivera, was entering the basement area of a store through a street level stairway. Appellee put a gun to Rivera’s head and demanded that he remove a gold necklace he was wearing. When Rivera hesitated, Appellee snatched the necklace from his neck. Appellee then asked Rivera if he had any money to which Rivera replied he did not. Thereafter, Appellee fled. Several days later, Rivera saw Appellee in the same area and summoned police. Appellee was arrested and charged with robbery, theft, receiving stolen property, simple assault, reckless endangerment, possession of an instrument of crime, carrying a firearm without a license, carrying a concealed firearm without a license, terroristic threats and possession of a firearm by a former convict. Following a bench trial on July 9, 1998, Appellee was convicted of all of the foregoing charges. Prior to sentencing, the Commonwealth was made aware that Appellee had previously pled guilty to a charge of aggravated assault. Accordingly, the Commonwealth requested that the court apply 42 Pa.C.S. § 9714(A)(1), which has been popularly referred to as a “strike two” sentencing provision, and sentence Appellee to a mandatory ten to twenty year sentence. Section 9714(a)(1) specifies that [a]ny person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence and has not rebutted the presumption of high risk dangerous offender ... be sentenced to a minimum sentence of ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. (Emphasis added). Subsection (a.l), entitled “Mandatory maximum,” provides that [a]n offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence.... The provision relating to the “high risk dangerous offender presumption” is found at subsection (b). This section states: For the purposes of subsection (a), an offender shall be presumed to be a high risk dangerous offender and shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold: (1) The offender was previously convicted of a crime of violence. The previous conviction need not be for the same crime as the instant offense for this section to be applicable. (2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention or on probation or parole shall not be considered in computing the relevant seven-year period. Convictions for other offenses arising from the same criminal transaction as the instant offense shall not be considered previous convictions for the purpose of this section. For purposes of this section previous conviction shall include any conviction, whether or not judgment of sentence has been imposed or litigation is pending concerning that conviction. Subsection (c)(1) of Section 9714 provides that a court shall hold a hearing for an offender presumed to be a high risk dangerous offender pursuant to the provisions of subsection (b). The court shall schedule a hearing and receive such evidence from the offender as may be relevant to whether the presumption shall apply. If the offender presents evidence in opposition to the presumption, the attorney for the Commonwealth may present evidence in support of the presumption. Subsection (c)(2) then specifies twelve case specific factors, which the court is to consider in making its determination of whether the offender has rebutted the presumption. The trial court found Section 9714 to be unconstitutional and refused to impose a mandatory sentence of ten to twenty years of imprisonment pursuant to the foregoing provisions as requested by the Commonwealth. Instead, the court sentenced Appellee to a term of imprisonment of five to ten years on the robbery charge and lesser concurrent sentences on the remaining charges. Specifically, the court found that the provision impermissibly sets up the presumption that the offender is a high risk dangerous offender, then places the burden of proof on the offender to rebut the presumption by clear and convincing evidence. The court likened the scheme set forth in Section 9714 to that of the Registration of Sexual Offenders Act, 42 Pa.C.S. §§ 9791-9799.6, which, at the time of sentencing, the Superior Court had found to be unconstitutional in Commonwealth v. Halye, 719 A.2d 763 (Pa.Super.1999). Thus, the court concluded that Section 9714 violated Appellee’s procedural due process rights pursuant to both the state and federal constitutions since, in the court’s view, the burden of demonstrating that an offender is a high risk dangerous offender must rest with the Commonwealth. The Commonwealth asserts that the trial court erred in concluding that Section 9714, like the Registration of Sexual Offenders Act, violates due process. Specifically, the Commonwealth notes various differences between Section 9714 and the Registration of Sexual Offenders Act, which, in its view, make the two distinguishable. The Commonwealth points out that this Court found the Registration of Sexual Offenders Act to be unconstitutional because it required the trial court to make a subjective determination of whether the offender was a “sexually violent predator,” but did not require the prosecu tion to demonstrate this fact; rather, the Act placed the burden on the offender to disprove his or her status as a sexually violent predator. The Commonwealth further notes that our Court concluded in Williams that because the question of whether an offender was a sexually violent predator was not “a straightforward issue susceptible of objective proof’ where the “risk of error was slight,” the risk of error, and thus any burden of proof, must be borne by the prosecution. Appellant’s brief at 14, citing Williams, 733 A.2d at 607. Conversely, the Commonwealth notes that Section 9714 is different from the Registration of Sexual Offenders Act in that it places upon the Commonwealth the initial burden of demonstrating that the offender was convicted of a “crime of violence” within the past seven years before the questioned presumption becomes applicable. The Commonwealth further notes that the existence of the required prior offense is a straightforward issue susceptible of objective proof and the risk of error in making this finding is slight. Thus, the Commonwealth maintains that Section 9714 comports with due process since the prosecution must prove by a preponderance of the evidence any aggravating factors that require a harsher sentence. Appellee counters that the determination of whether a defendant is a high risk dangerous offender is made under the statute without requiring the Commonwealth to prove the case-specific factors relating to high risk dangerous offenders. This, Appellee maintains, violates due process. Appellee argues that the ultimate judicial determination of whether an offender is a high risk dangerous offender is neither straightforward nor susceptible of objective proof as it requires the court to apply a list of disparate factors in making its assessment. Additionally, the Appellee points out that many of the case specific factors listed in Section 9714 are the same factors listed in the Registration of Sexual Offenders Act. At the outset we note that in both Section 9714 and the Registration of Sexual Offenders Act the legislature has attempted to shift the burden onto an offender to prove that he or she does not fall into a legislatively presumed category of offenders based upon some predicate circumstance. In the Registration of Sexual Offenders Act, all persons convicted of certain predicate acts were required to disprove their status of being a sexually violent predator. Likewise, pursuant to Section 9714, all persons convicted of certain predicate crimes of violence, who were also convicted of another crime of violence within seven years, must disprove their status as a highly dangerous offender. Thus, in both instances, the legislature has made a determination that although certain offenders meet the predicate criteria they might not, in fact, fall into the legislatively proscribed category, i.e., sexually violent predator or highly dangerous offender, which will subject them to greater punishment. The burden of demonstrating whether this presumption should continue, in both instances, rests with the offender. Both provisions list subjective case specific criteria that the trial court is to use in evaluating whether the offender is, in fact, a sexually violent predator or. highly dangerous offender. In Williams, we held that placing the burden of proof on the offender in such a situation was improper and violative of procedural due process. We concluded that the legislative scheme set forth in the Registration of Sexual Offenders Act was similar to New Jersey’s sexually violent predator statute, which was found to be unconstitutional by the Third Circuit in E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997). Moreover, we distinguished the legislative scheme found in the Registration of Sexual Offenders Act from Section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which increased an offender’s mandatory minimum sentence to five years of imprisonment but did not increase the mandatory maximum sentence, when found to be in visible possession of a firearm. Both our Court and the United States Supreme Court upheld the constitutionality of Section 9712 in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), and McMillan et al. v. Commonwealth, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Relevantly, in Williams, we observed the following: Unlike the situation in Wright/McMillan, where the determination of whether one was in visible possession of a firearm was a “straightforward issue susceptible of objective proof’ and where “the risk of error [was] slight,” here, as in Vemiero, a subjective assessment of an offender’s potential future dangerousness is a necessary inquiry in determining whether one is a sexually violent predator. As noted, the Board in making its assessment considers a variety of elements in reaching its determination regarding whether an offender is a sexually violent predator. Additionally, just as in Vemiero, the evidence that could be presented at the sexually violent predator proceeding may not have been presented at trial and will largely consist of the testimony of the offender and the victim. Resolution of issues regarding the evidence presented at the proceeding are not subject to the rules of evidence according to the Act and the court is under a time restriction to conduct that proceeding. Accordingly, the risk of an error at a sexually violent predator proceeding is far greater than was present in Wright/McMillan. Given the foregoing analysis, we believe that the state must bear the burden of demonstrating that an offender is a sexually violent predator. Where resolution of competing facts is outcome determinative, “requiring the prosecutor to affirmatively convince the court of the important facts can be expected to materially reduce the risk of error.” Verniero, 119 F.3d at 1109. Williams, 733 at 607. Thus, in Williams, we found the legislative scheme of placing the burden of proof on the offender to be improper and violative of the procedural due process guarantees of the Fourteenth Amendment. We likewise conclude that this same scheme used by the legislature in Section 9714 is violative of due process. The Commonwealth’s attempts to distinguish Section 9714 from the scheme set forth in the Registration of Sexual Offenders Act are to no avail. The fact that in the Registration of Sexual Offenders Act conviction of the predicate crime triggered the presumption and here proof that the offender committed a prior crime of violence within seven years triggers the presumption is really a distinction without a difference. The critical similarity between the provisions is that both place upon the offender the burden of rebutting a mandatory presumption that, if not rebutted, will subject them to greater punishment. Here, as in Williams, a subjective assessment of an offender’s potential future dangerousness must be made through the court’s consideration of a variety of elements. Accordingly, resolution of competing facts presented at the post-trial proceeding, which is not governed by the rules of evidence, will most likely be outcome determinative. Thus, as we held in Williams, the Commonwealth must be required to affirmatively convince the court of such facts. Based on the foregoing, we conclude that the trial court properly found that Section 9714 violated Appellee’s procedural due process rights by placing upon him the burden of rebutting the presumption that he is a high risk dangerous offender. Accordingly, we affirm the judgment of sentence. Justice CASTILLE files a dissenting opinion. Justice SAYLOR files a dissenting opinion in which Justice CASTILLE joins. . Pursuant to Section 722(7) of the Judicial Code, 42 Pa.C.S. § 722(7), this Court has exclusive jurisdiction of appeals from orders of the common pleas court in matters where the court of common pleas has held invalid as repugnant to the Constitution, treaties or laws of the United States, or the Constitution of this Commonwealth, any treaty or law of the United States or any provision of the Constitution of, or of any statute of, this Commonwealth, or any provision of any home rule charter. . 42 Pa.C.S. § 9714(g) sets forth the specific offenses deemed to be "crimes of violence” pursuant thereto. . Appellee challenged the constitutionality of the relevant provisions of Section 9714 pursuant to both the state and federal constitutions. . This Court subsequently found the Registration of Sexual Offenders Act to be unconstitutional in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999), cert. denied 528 U.S. 1077, 120 S.Ct. 792, 145 L.Ed.2d 668, 2000 U.S. Lexis 146 (2000). . Section 9714 actually only requires the Commonwealth to carry a burden in this regard where the fact of a prior conviction is contested. 42 Pa.C.S. § 9714(D). . Appellee also argues, in the alternative, that the trial court was correct in concluding that Section 9714 is void for vagueness since the provision fails to define the term "high risk dangerous offender.” Appellee points out that although Section 9714 directs the trial court to apply the twelve factors listed therein, the court must, in the end, formulate its own notion of what constitutes high risk and dangerousness since the legislature has failed to provide guidance regarding these terms. Although Appellee’s argument in this regard may have merit, given our disposition herein, we need not address this alternate issue. . When comparing the two provisions, both list many of the same factors for the court's consideration. Specifically, The Registration of Sexual Offenders Act, 42 Pa.C.S. § 9794(C) lists the following criteria: (1) Age of the offender. (2) Offender’s prior criminal record, sexual offenses as well as other offenses. (3) Age of the victim. (4) Whether the offense involved multiple victims. (5) Use of illegal drugs by the offender. (6) Whether the offender completed any prior sentence and whether the offender participated in available programs for sexual offenders. (7) Any mental illness or mental disability of the offender. (8) The nature of the sexual contact with the victim and whether the sexual contact was part of a demonstrated pattern of abuse. (9) Whether the offense included a display of unusual cruelty by the offender during the commission of the crime. (10) Any behavioral characteristics that contribute to the offender's conduct. 42 Pa.C.S. § 9714(c)(2) lists the following factors: (i) Age of the offender. (11) Age of the victim. (iii) Use of illegal drugs or alcohol by the offender. (iv) Offender's prior criminal record. (v) Whether the offense involved multiple victims. (vi) Offender's failure to complete a prior sentence. (vii) Any mental illness or mental disability of the offender. (viii) If the offense included attempted or actual sexual contact with the victim and was part of a demonstrated pattern of abuse. (ix) If the offense included a display of unusual cruelty by the offender during the commission of the crime. (x) The nature and circumstances of the current offense. (xi) The use of a deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) during the commission of the current offense. (xii) The impact of the current offense on the victim and the extent of injury caused to the victim as a result of the current offense. . Just as we noted in Williams, because we find that Section 9714 to be violative of the federal constitution, which establishes the minimum due process requirements, we need not at this juncture analyze the matter pursuant to our state constitution. See Williams, 733 A.2d at 608. . The sentence range for Appellee’s underlying crimes is five to ten years of imprisonment. If Section 9714 is applicable, his mandatory sentence would be increased to ten to twenty years.

Opinion by Mr. Justice Elkin, It may now be accepted as settled law, under the authority of English and American cases, that courts of equity if the facts warrant will restrain an employee from making disclosure or use of trade secrets communicated to him in course of a confidential employment. The character of the secrets, if they be peculiar and important to the business, is not material. They may be secrets of trade, or secrets of title, or secret processes of manufacture, or any other secrets important to the business of the employer. They, however, must be the particular secrets of the complaining employer, not general secrets of the trade in which he is engaged, nor even the same secrets as those sought to be protected, if they be discovered by the independent investigation of outside parties. The duty of the servant not to disclose the secrets of the master may arise from an express contract, or it may be implied from their confidential relations. It is likewise true that other persons who induce such disclosures by an employee, knowing of his contract not to disclose, or knowing that the disclosure is in violation of the confidence reposed in him by his employer, will be enjoined from making use of the information so obtained. Where confidence is reposed, and the employee by reason of the confidential relation has acquired knowledge of trade secrets, he will not be permitted to make disclosure of those secrets to others to the prejudice of his employer. An injunction may be granted to enjoin the use of a trade secret, or-to restrain the manufacture and sale of an article so made against a defendant, who acquired his knowledge in violation of an express contract not to divulge, or in breach of confidence between employee and employer. From the numerous reported cases in which these questions have been considered, the following may be cited in support of the principles, above stated: Sooy v. State, 41 N. J. Law 394; Vulcan Detinning Co. v. American Can Co., 67 Atl. Repr. 339; Stone v. Goss, 55 Atl. Repr. 736; Westervelt v. National Paper Co., 57 N. E. Repr. 552 (Ind.); Thum Company v. Tloczynski, 38 L. R. A. 200 (Mich); Eastman Co. v. Reichenbach, 20 N. Y. Supp. 110; Sterling Varnish Co. v. Macon, 217 Pa. 7; 2 Story Eq. Jur., Sec. 952. That an employee may be enjoined from making disclosure, or use, of a trade secret communicated to him in course of a confidential employment is not disputed by counsel for appellants, but it is denied that the doctrine has any application to the facts of the present case. The position of appellants can be best stated in the language of their counsel as it appears in the printed argument. It. is as follows: “The case at bar is not governed by that class of cases which decide that where a trade secret is communicated to an employee in- confidence, and the employee undertakes in breach of the confidence thus reposed and. the trust implied by such confidence to reveal the trade secret, a court of equity will intervene to protect such secret.” If this, position is sound it would, necessarily follow that the learned court below erred in the view taken of the case and the disposition made of it. Hence, it is of first importance that this fundamental and controlling question be settled.. If the equitable doqtrine hereinbefore mentioned has no appli cation to the facts of the present case, appellee is ont of court; but, on the other hand, if the doctrine is applicable, a very different situation is presented. It is apparent that whether this is a case to which the doctrine is applicable depends upon the facts. To be entitled to equitable relief the burden was on appellee to show; (1) that there was a trade secret, or, as in the case at bar, a secret process of manufacture; (2) that it was of value, to the employer and important in the conduct of his business; (3) that by reason of discovery or ownership the employer had the right to the use and enjoyment of. the secret; and, (4) that the secret was communicated to. Schnelbach while he was employed in a position of trust, and confidence under such circumstances as to make it, inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer. That there was a trade secret in the present case is not denied by the parties and is apparent from the record. Both sides have taken pains to guard the. secret at the hearing in the court below and in the argument, here. It is not the intention of either party to make, further disclosure of the secret, and both want it pro-: tected so that others may not acquire knowledge of it.. We, therefore, may safely conclude that there was a trade secret which somebody is entitled to have protected. Likewise, it may be said that there is no dispute as to the secret being important and valuable. The course of this litigation shows that both sides so regard it. This point may also be eliminated from further com sideration. The important question for decision is who,, if any one, is entitled to the use and enjoyment of the secret involved in this controversy. The situation of the-parties, and their respective contentions, can be made more clear by a general summary of the facts, relating to the matter in litigation. Macbeth, president of appellee, a corporation, is an experienced glass manufacturer, in which business he has been engaged for a period of forty years. During a considerable portion of. that time he. has made a practical study of the chemistry of glass composition and manufacture with the view of discovering new processes for making and improving the finished product as an article of trade. Having conceived the idea that his company should produce a semi-translucent glass, possessing greater diffusive. qualities than any glass then known, he began to make experiments in 1900 for the purpose of discovering a process by means of which this result could be obtained. He carried on his personal experiments at times fob a period of two years. In doing this experimental work he studied leading authors on the subject and in 1902 employed a recognized expert in the production of new glasses to assist in making experiments. Up to this time he had not succeeded in securing a satisfactory result although he had acquired valuable knowledge on the subject. In September, 1902, he employed Silverman, a young chemist, to assist him in further experimentation. He discussed the whole subject with Silverman, gaye him his ideas, suggested ingredients to be used as a basis of the formulae deemed necessary in the preparation of what is known in the manufacture of glass as the “batch,” and exercised general supervision over his work. Silverman continued making experiments for several months under the personal direction of Macbeth to whom he made daily reports. He testified that he did no independent work on his own account, nor does he claim that anything discovered by him during the period of his employment, resulted to his personal benefit. In all he made one hundred and one experiments and reported each one, together with the ingredients used in the formula, to Macbeth. These experiments were in the nature of laboratory tests, being made in small pots, improvised for the purpose, and lacked confirmation by testing in the large melting pots or furnaces of the factory. In June, 1903, after several months of experimentation, he reported to Macbeth one experiment and exhibited the result of that test. Macbeth testified that the result of this experiment satisfied him the particular' formula used would produce the quality of glass he desired to make. It was necessary to try out the experiment in the large pots or furnaces of the factory in order to test the practical value of the formula in making glass in large quantities. Silverman was not a practical glass man and knew nothing about the manufacturing end of the business. There was nothing further for him to do, but from Macbeth’s point of view it was necessary to have the formulae tested when applied to large quantities of glass in the melting furnaces. It was at this point Schnelbach, the superintendent, was called in and instructed to take the formulae with which Silver-man and Macbeth had been experimenting, and test them out in the factory furnaces. Schnelbach was superintendent of the manufacturing department and had general charge of the plant. He exercised supervision over the employees and directed not only what work was to be done but the manner of doing it. He was the proper person to take charge of the formulae and to supervise the tests. He did so by the direction of Macbeth to whom he reported the results of his work. He caused the batches to be mixed according to some of the Silver-man formulae selected for the purpose of making the tests, and filled the trial furnace. He mixed four batches and made four trials before a satisfactory glass was produced. At the fourth trial he succeeded in making what is known in this case as Alba glass and this is what Macbeth started out to accomplish. It was the result toward which all of the experiments made during a period of three years tended. These tests demonstrated, that in melting the glass, a proper length of time, not too long, not too short, was required before taking down the stopper and working the glass. When the glass is taken out too soon, it is more opaque than Alba glass should be; when opened up too late, it is objectionable because its transparency affects the translucent quality of the glass. Hence the necessity of melting to a proper point and working the glass at a propér time. Schnelbach claims to have discovered how to do these things during the course of the four trials made by him, and that the secret is his and not that of Macbeth, or his company. This position ignores the whole trend of events leading up to the final result, and disregards the essential element in the making of Alba glass, namely, the secret formula. So far as the testimony discloses, Alba glass cannot be made without using the ingredients of the secret formula. The glass may be melted to the-point required; it may be opened up and worked at the proper time; everything may be done exactly as Schnelbach testified it should be done; but, if the batch does not- contain the essential ingredients of the secret formula, Alba glass cannot be made. The formula is the basis of the secret process upon which the manufacture of this particular quality of glass depends. The. mixing of the batch and the melting of the glass are'the mechanical means employed to accomplish the results produced by the secret formula. We have reviewed the points in controversy at length in order to determine just what the real secret was which the courts are asked to protect, and have concluded that it was the formula containing the essential ingredients required in the manufacture of Alba glass. This formula belonged to the Macbeth company; it was communicated to Schnelbach by Macbeth for the purpose of making a particular quality of glass for the use and benefit of the appellee. The acts of Schnelbach up to within a few months of the time he decided to leave the employ of appellee clearly indicate that he did not regard the secret process as his discovery or property. The formula was. tested out under his supervision in 1903, and he continued to make Alba glass for appellee for a period of seven years after that time. During all of this time so far as the testimony discloses, he asserted no claim as the discoverer of the process, nor did he deny the right of appellee to appror priate all the benefits resulting from its exclusive use. This is significant in view of the position now taken by him that he was the original discoverer. Certainly, under these circumstances, the employer had the right to the use and enjoyment of the secret process.. There still remains another question for consideration. There was no express contract on the part of Schnelbach not to disclose the trade secrets of his employer, and it becomes necessary to inquire whether because of the position he occupied and the confidence reposed in him, there arose an implied duty not to disclose. His employment began with the incorporation of the appellee company in 1899 and continued until he left it in 1910. Prior to 1899 he had been in the employ of the Evans Company, which was subsequently merged with the present company, for upwards of seven years. In all, his employment with the two companies covered a period of sixteen years. The testimony shows that he was a trusted and valued employee, that for many years he had general supervision of the plants and manufacturing end of the business; that his employers reposed great confidence in him and communicated to him without reserve all the secrets of their business; that in the manufacture of glass there are many trade secrets; and that, nothing was withheld from him in connection with these secrets, but that he was treated at all times on the basis of a. confidential relation. The knowledge of the secret formula involved in this controversy came to him by reason of the position he occupied and the confidence reposed in him by his employers. The secret formula was communicated to him, not for his personal use, nor that he might profit by the knowledge thus obtained, but for the sole benefit of his employers whose interests he was in duty bound to protect. It, therefore, would be inequitable and unjust that he should either disclose .it to others, or make use of it himself, to the prejudice of his employers who were entitled as against him and. those associated with him, to whatever advantage the manu facture of glass by the secret process gave their company. We agree with the learned court below that as shown by the testimony the Jefferson Glass Company acquired its knowledge of the secret formula used in making Alba glass from Schnelbach in breach of the trust and confidence reposed in him by appellee, and in violation of a contract implied from that confidential relation not to disclose trade secrets. Every fact in the case shows that appellants intended to do what the court below found they did, namely, manufactured Alba glass by the secret process and sold the same in the market in competition With appellee. If Schnelbach was properly enjoined, so was the Jefferson Glass Company, because it is clear that the officers, directors and stockholders of this company intended to and did make use of the secret process of appellee in manufacturing glass of the same quality as Alba. We have carefully examined Slemmer’s App., 58 Pa. 155, so strongly relied on by appellants, but have not been convinced that it has any application to the facts of the case at bar. The rights of parties under a patented invention were involved in that case, and the equitable doctrine which protects an employer in the use and enjoyment of his trade secrets was not discussed. To save confusion it may be remarked that the word Alba, so frequently used in this case, is simply a trade name adopted by appellee to designate the particular kind of glass manufactured by use of the secret formula, and has no other significance. The learned court below gave this case most careful consideration, and as we view it, reached a just and proper conclusion under the law as applied to the facts. We also agree that the decree entered must be understood in the sense suggested by the court below in the opinion sur exceptions to form of decree. Appellants are restrained from making and selling Alba glass under any name whatever, because this would be the appropri ation of a trade name to which appellee is entitled. They are also enjoined from making and selling the same quality of glass by any other name, if the glass is made by using the essential ingredients of the secret formula. In other words, they cannot make and sell the same quality of glass, made by the same secret process, by simply giving it another name. This does not mean that they may not make any glass to serve the same purpose as that for which Alba glass is made, if they discover a new process entirely different from the secret process of the appellee to accomplish the result. But it does mean that they must not produce this particular quality of glass by making use of the secret formula protected by the decree, or by a practically similar process in which the essential ingredients of that formula are used; nor can they by indirection, or by simulating the secret formula of appellee, do that which the decree intends to forbid. With this understanding there is no occasion to modify the decree. Decree affirmed at cost of appellants.

Opinion by Mr. Justice Simpson, Plaintiff averred, in its statement of claim, that defendants verbally agreed to deliver to it 15,000 tons of coal; that they also made a contract with the Regal Coal Mining Company to deliver this' coal to plaintiff (which contract is now claimed to be a sufficient memorandum under section 4 of the Sales Act of May 19,1915, P. L. 543); and that defendants broke their agreement with plaintiff, whereby it suffered a loss of $78,750. Defendants’ affidavit of defense alleged the agreement with plaintiff was not enforceable because of the foregoing section of the Sales Act, and denied that their contract with the Regal Coal Company satisfied the requirements thereof. Plaintiff ordered the case for a hearing upon the law point thus raised, the court belott entered judgment for defendants, and plaintiff appeals, raising the three questions hereinafter stated. (1st.) Where a verbal contract is for a sale in excess of $500, must the statement of claim set forth the facts showing that the requirements of section 4 of the Sales Act have been complied with, or is this merely a matter for proof at the trial? The section is as follows: “A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable......unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the con tract or sale be signed by the party to be charged or his agent in that behalf.” It would, of course, be a waste of time to spend days or even minutes in a trial, only to find, at the end thereof, that there could be no recovery because of the provisions of the act; and, since it is easy to set forth the essential facts permitting recovery (if such there be), we will not add another count to the public’s indictment of judicial proceedings because of the “law’s delays.” The purpose of a statement is to set forth facts which show a claim “enforceable” by action; and it necessarily fails of this' purpose unless they are averred. .There is a vital distinction between cases where the claim was originally enforceable by suit, but recovery thereof may or may not have been lost by a failure to bring it within the time prescribed by the statute of limitations; and those, like the present, where the claim never was enforceable unless the statutory requirements were observed. Under the former, the facts necessary to take the case out of the statute need not be set forth (Heath v. Page, 48 Pa. 130; Barclay v. Barclay, 206 Pa. 307); under the latter, which are in effect proceedings for specific performance of the contract (Herzberg v. Irwin, 92 Pa. 48; Murray v. Ellis, 112 Pa. 485; Black v. American International Corporation, 264 Pa. 260), they must be averred in order to show a recovery may be had under the statute: Hogle v. De Long Hook and Eye Co., 248 Pa. 471. Were the question res nova we would hesitate ere we decided not to so require in both classes of cases; we have, however, inherited the rule of lack of necessity in the former, and hence will follow it; but we have not inherited a duty to penalize the public by extending it. (2d.) Was the agreement with the Begal Coal Mining Company a sufficient memorandum under the act? Upon this point we need only quote the following from the able opinion of Judge Steen in the court below: “There is no allegation or contention on the part of the plaintiff that any of the goods contracted to be sold were accepted or received by it, or that anything was given in earnest to bind the contract, or in part payment. The plaintiff avers, however, that the statement of claim sets forth a [sufficient] ‘memorandum in writing' ......[consisting] of a sales contract to which the defendants and a corporation known as the Regal Coal Mining Company are parties [dated three months later than the contract in suit], wherein and whereby the latter agrees to sell to the defendants 15,000 tons of coal (the same quantity as the plaintiff alleges it agreed to purchase from the defendants). It is not thought, however, that this written contract can be held to be a writing evidencing the contract between the plaintiff and the defendants. It is true that no express form of contract is necessary in order to constitute a compliance with the statute of frauds. Any note or memorandum in writing indicative of the intent of the parties, and being sufficiently precise to enable one to ascertain the terms of the contract, and signed by the party to be charged, is sufficient. But the written contract in the present case is a contract between the defendants and a third party and is not indicative or expressive of any contract wherein or whereby the defendants agreed to sell coal to the plaintiff. Indeed, the terms of the alleged contract upon which the present suit is brought and the terms of the written contract [between defendants and the Regal Coal Mining Company] are wholly different. The price is different. There is in the one contract a more detailed specification of the grade of coal, and there are various terms (nine in number) set forth in the written contract which do not appear, nor are alleged to exist, in the contract between the parties to this suit. But in addition to this the essential point is that the written agreement nowhere sets forth or expresses either an intent on the part of the defendants to sell coal to the plaintiff or an admission that such a contract had been made. It is ti*ue that in the written agreement it is [stated] that the coal is to be shipped to ‘Mason-Heflin Coal Company or other parties’; but this, so far from indicating any agreement to ship to the plaintiff, on the contrary shows that it was to be entirely within the discretion of the defendants as to where the coal was to be shipped, since they were to be at liberty under this term of their contract to order the coal sent to any person to whom they might see fit to have it shipped. To say that the ‘other parties’ mentioned in the written agreement refers to assignees of the plaintiff, to be subsequently designated by the latter, is to attempt to read into the writing something which is not expressed therein. The court therefore concludes that [the contract between defendants and the Regal Coal Mining Company] does not constitute a ‘note or memorandum in'writing’ which brings the contract sued upon within the terms of the section of the Sales Act above set forth.” (3d.) Is section 4 of the Sales Act unconstitutional? íhis also Judge Stern has conclusively answered, when he says: “In regard to the constitutionality of section 4, the plaintiff contends that this section is a special law changing the rules of evidence in judicial proceedings and the methods for the collection of debts, and therefore violates article III, section 7, of the Constitution of Pennsylvania. Assuming for the sake of argument, but not deciding, that the clauses of the Constitution referred to are involved at all, it cannot be held that section 4 of the Sales Act is special legislation within the meaning of the Constitution. The principles governing this subject have been so many times stated by the Supreme Court that no extended discussion would seem to be required. The Constitution does not prevent distinctions and classifications; it merely requires that the basis for classification must be reasonable and proper and founded upon a real and not merely an artificial distinction ; if the distinction is genuine the courts cannot declare the classification void, though they may not consider the basis to be [wise]. The test is not wisdom, but good faith, in the classification; Com. v. Puder, 261 Pa. 129; Laplacca v. Phila. R. T. Co., 265 Pa. 304. In the present case there is manifest propriety in the provision that sale contracts involving only a small sum need not be in writing, whereas larger contracts are enforceable only if evidenced by a note or memorandum in writing. This distinction is based upon well-known customs and usages of trade. To require that the almost infinite number of trifling sales which are transacted every day must be in writing, would be to make almost impossible the carrying on of ordinary business of that kind. On the other hand, there is no reason why in the case of more important contracts of sale the parties should not be compelled to be sufficiently deliberate to reduce their agreements to writing. Once it be admitted that there is a valid reason for fixing an amount above which a note or memorandum in writing must exist, the exact point at which the line should be drawn is for the legislature and not for the courts.” To this it may be added, in answer to appellant’s argument in this court, that the classification which the act makes is not a classification of coal contracts, but a classification of sales of personal property generally, a subject which could hardly be more general and more needing of classification, if this is ever to be permitted. Its contention is in substance, therefore, that contracts of sale cannot be classified for the purpose of legislation, even as between sales of realty and sales of personalty, notwithstanding the fact that this latter distinction has been recognized in legislation for centuries. The judgment of the court below is affirmed.

Opinion by Mr. Justice Allen M. Stearns, This is an appeal by the Commonwealth from the decree of an orphans’ court refusing to reopen a tax proration proceeding under the Act of July 2, 1937, P. L. 2762, 20 PS Supp. 844, amending the Fiduciaries Act, as construed in Jeffery’s Est., 333 Pa. 15. Richard B. Mellon, testator, died December 1, 1933, leaving an estate valued at $11,060,063.75. Prior to his death he had given to his wife, Jennie King Mellon, and to his two children, Richard King Mellon and Sarah Mellon Seaife, in equal thirds, 240,000 shares of the common stock of Aloxite Corporation valued at $75,499,053.11. The Commissioner of Internal Revenue, being of opinion that such gifts of stock were made in contemplation of death, included the value thereof in the federal estate tax assessment. This deficiency assessment, after protest and hearings, was acquiesced in by all parties. The federal estate tax statement was as follows: Total federal estate tax..... $37,567,602.59 Returned tax, paid by Executors on filing of federal estate tax returns ..... $ 1,743,343.89 Net deficiency payable to Federal Government ... 22,500,000.00 80% credit for “any estate, inheritance, legacy or succession taxes actually paid to any State or Territory or the District of Columbia in respect of any property included in the gross estate,” under section 301 (b) of the Federal Revenue Act of 1926, as amended ..... 13,324,258.70 - $37,567,602.59 The record of satisfaction of such tax was as follows: By payments to the Federal Government: By Richard B. Mellon Exec- utors ................. $ 1,750,000.00 By Richard King Mellon. 11,246,671.95 By Sarah Mellon Seaife.. 11,246,671.94 $24,243,343.89 By credit on account of taxes paid by the Richard B. Mellon Executors to the following states in the following respective amounts: Pennsylvania ....... $13,309,847.50 Rhode Island ....... 12,911.20 West Virginia ...... 1,500.00 13,324,258.70 $37,567,602.59 Upon the tax deficiency payable to the Federal Government, there accrued interest of $2,937,959.12, one half of which was paid by Richard King Mellon and the other by Sarah Mellon Scaife. It is to be noted that no part of this federal estate tax, aggregating with interest $40,505,561.71, was paid by Jennie King Mellon, who died November 15,1938. On May 2, 1939, one of the executors of the estate of Richard B. Mellon filed a petition in the orphans’ court of Allegheny County, seeking proration of the federal estate tax under the provisions of the Act of 1937, supra. The prayer was for an adjudication of how much of said tax was the obligation of, and should have been paid by, Richard B. Mellon’s executors, and how much thereof was the obligation of, and should have been paid by, respectively, Richard King Mellon, Sarah Mellon Scaife and the Estate of Jennie King Mellon. Citations were issued to these named parties, answers filed, and testimony taken. An order of proration was entered by the court as follows: “Said tax of $37,567,602.59 was the liability and indebtededness of the following parties in the following respective amounts: Richard B. Mellon Executors. (12.7775%) $ 4,800,200.42 Jennie King Mellon........ (29.0741%%) 10.922.467.39 Richard King Mellon....... (29.0741%%) 10.922.467.39 Sarah Mellon Scaife........ (29.0741%%) 10.922.467.39 Total. (100%) $37,567,602.59 Said interest, amounting to $2,937,959.12, which was due and payable upon said tax to the Federal Government, was due and owing by the following parties in the following respective amounts: Bichard B. Mellon Executors. (5.9916%) 176,030.76 Jennie King Mellon......... (31.3361%%) 920.642.78 Bichard King Mellon....... (31.3361%%) 920.642.79 Sarah Mellon Scaife........ (31.3361%%) 920.642.79 Total (100%) $ 2,937,959.12” The Jennie King Mellon executors were directed, on account of that portion of the federal estate tax which was held to be her liability and indebtedness, to reimburse the Bichard B. Mellon executors $10,274,058.28, and to reimburse Bichard King Mellon and Sarah Mellon Scaife $324,204.55 each. They were also directed, on account of that portion of interest upon the federal estate tax which was held to be due and owing by Jennie King Mellon, to reimburse Bichard King Mellon and Sarah Mellon Scaife, each, $460,321.39. The Bichard B. Mellon executors were directed, on account of that portion of interest which was held to be due and owing by them, to reimburse Bichard King Mellon and Sarah Mellon Scaife $88,015.38 each. Exceptions were filed by the executors of Jennie King Mellon, which were dismissed by the court on November 13, 1939. On March 25, 1941, upon petition of the Begister of Wills, as agent of the Commonwealth for collection of the transfer inheritance tax, a rule was granted on all parties in interest to show cause why the proration proceedings should not be opened, the findings of fact set aside, and the order prorating the federal estate taxes and interest be vacated and the petitioner allowed to intervene and be heard. A similar rule was obtained by the executors of Jennie King Mellon. Preliminary objections and answers were filed by respondents. No further hearings .were had, and apparently none were requested. On November 10,1941, the court below, upon review of tb'e record, in which the Commonwealth actively participated, discharged the rules, and dismissed the petitions. This appeal by the Commonwealth followed. The petition of the Commonwealth was properly dismissed. Its right to intervene in the present proceedings is rested upon an extremely tenuous foundation. It asserts first that it was a necessary party to the proration proceedings by virtue of its interest in the Estate of Jennie King Mellon for inheritance taxes which might have been collected had the estate proved solvent. Its contention that it had a “vested interest” in the estate is based upon a fundamental misconception of the incidence of the transfer inheritance tax. As recently as Haid Estate, 347 Pa. 159, this court has pointed out that the only property of a decedent subject to this tax is that portion of his net clear estate which passes to the distributees under his will or under the intestate laws. The tax is upon the transfer of property. It is not a tax upon the estate itself. The Commonwealth, therefore, having assessed no inheritance tax against the Jennie King Mellon estate, had no such interest as to make it a necessary party to every action brought against the estate. The Act of 1937, establishing the procedure for proration, certainly contains no requirement that the Commonwealth be joined. The objection of the Commonwealth that it had no notice of the proceedings is likewise without merit because it has not shown that its status entitled it to such notice or that, as a possible creditor, it informed the executors of its desire to have notice of any such proceedings. The failure to give notice to the Commonwealth did not constitute a violation of any statute or rule of court. The Commonwealth contends, however, that, regard-' less of its status as a necessary party, it was entitled to intervene in these proceedings by the Act of July 7, 1919, P. L. 731,12 PS Sec. 145, which confers such right upon the State in “all cases at law or in equity” in which it may have “any interest.” We do not accept the contention of the Commonwealth that this statute was designed to permit the Commonwealth to intervene at pleasure in any suit between third parties in which.it claims an interest regardless of how remote, incidental or indirect such interest may be. This construction would authorize intervention by the Commonwealth in any proceeding upon the mere declaration of its officer or agent that it had an interest. We have held that the section has no such effect. See Cameron v. City Bank of York, 284 Pa. 187. Here the Commonwealth bases its claim upon the fact that if the proration decree is permitted to stand, the estate of Jennie King Mellon will be insolvent, and hence the Commonwealth will be deprived of what inheritance tax it might otherwise have received. Such reasoning would justify intervention by the Commonwealth in any suit brought by a creditor against an estate and, if carried to its extreme, might confer the right upon the Commonwealth to intervene in suits between living persons upon the possibility that the estate of one or the other might be diminished, with a consequent putative loss to the Commonwealth in inheritance taxes upon his death. We need not, however, decide the merits of the Commonwealth’s claim of interest, because its petition to intervene is clearly barred by laches. The Act of 1919, supra, contemplates intervention in pending suits; it does not authorize the Commonwealth to intervene at any time for the purpose of destroying judicial determinations long since concluded. While no express limitation is placed upon the time within which intervention by the Commonwealth may be effected, we held in Commonwealth’s Appeal (White Twp. School Dist.), 305 Pa. 263, that the Commonwealth must make itself heard “in due season 'as other parties litigant’ would be required to do.” It is apparent that this principle is a necessary corollary to the policy of our law that there must be a definitive end to litigation, and that decrees and judgments, unappealed from, are entitled to protection in the interest of legal certainty. In the present case it is true that the five-year period of review had not expired, but this, in itself, does not justify the delay of the Commonwealth. The decree which the Commonwealth seeks to open was entered in 1939. Through its officer, the Register of Wills, the Commonwealth was familiar with the affairs not only of the Richard B. Mellon estate but also of the Jennie King Mellon estate. The Commonwealth admits that it had notice of the decree after the filing of the inventory and appraisement in the latter estate on February 23, 1940. Obviously there was an unwarranted delay in the filing of its petition, which under Commonwealth’s Appeal (White Twp. School Dist.), supra, was fatal to its right. Despite the fact that the court below dismissed the Commonwealth’s petition, it is clear from the record that it actually reviewed the proration proceedings and affirmed its decree. The Commonwealth offered no new evidence, and asserted at the bar of this court that it had no intention of so doing. In this circumstance, it has little cause to complain of the refusal of its petition, because the action of the court below, in substance, afforded the Commonwealth the review that it sought. Regardless of the Commonwealth’s right to such a review, it was within the power of the court itself to review its decree. See Huff’s Estate, 300 Pa. 64; Willing’s Estate, 288 Pa. 337; Sloan’s Estate, 254 Pa. 346. As the court below has seen fit to do so, we have also studied the record of the proration proceedings, and have concluded that there was no error in the decree. Section 1 (a) of the Act of 1937, supra, provides for apportionment of any estate tax levied “under the provisions of any estate tax law of the United States” or under the provisions of the Act of May 7,1927, P. L. 859, 72 PS Sec. 2303, imposing an additional estate tax pay able to the Commonwealth to enable it to have the full advantage of the credits allowed by the federal law for taxes paid to the states. Such apportionment is to be made “Whenever it appears upon any accounting or in any appropriate action or proceeding that an executor, administrator, temporary administrator, trustee, or other person acting in a fiduciary capacity” has paid such estate taxes and that such taxes, “except in a case where a testator otherwise directs in his will, shall be equitably prorated among the persons interested in the estate to whom such property is or may be transferred, or to whom any benefit accrues.” The Act provides further that, “the term ‘persons interested in the estate’ shall, with respect to both State and Federal taxes, include all persons who may be entitled to receive, or who have received, any property or interest which is required to be included in the gross estate of a decedent, or any benefit whatsoever with respect to any such property or interest, whether under a will or intestacy, or by reason of any transfer, trust, estate, interest, right, power or relinquishment of power, taxable under any of the aforementioned laws, providing for the levy or assessment of estate taxes.” It is directed that: “The tax shall be paid by the executor, administrator, or other fiduciary as such out of the estate before its distribution. In all cases in which any property required to be included in the gross estate does not come into the possession of the executor, administrator or other fiduciary as such, he shall recover from whomever is in possession, or from the persons interested in the estate, the proportionate amount of such tax payable by the persons interested in the estate with which such persons are chargeable under the provisions of this section, and the orphans’ court may, by order, direct the payment of such amount of tax by such persons to the executor, administrator or other fiduciary.” Subdivision (b) supplies the method whereby the orphans’ court shall determine and carry into effect the proration authorized by subdivision (a). In attacking the decree of the court below, the Commonwealth first contends that since the tax was paid by the personal checks of Richard King Mellon and Sarah Mellon Scaife, such payment was made by them as individuals and not as fiduciaries, and the Act does not apply. This is a highly technical contention and is not substantiated by the record. It appears from the letters sent to the Collector of Internal Revenue by these two persons that the payments were made by them both in their individual and fiduciary capacities. As executors of the estate of Richard B. Mellon, they were responsible for the payment of the estate tax in that capacity (Act of February 26,1926, Ch. 27, Sec. 305 (a), 44 Stat. 74, 26 IT. S. C. A. Sec. 305 (a) 1926); and as transferees of the property upon which the deficiency assessment was based, they had individual liability (Act of 1926, supra, section 315 (b), 26 U. S. C. A. See. 315 (b) 1926, as amended by the Act of June 6, 1932, Ch. 209, Sec. 803 (c), 47 Stat; 280). They were also subject to individual liability under Section 3467 of the Revised Statutes, 31 U. S. C. A. 192, because, as executors, they had joined in the payment of the debts of the decedent prior to the payment of the tax deficiency. The record shows that their payments were intended to discharge the liability of the estate, as well as to save themselves from personal responsibility. They were entitled to use their own funds for both purposes. See Bentley’s Est., 196 Pa. 497. In an equitable proceeding of this sort, the court is concerned with substance rather than form. We have no hesitancy in holding that insofar as they pai'd the estate tax over and above their respective interests in the estate, they did so as fiduciaries within the meaning of the Act of 1937. We are equally unimpressed by the argument of the Commonwealth that the Act of 1937 applies only to those who derive a “benefit” from the portion of the estate taxed, and that Jennie King Mellon received no such benefit from the Aloxite stock because of her prompt transfer of her 80,000 shares to a corporation in which Eichard King Mellon and Sarah Mellon Scaife owned all of the common stock. The Act expressly provides that the apportionment of the tax shall be “among the persons interested in the estate to whom such property is . . . transferred,” and defines “persons interested in the estate” as those “who may be entitled to receive or have received any property or interest which is required to be included in the gross estate of a decedent.” The phrase “or any benefit whatsoever,” is clearly disjunctive. Certainly Jennie King Mellon, by receipt of the 80,000 shares of stock, fell within the above definitions. The Commonwealth’s assertion that her subsequent disposition of the shares was by prior agreement with the testator, and that she was merely a conduit whereby the stock was transferred by the testator to Eichard King Mellon and Sarah Mellon Scaife is unconvincing. There is no competent evidence whatever to substantiate this allegation. On the contrary, it appears that Jennie King Mellon retained during her lifetime the preferred shares of the two corporations to which the Aloxite stock was successively transferred, and that she derived therefrom a considerable income. The court below has found as a fact that she was a transferee of 80,000 shares, and that finding is well supported. What she did with the shares after the transfer was her own concern, and did not in any way affect her liability as transferee for the payment of her proportionate share of the estate taxes upon the value of this property. The Commonwealth insists that the tax deficiency was levied upon Eichard King Mellon and Sarah Mellon Scaife individually by the federal taxing authorities and that this constituted a binding determination that they were the sole transferees of the entire 240,000 shares of Aloxite stock. The letters of the Deputy Commissioner to these two transferees do refer to each as the transferee of 120,000 shares of such stock, despite the fact that Jennie King Mellon was at that time living and enjoying income from the stock as owner of the preferred shares of the corporation by which they were then held. Nevertheless, in the accompanying statements of the gross taxable estate, the Deputy Commissioner expressly refers to “240,000 shares of the common stock of Aloxite Corp. transferred in equal shares to decedent’s wife and two children on May 11, 1932.” Whether the Deputy Commissioner intended by his apparently contradictory remarks to refer to Sarah Mellon Scaife and Richard King Mellon as the ultimate transferees of the stock, or whether this was merely an error, is not clear, nor is it material to our question. Under the Revenue Acts, the value of this stock, which had not come into the hands of the executors of the estate of Richard B. Mellon, was taxable individually to the three transferees who received it from Richard B. Mellon. Their liability was joint and several. See Phillips-Jones Corp. v. Parmley, 302 U. S. 233. In its enforcement, the Commissioner had absolute discretion to proceed against all, or one, or several, of the transferees for the collection of the whole tax. (Cf. Treasury Regulation 70, Article 87.) With his election to proceed only against Richard K. Mellon and Sarah Mellon Scaife the courts of this State have no concern, and they could not, by any decree, compel the Commissioner to proceed otherwise. This, however, does not determine, for the purposes of proration under the Act of 1937, the respective shares of the tax to be borne by the transferees. The method of collection may have involved inequality of payment, but the purpose of the Act of 1937 was to achieve equality of contribution. Consideration of the incidence of the federal estate tax and of the provisions of the Act of 1937 make it clear that the purpose of the General Assembly was to relieve distributees of inequalities which might result from the imposition of that tax. The estate tax, unlike the normal State inheritance tax, is a tax upon the property of the decedent. Unless the decedent has other Avise provided by will, payment of the tax is to be primarily tbe burden of the executors, and the interest of the distributees is to be diminished pro tanto by the payment of the tax prior to distribution. This Avas pointed out in Jeffery’s Est., supra. It is entirely foreign to the purpose of the legislation to suppose that the equality Avhich it desired to create in distributing the tax burden could be thAvarted by an arbitrary act of the federal taxing officer in proceeding for collection against one or more of the several persons jointly and severally liable. The CommonAvealth also contends that the court beIoav, by including interest upon the deficiency assessment of the estate tax in the proration, exceeded its authority under the Act, or gave to the Act an unconstitutional application. The title of the Act refers to the apportionment of “estate taxes” only, and it is argued that interest upon a tax is not, in itself, a tax. Numerous cases are cited illustrating circumstances in Avhich this principle has been applied. The CommonAvealth, however, overlooks the fact that the Bevenue Act of 1926, Sec. 308 (h), 26 U. S. C.A., Sec. 308 (h) 1926, expressly provides that, “Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax.” Since the Act of 1937 deals with the federal estate tax, and so indicates by its title, and since that tax, by Act of Congress, includes “as a part of the tax” interest upon deficiency assessments, it is clear that the Act of 1937 contemplates proration of such interest and that notice to this effect is amply afforded by the title. It may be noted, in passing, that as the proration of this interest would not in any way affect the solvency of the Jennie King Mellon estate, the interest of the Commonwealth in this portion of the decree does not appear. A similar objection is made by the Commonwealth that the court below improperly prorated credits for inheritance taxes paid to the Commonwealth and to other states. These credits amounted to the sum of $13,324,258.70. It is urged that the Act of 1937 contemplates the apportionment only of the net payment of the federal estate tax made by fiduciaries, and therefore that there is no authority for the proration of credits against the gross tax, representing payments by the fiduciaries of normal state inheritance taxes. We believe that this construction of the Act is too narrow and is inconsistent with the legislative intention to effect equality of apportionment. The Act does not state, as the Commonwealth contends, that only the net sum actually paid in cash to the collector of the estate tax is to be apportioned. It provides that the “estate tax” paid by the fiduciary to the Federal Government and the additional Pennsylvania estate tax paid by the fiduciary shall be apportioned. The Federal Government assessed a total estate tax of $37,567,602.59 against the Richard B. Mellon estate. That tax Avas paid by the executors in part by cash and in part by credits. The credits constituted part of such payment within the meaning of the Act of 1937, and Ave so hold. The reasons or policy which motivated the Federal Government in permitting the estate tax to be so discharged in part, need not here concern us. Cf. Knowles’s Est., 295 Pa. 571. The fact that the court below directed payment of the prorated shares of the tax to Richard King Mellon and Sarah Mellon Scaife directly, rather than indirectly, by payment to the executors of the Richard B. Mellon Estate, has not injured appellant in any way, and has not violated the equitable purpose of the Act of 1937. Although we have concluded that the proration decreed by the court below was in accordance with the provisions of the Act of 1937, it does not necessarily folloAV that this apportionment could not have been effected upon equitable principles governing contribution, exoneration and the marshalling of assets. The three transferees of that portion of the estate of Richard B. Mellon which was to be subject to a deficiency assessment were, under the Revenue Acts, jointly and severally liable for the payment of the tax. Phillips-Jones Corp. v. Parmley, supra. Section 314 (b) of the Revenue Act of 1926, 26 U. S. C. A. Sec. 314 (b) 1926, provides: “If the tax or any part thereof is paid by, or collected out of that part of the estate passing to or in the possession of, any person other than the executor in his capacity as such, such person shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate or whose interest is subject to equal or prior liability for the payment of taxes, debts, or other charges against the estate, it being the purpose and intent of this title that so far as is practicable and unless otherwise directed by the will of the decedent, the tax shall be paid out of the estate before its distribution.” It is clearly the intention of the Code that persons required to pay the tax should be restored by the equitable principle of contribution to the position in which they would have been had the tax been initially paid out of the estate prior to distribution. Richard King Mellon and Sarah Mellon Scaife were not volunteers in paying the tax. The joint and several liability of the three transferees had been enforced against them by the Commissioner. As stated in Bispham’s Principles of Equity (10th ed., 1922), Sec. 328: “The equity of Contribution arises when one of several parties who are liable to a common debt or obligation discharges the same for the benefit of all. . . . The application of this equity is seen most frequently in the case of sureties; but it will, of course, be borne in mind, that the rules stated in regard to this particular class of debtors are, in general, true as to all parties who are liable in common to a debt or charge of any kind.” The equitable principle of contribution has long been enforced in this Commonwealth on principles of nat ural justice. See Horbach’s Administrators v. Elder, 18 Pa. 33; Armstrong County v. Clarion County, 66 Pa. 218; Commonwealth v. American Surety Co. of N. Y., 315 Pa. 428. An examination of those cases and the principles expressed indicates clearly the applicability of the doctrine to the circumstances of the present case. We are aware that certain lower court decisions in this Commonwealth have cast doubt upon the right of contribution for estate taxes paid by one of several persons jointly liable. We believe that the reasoning in these cases is unsound; and in Jeffery’s Est., supra, although the subject was expressly left open, we refused to affirm the holding of the court below that the equitable principle of contribution would not apply to the apportionment of such taxes. In the present case we believe that the decree could be sustained either upon the terms of the statute or upon the broad principle of equity here discussed. The order of the court below is affirmed; costs to be paid by appellant.

The opinion of the Court was delivered by Rogers, J. Whether the contract was usurious is a question of fact that was properly referred to the jury under instruction from the court, to which no exception can with justice be taken. Considering, therefore, as we must do after the verdict of the jury, that the original agreement is usurious, it becomes necessary to examine the effect of the agreement of the 9th March 1840. The principal grounds of defence consist of. two distinct items, viz: $2235, the amount alleged to be usurious, and a bond and mortgage of Bullick and Tracy for $2000, which formed part of the consideration of the mortgage on which the suit is brought. The defendant alleges he never received the money due on that mortgage, nor any part of it, although he used due diligence to recover it. To avoid error the points of defence must be kept separate and distinct. As to the first, we think it very clear that the agreement cannot operate as a confirmation of the original contract so as to estop the defendant from availing himself of any defence he may have arising out of the statute against usury. The principle which applies to this part of the case is ruled in Duncan v. M’Cullough, Adm. of Findley, (4 Serg. & Rawle 486). When there has been ¿actual and positive fraud, or the adverse party has acted mala fide, [there can be no such thing as a confirmation; what was once a ¡fraud will be always so. The reason is, that a contract infected I with fraud is not merely voidable but void, and confirmation, without a new consideration, would be nudum pactum. So of usurious ¿contracts, all the authorities concur that no subsequent confirmation will be available. Is, then, the agreement of the 9th April 1840 a simple confirmation of the original contract, or is it a new contract on new terms and conditions and upon a good and sufficient consideration 1 The point is not without difficulty; but I have come to the conclusion that it is nothing more (so far as respects the usurious consideration) than a confirmation of the original contract, with an extension of time for the payment of the money. The suit is on the first contract, no new security having been given or contract made. If a new bond ánd mortgage had been' executed upon a new consideration, it would have presented a different aspect, unless it could have been shown that the transaction was a colourable shift to evade the statute against usury, devised when the money was originally lent and the bonds and mortgages given. There is nothing to prevent parties to an usurious contract from entering into a new agreement on a new consideration, if done under circumstances which negative the idea of imposition or undue advantage. If, therefore, on another trial, the jury should find that the contract is tainted with usury, nothing has been subsequently done which can avail the defendant. And now for the second point. The Bullick and Tracy mortgage was part of the original consideration, it being one of the securities assigned by Chamberlain to M’Clurg. The defence (so far as respects this item) is simply a failure of consideration pro tanto. It is neither fraudulent nor usurious, and consequently it may be the subject of confirmation or of compromise, as cannot be doubted. From the evidence it would seem that Chamberlain, while he admitted that M’Clurg had used diligence in attempting to recover the amount due on the mortgage, denied he was to suffer the loss, inasmuch as he had not guaranteed the recovery of the money. On the latter point it would appear that the parties were at issue. In a letter, dated the 27th January 1840, from Chamberlain to M’Clurg, which appears to have been in answer to a letter from the latter to the former, he uses this language: “ I have made inquiry about the Bullick and Tracy affair, and find that everything has been done that is possible in the business. As I did not guarantee the claim, I consider that I have no further interest in it.” Not quite three months afterwards the last agreement is made, which purports to be as well for the settlement of all variances as for the consideration afterwards mentioned, viz: the extending of the time for the payment of the money lent by Chamberlain to M’Clurg. In the agreement, Alexander and James M’Clurg expressly release and acquit Chamberlain from all claims, demands, liabilities and offsets, for any cause whatsoever, heretofore existing. If, therefore, the Tracy mortgage was one of the differences in the contemplation of the parties, there is an end of this part of the defence, for the settlement of existing controversies is a good consideration of a new contract; and if the jury believe this to be the case, the defendant will be estopped from setting up a defence which otherwise might have availed him. There is nothing in the bills of exception, for a party is not concluded or estopped by an usurious deed or security from showing external circumstances which prove the contract to be corrupt. A contrary doctrine would be a virtual repeal of the statute against usury. A party is permitted to prove circumstances and conversations, before and after a written agreement, for the purpose of showing the transaction was usurious. And on the contrary, if the agreement appears prima facie to be usurious, the party is not concluded from showing that the true agreement was that only legal interest should be paid. Judgment reversed, and venire de novo awarded.

TAMILIA, Judge: Appellants contend that the lower court erred in sustaining appellees’ preliminary objections in the nature of a demurrer to counts IV and V of appellants’ amended complaint and in dismissing the amended complaint as against appellees. We disagree and, accordingly, affirm the Order of the court below. On September 10, 1981, appellants Bridget Casey and her daughter, Lisa, filed a complaint against defendant James Geiger alleging false imprisonment, assault and battery, and intentional infliction of emotional distress, and against appellees, Borough of Camp Hill and Andrew Janssen, Borough Manager, alleging negligence. On September 23, appellees filed preliminary objections in the nature of a demurrer to counts IV and V, the negligence counts, of the complaint. Appellees claimed that appellants failed to state a cause of action against them in accordance with the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. (formerly 53 P.S. § 5311.101 et seq.) [hereinafter cited as the “Act”] The court below sustained the objections on November 2 and filed in support thereof a Memorandum Opinion on November 4, basing its decision on Chapman v. City of Philadelphia, 290 Pa.Super 281, 434 A.2d 753 (1981). The court, however, granted appellants’ leave to file an amended complaint, which they did on April 12, 1982. On April 16, appellees filed the same objections to the amended counts IV and V. The lower court sustained the objections, dismissed the amended complaint as against appellees, and filed an opinion in support thereof on June 18, again relying primarily upon Chapman. This appeal followed. In considering preliminary objections in the nature of a demurrer, the following standard is applied: It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom____ Conclu- sions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained____ Abarbanel v. Weber, 340 Pa.Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted). In their amended complaint, the appellants allege the following: (1) On June 19, 1979, appellant Lisa Casey, then ten years old, participated in swimming lessons sponsored by appellee Borough at Seibert Memorial Park, a recreational park facility owned and operated by the Borough for use solely by the residents of the Borough; (2) appellant Bridget Casey, Lisa’s mother, paid an annual fee to appellee Borough for which consideration her children were entitled to use of the recreational facilities in the Park; (3) at about 10:40 on the morning of June 19, 1979, appellant, Lisa Casey, after completing her swimming lesson, proceeded to walk through the Park; (4) at about 10:45 a.m. defendant Geiger engaged appellant Lisa Casey in conversation, then forcibly picked up a ad carried her into the bushes and overgrown underbrush in the Park whereupon he proceeded to rape and assault her; (5) at the time of the above-described incidents, appellant Lisa Casey was an invitee of appellee Borough; (6) appellees owed appellant Lisa Casey, as an invitee, a duty of reasonable care for her protection and even a greater duty of care than that owed an adult invitee because appellant was a minor; (7) appellees failed to exercise reasonable care and were negligent (a) in failing to provide adequate protection in the form of police or security personnel to protect her as an invitee against the criminal acts of third persons, (b) by permitting underbrush in the Park to become overgrown thus facilitating such criminal acts, (c) by allowing a nonresident, defendant Geiger, to gain entrance into the Park and remain there without being questioned as to his purpose for being there, and (d) by reason of the fact that appellees knew or should have known that the type of criminal act committed against appellant was likely, as a rape of a young girl had occurred in the Park only months before the attack on appellant; and (8) by permitting her daughter to attend the swimming lessons, appellant justifiably relied upon appellees to reasonably provide for her daughter’s safety. Accepting the above facts as true, we find that appellants have failed to state a claim upon which relief may be granted. We begin our analysis by noting that 42 Pa.C.S.A. § 8541 provides: § 8541. Governmental immunity generally Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. The Political Subdivision Tort Claims Act was a legislative response to the proliferation of liability claims against governmental units following Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), which abrogated the common law doctrine of governmental immunity. See generally Comment, The Political Subdivision Tort Claims Act: Pennsylvania’s Response to the Problems of Municipal Tort Liability, 84 Dick L.Rev. 717 (1980). While the Act generally provides for immunity, 42 Pa.C.S.A. § 8542 sets forth several conditions which, if fulfilled, will impose liability on a local agency. Specifically, section 8542 provides: § 8542. Exceptions to governmental immunity (a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b): (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. (b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (3) Real property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems: (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way; (iii) streets; or (iv) sidewalks. In construing the above section, one must keep in mind that it is an exception to the general rule of governmental immunity that is stated in section 8541. Therefore, a proper application of the rules of statutory construction dictates a strict and narrow interpretation of the eight categories of liability enumerated in section 8542(b). 1 Pa.C.S.A. § 1924 (Purdon Supp.1984-85). See Borenstein v. City of Philadelphia, 595 F.Supp. 853 (Ed.Pa.1984) (waivers of immunity are to be narrowly construed). Moreover, a narrow reading of the eight categories of liability is also mandated upon consideration of the legislative intent to insúltate political subdivisions from tort liability, as expressed in the preamble of the Act. 1 Pa.C.S.A. § 1921 (Purdon Supp.1984-85). Appellants contend that section 8542(b)(3) strips from appellees the cloak of immunity afforded them under section 8541 since the acts of appellees fall within “[t]he care, custody, or control of real property” exception. We disagree and refer to the instructive case of Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Coramw. 604, 464 A.2d 684 (1983), wherein the distinguished Commonwealth Court Judge Joseph P. Doyle stated: We have held that Section 8542(b)(3) does not waive immunity as to any unfortunate incident solely because it occurs on government-owned premises. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981). We believe the Section must be read as a narrow exception to a general legislative grant of immunity and we construe it to impose liability only for negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Violent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied. Id. at 606, 464 A.2d at 686 (footnotes omitted). Further expounding on this rationale, the Vann Court noted: We point out in addition that while it is the clear intent of Section 8542 of the Judicial Code to waive governmental immunity and impose liability for negligence in the control and maintenance of public property, we do not read the statute to impose a standard of liability in cases involving this exception to immunity greater than that to which private landowners are held. While a school district may be held liable for negligence in maintenance and control of property when injury results to a public invitee, see Bersani v. School District of Philadelphia, 310 Pa. Superior Ct. 1, 456 A.2d 151 (1983), the School District here owed no duty to Javelle Vann or to the public at large to prevent the use of its property for criminal attacks such as occurred in this case. Surely, had the attack on Javelle Vann occurred on private property, the private landowner would not be held liable for failure to secure his property from such use, or for failure to illuminate the unlighted areas on his property. The School District as landowner, therefore, cannot be held liable here. Id. at 608 n. 5, 464 A.2d at 686 n. 5 (emphasis added). The above language of the Vann decision has been strengthened by the recent case of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). In Feld, our Supreme Court held that a private landlord is not liable to a tenant for the criminal acts of unknown third persons absent a pre-existing duty, such as where the landlord either gratuitously or for compensation assumes a duty, and then negligently performs it. In reaching this conclusion, the Feld Court stated: The threshold question is whether a landlord has any duty to protect acts of third persons, and if so, under what circumstances. Well settled law holds landlords to a duty to protect tenants from injury arising out of their negligent failure to maintain their premises in a safe condition. See Smith v. M.P. W. Realty Co. Inc., 423 Pa. 536, 225 A.2d 227 (1967). Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771 (1958). That rule of law is addressed to their failure of reasonable care, a failure of care caused by their own negligence, a condition, the cause of which was either known or knowable by reasonable precaution. The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of one’s personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances. The criminal can be expected anywhere, any time, and has been a risk of life for a long time. He can be expected in the village, monastery and the castle keep. Id., 506 Pa. at 390-91, 485 A.2d at 745-46 (emphasis added). Justice Zappala’s Concurring Opinion in Feld v. Merriam adds: As noted in the Opinion of the Court, the weakness of Appellees’ argument is demonstrated by their failure to recognize a crucial distinction between the risks of injury from a condition of the property and from criminal acts of a third person. In failing to maintain the condition of the common areas of the leased premises, the landlord’s conduct, has created the risk of injury to a tenant. It is the responsibility of the landlord to abate the risk which his conduct has created. Liability may then be imposed upon a landlord where injury results because of his conduct or failure to remove the risk of harm created by his conduct. The risk of injury from criminal acts arises not from the conduct of the landlord, but from the conduct of a third person. Id., 506 Pa. at 402, 485 A.2d at 751 (Zappala, J., Concurring) (footnote ommitted). In Cooper v. City of Pittsburgh, 390 Pa. 534, 136 A.2d 463 (1957), our Supreme Court, in reversing a judgment against the city, noted that while a city must exercise reasonable care in maintaining its parks, playgrounds, etc., it is not an insurer of the safety of children playing on its public playgrounds. The Cooper Court stated that a municipality need only “supervise children to the same degree that a reasonably prudent parent would do under the circumstances — in this case supervising children over a 25 acre playground.” Id., 390 Pa. at 538, 136 A.2d at 464-65. We find the following rationale of Cooper to be particularly antithetical to the appellants’ claim: The effect of plaintiff’s contention would be to require the city to have sufficient supervisors (a) to supervise sixty minutes of every hour of every day the use by children of swings, slides, sand boxes and other amusement facilities common to playgrounds, and (b) to organize and supervise hard and soft ball games and other sports, and (c) to prevent fighting and rowdyism, and (d) to carefully watch and safeguard all the children in the entire playground virtually every minute he, she or they are there. Such a standard advocated by this plaintiff, cannot be adopted because it would impose so high and so unreasonable a degree of care as to make the city, in practical effect, an insurer of the safety of every child who enters the playground. Id., 390 Pa. at 539, 136 A.2d at 465. See Close v. Voorhees, 67 Pa.Commw. 205, 446 A.2d 728 (1982) (alleged negligence of school district for failing to prevent stabbing death of student by fellow student did not relate to care, custody and control of real property); Robson v. Penn Hills School District, 63 Pa.Commw. 250, 437 A.2d 1273 (1981) (“it would be a total distortion of the language of section [8242](b)(3) to allow the supervision, or lack of supervision, of school children to fall within the scope of care, custody and control of real property”); Wimbish v. School District of Penn Hills, 50 Pa.Commw. 620, 430 A.2d 710 (1981) (same); Munoz v. School District of Penn Hills, 23 Pa.D. & C.3d 473 (1982) (same). See also Styer v. City of Reading, 360 Pa. 212, 61 A.2d 382 (1948) (Patterson, J., dissenting). Applying the above case law to the instant facts, we conclude that appellants’ claim is barred under 42 Pa.C.S.A. § 8541 since none of the exceptions to governmental immunity apply. In addition, even if the activity at issue fell within the care, custody and control of real property exception, 42 Pa.C.S.A. § 8542(b)(3), appellants have failed to satisfy the preliminary hurdle of section 8542(a)(1) which requires them to establish that their cause of action against the municipality must meet the same standards as would be the case if a private party were being sued. Vann, supra. That being so, we note the basic elements of a cause of action founded upon negligence are: 1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on his part to conform to the standard required. 3. A reasonably close causal connection between the conduct and the resulting injury____ 4. Actual loss or damage resulting to the interests of another. Prosser, Law of Torts, § 30 at 143 (4th ed.1971). Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980). “[D]uty is a question of whether a defendant is under any obligation for the benefit of the particular plaintiffs, and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of apparent risk.” Prosser, Law of Torts, § 53 at 970 (4th ed.1971). Our inquiry thus becomes whether the appellees had a duty to protect Lisa R. Casey from the intentional criminal acts of a third party. While a municipality is under a duty to exercise reasonable care under all the circumstances, we reiterate that it is not an insurer of the safety of children at public parks. Cooper, supra. See also Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966). For instance, had Lisa R. Casey been injured while swimming at a public pool because the Borough provided no lifeguard at the pool, the Borough would be liable because it had a duty to exercise reasonable care. DeSimone v. Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955). Under the present facts, however, appellants’ claim falls short because no such duty exists. Like the lower court, we find the case of Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753 (1981) to be controlling here. In Chapman, this Court upheld the trial court’s dismissal of a wife’s lawsuit against the city alleging a negligent breach of duty to protect citizens after her husband died from injuries sustained during an attack and robbery by three men on the platform of the city railroad station. The Chapman Court held that: The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa.D. & C.3d 319 (1979); 46 A.L.R.3d 1084. A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra; 46 A.L.R.3d 1084. Id., 290 Pa.Superior Ct. at 283, 434 A.2d at 754. See Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1983) (city not liable for failing to protect minor injured in racially troubled neighborhood; no special relationship existed); Morris v. Musser, 84 Pa. Commw. 170, 478 A.2d 937 (1984) (plaintiffs’ complaint alleging inadequate police protection failed to set forth facts necessary to establish a special relationship with the police). The Chapman Court went on to state: In her memorandum of law filed with her answer to the city’s preliminary objections, plaintiff indicated that her action against the City of Philadelphia was predicated on the fact that the city was aware that the Wayne Junction Railroad Station was a particularly dangerous area but that it did nothing about it. It is clear that such proof would not be sufficient to state a cause of action because it does not establish that a special relationship existed between the city and the plaintiff’s decedent. In their appellate brief, appellants urge us to find that a special relationship exists between the city and any individual who is injured in a particularly dangerous area. We decline to do so. Appellants urge this court to proclaim a sweeping duty of protection in the law of tort, far beyond anything any court or indeed our own State legislatures has been willing to recognize. Id. 290 Pa.Super. at 285, 434 A.2d at 755. We find the above language persuasive in its application to the facts before us. Appellants rely on several cases where municipalities were found liable for injuries to children in public parks. Our careful review of these cases discloses that none of them dealt with injuries caused by the criminal acts of third persons. See Cooper v. Pittsburgh, supra, DeSimone v. Philadelphia, supra; Styer v. City of Reading, supra; Hill v. Allentown Housing Authority, 373 Pa. 92, 95 A.2d 519 (1953). Courts have recognized that where there is a special relationship between the victim and the police, there may follow some duty to provide police protection. See Miller v. United States, 530 F.Supp. 611 (E.D.Pa.1982) (police agreed to protect an informant). A leading case on the special relationship is DeLong v. Erie County, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983), in which the New York Court of Appeals held that the actions of a city and county in holding out a 911 telephone number to be called by someone in need of emergency assistance constitutes a duty. Emphasizing the plaintiffs reliance on the actions of the city and county in holding out the number as well as the plaintiffs further reliance on the assurance that help was on its way, the DeLong Court found that the police created a special relationship with particular members of the public by establishing the 911 emergency number. Once this relationship was created between the caller and the police, a special duty arose which made the government accountable for negligence in the performance of that duty. DeLong v. Erie County, supra. See Note, 22 Duq.L.Rev. 299 (1983). See also Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958) (city deemed to have undertaken a special duty to protect a police informant whose life had been threatened); Yearwood v. Town of Brighton, 101 A.D.2d 498, 475 N.Y.S.2d 958 (1984) (municipality cannot be held liable for negligence in the investigation of a domestic quarrel unless a special relationship exists between the municipality and the injured party); Ammirati v. New York City Transit Authority, 117 Misc.2d 213, 457 N.Y.S.2d 738 (Sup.Ct. Kings Co.1983) (claim against Transit Authority alleging a failure to prevent or protect a passenger from injury by a thrown rock was dismissed; no special duty existed). Applying the rationale of the above cases to the present matter, it becomes unequivocabiy clear that no special relationship existed between Lisa R. Casey and the Borough of Camp Hill. In the instant case, the Borough should not be held to a higher standard of care since it did not undertake any obligation to provide a greater degree of protection. Appellants nevertheless contend that because a prior rape had occurred some months before the instant attack, the criminal act was not a superseding cause of appellees’ negligence, but rather its proximate result, and they cite the Restatement (Second) of Torts § 448 in support there of. However, we find appellants’ reliance on section 448 to be misplaced since that section is only relevant to the question of causation in a negligence action and does not determine whether appellees owed a duty of care to the appellant, Lisa R. Casey. Finally, we wish to point out that our decision, like this Court’s decision in Chapman, is supported by sound policy considerations. If the standard of supervision and care adopted by the dissent were implemented, it is questionable how long any municipality could maintain its parks, playgrounds and swimming pools. Due to the cost of increased insurance premiums and added police protection, municipalities will lack the necessary funds to provide recreational services. The end result is that the welfare of the public at large will suffer. We, therefore, decline to stretch the concept of duty beyond its limits to reach such an unreasonable and illogical result. While we sympathize with the appellant, Lisa R. Casey, who no doubt was subjected to a horrible experience, we must refrain from judicial innovation which would allocate the limited resources of municipalities in a manner contrary to the public interest. Accordingly, the Order sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ amended complaint is affirmed. Order affirmed. HOFFMAN, J., files a dissenting opinion. . Although the docket sheet indicates that the complaint was filed on August 10, this is error because the complaint is stamped September 10. . Act of November 26, 1978, P.L. 1399, as amended, 53 P.S. §§ 5311.101-.803, repealed by the Act of October 5, 1980, P.L. 693, now codified in sections 8541-64 of the Judicial Code, 42 Pa.C.S.A. §§ 8541-64. “Because the incident which gave rise to the cause of action herein occurred prior to its repeal, the Political Subdivision Tort Claims Act is controlling for the purposes of this case.” Close v. Voorhees, 67 Pa.Commw. 205, 208 n. 5, 446 A.2d 728, 730 n. 5 (1982). . Local agencies are government units, such as appellee Borough of Camp Hill, other than the Commonwealth government. See 42 Pa.C. S.A. § 8501. . Liability of appellee Janssen is governed by 42 Pa.C.S.A. § 8545: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. Further, employees also have the benefit of the defenses enumerated in § 8546. . The eight acts which may impose liability on the local agency are: (1) motor vehicle liability; (2) care, custody or control of personal property; (3) care, custody or control of real property; (4) a dangerous condition of trees, traffic controls and street lighting; (5) a dangerous condition of utility service facilities; (6) a dangerous condition of streets; (7) a dangerous condition of sidewalks; and (8) care, custody or control of animals. 42 Pa.C.S.A. § 8542(b). . The gravamen of the appellant’s complaint is an attack on the governmental discretion to allocate police and other security resources rather than the articulation of a specific duty owed to the injured party. This type of claim seems to be filed by victims of crime with increasing frequency today. As there is no indication that the courts of this Commonwealth are considering adopting a broader concept of duty in this area, most of this litigation is wasteful and counterproductive. . Appellants argue that Lisa R. Casey was an invitee on public property and therefore the Borough owed her a special duty. However, in Chapman, the plaintiff was also an invitee at the public train station; nevertheless, this Court found no special duty on the part of the municipality. . Other jurisdictions have refused to find liability under similar circumstances. See, e.g., Prickett v. Hillsboro, 323 IlI.App. 235, 55 N.E.2d 306 (1944) (no liability on behalf of municipality for death of young boy shot by a third party while swimming in a lake on municipal property despite fact that police knew of dangerous propensities of third party); Trujillo v. City of Albuquerque, 93 N.M. 564, 603 P.2d 303 (1979) (municipality not liable for failure to provide police protection in shotgun killing of decedent in public park where there was no direct relationship or contact between victim and police such as to create a special duty). See generally, Annot., 46 A.L.R.3d 1084 (1972). . Appellees dispute appellants’ characterization of the previous rape as occurring "only months before.” (Appellants’ Amended Complaint at 11). Appellees' aver that the “alleged assault was reported June 19, 1976.” (Appellees’ Answer to Appellants’ Interrogatories, Interrogatory 15). As we have noted, however, in ruling upon a demurrer, we must accept as true appellants’ allegations of fact. . The Restatement (Second) of Torts § 448 provides: The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. . There is no issue of Commonwealth Court jurisdiction in this case, as the law applicable is that under 42 Pa.C.S.A. § 762(a)(7), "Immunity waiver matters. — Matters in which immunity has been waived pursuant to Subchapter C of Chapter 85 (relating to actions against local parties)”, which was amended 1982, Dec. 20, P.L.1409, No. 326 art. II, § 201, effective in 60 days which amendment, in (a)(7) substituted "conducted” for "in which immunity has been waived.” The incident here occurred before the effective date of the amendment, which is not retroactive, and since immunity was not waived, appeal to Commonwealth Court did not lie.

OPINION SAYLOR, Justice. These are consolidated direct appeals from death sentences imposed after a jury found co-defendants, Carolyn King and Bradley Martin, guilty of first-degree murder and related offenses. We affirm. On September 15, 1993, Martin, who was serving a sentence at the Lebanon County Correctional Facility as the result of a parole violation, obtained a two-hour visitation pass and left the prison. He met King, with whom he was romantically involved, and failed to return to prison as required. Instead, the two traveled to Palmyra, Pennsylvania, where they called upon Guy Goodman, with whom Martin was acquainted. Mr. Goodman, who was seventy-four years old, had written, telephoned and visited Martin in prison, identifying himself as Martin’s friend. At some point, Martin and King had decided to obtain money from Mr. Goodman, and apparently they were prepared to use force. Soon after their arrival at Goodman’s home, Martin hit Goodman over the head with a vase from the hallway, and the pair then bound Goodman’s wrists, ankles and neck in such a manner that he could not extricate himself. They then wrapped a bathrobe around Goodman’s head, placed a plastic bag over it, sealed the bag with duct tape, and wrapped a bedspread over the bag. Finally, they carried Goodman into the basement, tying him more securely and leaving him to suffocate. Martin and King then stole Mr. Goodman’s checkbook and credit card and drove away in his car. After several brief visits with friends in Pennsylvania, the couple fled across the country in Goodman’s car, using his checks and credit card to pay their expenses. They were ultimately apprehended in Arizona, at which time King was advised of her rights and gave a statement to federal law enforcement officials, inculpating herself and Martin in Goodman’s murder. King later reiterated her inculpatory statement to Lebanon County detectives who were investigating Goodman’s death. While in custody in Arizona, Martin was interrogated by Lebanon County detectives, who gave him Miranda warnings. After signing a form stating that he waived his rights, Martin inculpated himself in the robbery and murder. Subsequently, Martin made an additional statement to a corrections officer at the Lebanon County Prison, admitting that he had killed Goodman. Martin and King were charged with Goodman’s murder and proceeded to a joint trial. Prior to trial, both defendants filed motions for severance, which the trial court denied. Additionally, Martin filed a motion to suppress his incriminating statement to the Lebanon County detectives, asserting that he had been under the influence of drugs at the time he gave the statement. The trial court denied the motion. Martin chose not to testify at the jury trial that followed, but King testified on her own behalf, and her tape-recorded inculpatory statement was played for the jury. At the conclusion of the guilt phase, the jury found both defendants guilty of first-degree murder, aggravated assault, robbery, theft by unlawful taking, flight to avoid apprehension, escape and conspiracy. Trial proceeded to the penalty phase, during which the Commonwealth presented two aggravating circumstances with respect to both defendants: perpetration of the homicide during the commission of a felony, 42 Pa.C.S. §9711(d)(6), and commission of the offense by means of torture, 42 Pa.C.S. §9711(d)(8). In support of the aggravating circumstance at subsection (d)(6), the prosecutor reminded the jury that it had convicted both defendants of robbery, which is a felony, and that the killing had occurred during the commission of the robbery. In support of the aggravating circumstance at sub section (d)(8), the prosecutor introduced the videotaped testimony of Dr. Isadore Mihalikis, a forensic pathologist. The Commonwealth also presented evidence in support of the aggravating circumstance of a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. §9711(d)(9), with respect to Martin. In support of this aggravating circumstance, the Commonwealth introduced evidence of Martin’s five prior burglary and criminal trespass convictions. Martin and King both presented evidence in support of the following mitigating circumstances: their ages at the time of the crime, 42 Pa.C.S. §9711(e)(4), and other evidence of mitigation concerning their character and records and the circumstances of the offense, 42 Pa.C.S. §9711(e)(8). King presented additional evidence in support of the mitigating circumstance that her participation in the homicidal act was relatively minor, 42 Pa.C.S. §9711(e)(7). Both Appellants sought to present evidence and argument concerning the character of a life sentence in Pennsylvania; however, the trial court sustained the Commonwealth’s objection to such evidence and argument and declined to provide any instruction. At the conclusion of the penalty phase, the jury found that all of the aggravating circumstances presented with respect to each defendant had been established, and found no mitigating circumstances for either defendant. Accordingly, death sentences were imposed. These consolidated appeals followed. SUFFICIENCY OF THE EVIDENCE Although Martin and King (“Appellants”) do not challenge the sufficiency of the evidence, this Court is required to conduct an independent review of the sufficiency of the evidence supporting a first-degree murder conviction in all capital cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In conducting this review, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner and determine whether the jury could have found every element of the crime to have been proven beyond a reasonable doubt. Commonwealth v. Michael, 544 Pa. 105, 110, 674 A.2d 1044, 1047 (1996). To prove first-degree murder, the Commonwealth must demonstrate that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the defendant committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. 18 Pa.C.S. §2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Circumstantial evidence can itself be sufficient to prove any element or all of the elements of criminal homicide. Commonwealth v. Cox, 546 Pa. 515, 528-29, 686 A.2d 1279, 1285 (1996), cert. denied, — U.S. -, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). Here, the evidence adduced at trial established that the cause of Goodman’s death was asphyxiation, which resulted from his head being encased in layers of wrappings while he was bound and unable to extricate himself. A neighbor who discovered the body testified that there were signs that a struggle had occurred in the victim’s home. Further examination of the home by the .police revealed that the upstairs had been ransacked, and Martin’s fingerprints were found on currency that had been left in the victim’s bedroom. Both King’s and Martin’s fingerprints were found on pieces of duct and masking tape that were left in the home, as well as on a glass and a bowl of peanuts in the kitchen. Handwriting on checks that were drawn- on the victim’s bank account matched that of King, and a number of store clerks identified King and Martin as the individuals who had presented the victim’s credit card or checks to them as payment. When King and Martin were apprehended, Martin was in possession of Mr. Goodman’s credit card, and blank checks found in Goodman’s abandoned vehicle bore the fingerprints of both defendants. Additionally, King confessed to both federal agents and Lebanon County detectives, implicating herself and Martin in the murder. Martin also confessed to Lebanon County detectives, as well as to a Lebanon County corrections officer, admitting that he had hit Goodman over the head with a vase and that he had tied up Goodman “real good.” Thus, the evidence in this case is clearly sufficient to support the convictions of first-degree murder, and we now turn to the issues raised by Martin and King in their appeals. GUILT PHASE Appellants’ first argument arising from the guilt phase of trial is their claim that the trial court erred in denying their motions for severance. Appellants emphasize that their defenses were mutually antagonistic, in that they each contended that the other manipulated him or her into participating in the crimes. Thus, Appellants argue, the consolidation of their trials was prejudicial, because the jury’s acceptance of one defendant’s defense would necessarily have required it to reject the other’s defense and convict that defendant. Pennsylvania Rule of Criminal Procedure 1127 provides that defendants charged in separate indictments may be tried together if they are alleged to have participated in the same acts constituting the offenses charged. Pa.R.Crim.P. 1127(A)(2). However, Rule 1128 provides that separate trials may be ordered if it appears that any party may be prejudiced by a joint trial. Pa.R.Crim.P. 1128. The decision whether to sever the trials of co-defendants resides within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion. Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). In this case, both defendants attempted to exculpate themselves by inculpating the other defendant. Such finger pointing alone, however, is insufficient to warrant separate trials. See Commonwealth v. Lambert, 529 Pa. 320, 332, 603 A.2d 568, 573 (1992). Furthermore, this Court has stated that “[t]he mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials. In fact, it has been asserted that the fact that defendants have conflicting versions of what took place, or the extents to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together.” Commonwealth v. Chester, 526 Pa. 578, 590, 587 A.2d 1367, 1373, cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991) (citations omitted). Additionally, where the defendants have been charged with conspiracy, a joint trial, rather than separate trials, is preferred. See id. at 589-90, 587 A.2d at 1372-73. Here, the following factors militated in favor of a joint trial: Appellants were charged with conspiracy; the majority of the crimes charged were the same; the circumstances giving rise to the crimes were identical with respect to both defendants; and the witnesses necessary to prove the crimes were the same. The fact that Appellants argued conflicting versions concerning the extent of their participation in the crimes is not controlling, and we perceive no abuse of discretion by the trial court in refusing to sever. Appellants also contend that the indictment charging Martin with escape should not have been consolidated with the indictment charging him with homicide. Martin argues that placement of the escape charge before the jury inappropriately disclosed the fact that he had been imprisoned for a previous offense and had violated the terms of visitation-release. Therefore, he claims that the jury was presented with evidence of prior offenses, which was inadmissible with respect to the homicide charge. King argues that the evidence of prior offenses implicit in Martin’s escape indictment was prejudicial to her, because it portrayed her as being guilty by association with an individual who was predisposed to criminal behavior. Like the decision to sever, the determination of whether to consolidate separate indictments for trial is a matter addressed to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed absent a manifest abuse of such discretion or prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981). Pennsylvania Rule of Criminal Procedure 1127 provides that offenses charged in separate indictments may be consolidated for trial if: 1) the evidence of each offense would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or 2) the offenses charged are based on the same act or transaction. Pa.R.Crim.P. 1127(A)(1)(a), (b). Although evidence of prior crimes is inadmissible for the sole purpose of demonstrating a defendant’s bad character or propensity for criminal behavior, Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17, cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987), such evidence may be admitted under special circumstances where it is relevant for some other, legitimate purpose. Commonwealth v. Claypool, 508 Pa. 198, 204, 495 A.2d 176, 178 (1985). One special circumstance is present where the prior crimes evidence is part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988) (citations omitted). Here, Martin’s escape was clearly part of the natural chain of events leading up to Mr. Goodman’s murder, and the charges of escape and homicide therefore stemmed from essentially a single criminal episode. Moreover, having reviewed the record, we conclude that the evidence in support of each offense was capable of separation by the jury. The trial court specifically instructed the jury that it was required to decide separately each issue before it: “Simply because I decided to consolidate these cases does not allow you to consider them as one for purposes of your deliberations.” Thus, we discern no abuse of discretion by the trial court or prejudice to either appellant as a result of the consolidation of the indictments. Appellants also contend that evidence of their possession of marijuana and of Martin’s prior violations of his work-release privileges constituted evidence of uncharged prior offenses, which should not have been admitted at trial. Contrary to Appellants’ contentions, the evidence of Martin’s previous visits with Mr. Goodman while on a work-release pass was presented for the legitimate purpose of establishing that there was a relationship between the two men prior to Goodman’s murder. . With respect to certain witnesses’ references to Appellants’ possession of marijuana, the majority of these comments were inadvertently elicited when the prosecutor asked one of the witnesses to describe his conversations with Appellants after the murder. The other references were elicited on cross-examination by defense counsel either in an attempt to discredit another witness, or merely as part of the sequence of events immediately following the murder. At no time did either appellant object to the testimony, nor did the Commonwealth seize upon the references to Appellants’ possession of drugs, which occurred infrequently and were innocuous in the context of the overall trial. Accordingly, no relief is due either appellant on this claim. Appellants next challenge the admission of a photograph of the victim’s body and evidence concerning the personal character of the victim. It is well settled that a decision concerning the admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of such discretion. Commonwealth v. Cohen, 529 Pa. 552, 563, 605 A.2d 1212, 1218 (1992). The challenged photograph was among several that the Commonwealth offered into evidence at trial as probative of the manner in which the homicide occurred. The trial court overruled defense counsels’ objection to the admission of these photographs, ruling that they were not inflammatory. Appellants now argue that Exhibit 42, a black-and-white photograph depicting the manner in which the victim was tied, was indeed inflammatory because it also depicted certain signs of the body’s decomposition, specifically, the blackening of the victim’s hands and the secretion of bodily fluids. Appellants also point to the fact that other photographs that were admitted rendered substantially the same image, without the graphic depiction of decomposition. Therefore, Appellants claim that Exhibit 42 not only was inflammatory, but also was cumulative evidence that need not have been admitted. Photographs of a murder victim are not per se inadmissible. See Chester, 526 Pa. at 591, 587 A.2d at 1373 (citations omitted). “To permit the disturbing nature of the images of the victim to rule the question of admissibility would result in the exclusion of all photographs of the homicide victim, and would defeat one of the essential functions of a criminal trial, inquiry into the intent of the actor. There is no need to so overextend an attempt to sanitize the evidence of the condition of the body as to deprive the Commonwealth of opportunities of proof in support of the onerous burden of proof beyond a reasonable doubt.” Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982). The determinative inquiry is whether the evidentiary value of the photographs outweighs the possibility of inflaming the minds and passions of the jurors. See Commonwealth v. Jacobs, 536 Pa. 402, 406-07, 639 A.2d 786, 788 (1994). Here, the challenged photograph, although clearly showing the initial stages of decomposition, was relevant in that it depicted the manner in which the victim was tied, which was essential to proving the intent element of first-degree murder. As the trial court noted in ruling on Appellants’ objection, the jury was informed by the district attorney that the bodily fluids and blackening of the victim’s hands were attributable to the decomposition process. Accordingly, we perceive no abuse of discretion by the trial court in admitting Exhibit 42 into evidence. See generally Commonwealth v. Hudson, 489 Pa. 620, 631, 414 A.2d 1381, 1386-87 (1980)(finding that the trial court did not abuse its discretion in admitting photographic evidence depicting the manner in which a homicide victim was bound, which evidence “aided the jury by showing the area in which the crimes were committed and the position of the corpse in that area”). Appellants further contend that certain evidence touching upon the personal character of the victim was inflammatory and should not have been admitted. The Commonwealth introduced, through the testimony of Detective Richard Radwanski, a letter that Mr. Goodman had written to Martin. In the letter, Goodman mentioned his regular attendance of church services, his health problems, and his concern for his own mortality. He also expressed confidence, support and concern for Martin. Testimony was heard from the victim’s daughter, who responded affirmatively to the prosecutor’s question regarding whether she had been concerned for her father because he lived alone and would be unable to seek assistance if he was ever injured. Additionally, a photographer from a local newspaper testified that he had photographed the victim’s home for an article on distinctive homes, and several of these photographs were admitted into evidence. Appellants claim that all of this evidence not only was irrelevant, but also was prejudicial because it was calculated to generate sympathy for the victim and his family during both the guilt and penalty phases of trial. Contrary to Appellants’ assertion, all of the challenged evidence was relevant to issues that were before the jury. See generally Commonwealth v. LaCava, 542 Pa. 160, 174, 666 A.2d 221, 227 (1995)(stating that “[e]vidence is considered relevant if it logically tends to establish a material fact in the case, tends to make the fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact”). Given that there were no signs of forced entry into Mr. Goodman’s home, the inference arose that the murder had been committed by someone who was acquainted with him and either had his own key or had been voluntarily admitted. Thus, the letter was properly admitted to establish that Martin had a prior relationship with Goodman. The testimony of the daughter was probative of the fact that Goodman resided alone. Finally, the photographs and accompanying testimony of the photographer were relevant because the pictures depicted the vase that Martin used to strike Goodman, as well as a hutch from which, according to the testimony of Goodman’s daughter, the defendants could have obtained the duct tape that they used to bind Goodman. Moreover, the trial court did not abuse its discretion in determining that the potential prejudice about which Appellants complain, namely the effect of sympathetic glimpses of Goodman’s character and life which the jury could have gleaned from the evidence, was outweighed by the probative value of these proofs. Next, Martin contends that he is entitled to a new trial because his incriminating statements that were admitted at trial had been obtained after he had invoked his Fifth Amendment right to counsel and, for that reason, should have been suppressed. Martin claims that at the time of his arrest in Arizona, he was approached by federal agents and was given Miranda warnings. He asserts that at that time, he indicated that he did not wish to speak to anyone until he had spoken with an attorney, and the interview was terminated. However, he alleges that later that same day, he agreed to speak with an agent about the offenses, and after again being provided with additional Miranda warnings, he admitted to possessing the victim’s credit card and stated that he had obtained it three weeks previously in Palmyra, Pennsylvania. Martin now points to this alleged statement, as well as the statements that he made to the county detectives and the corrections officer, in arguing that his constitutional rights were violated. It is true that where a defendant specifically invokes his Fifth Amendment right to have counsel present during interrogation by law enforcement officials, the government may not initiate subsequent interrogation without counsel’s presence, even if the accused agrees to waive his rights. See Commonwealth v. Santiago, 528 Pa. 516, 522, 599 A.2d 200, 202-03 (1991). The defendant, however, is required to establish that he did indeed invoke his Fifth Amendment right to counsel. Commonwealth v. Marinelli, 547 Pa. 294, 319-20, 690 A.2d 203, 216 (1997) (finding no error in the suppression court’s rejection of an appellant’s claim that his Fifth Amendment right to counsel was violated, where nothing credible in the record suggested that the appellant had invoked such right), cert. denied, — U.S. -, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998). In this case, the transcript from the suppression hearing and the trial record do not contain any evidence that Martin invoked his right to counsel and privilege against self-incrimination; nor is there support in the record for Martin’s account of the circumstances under which he gave an incriminating statement to the federal agent. Accordingly, Martin has failed to establish a violation of his Fifth Amendment rights. See generally Marinelli, 547 Pa. at 320, 690 A.2d at 216. Moreover, with respect to the statement given to thé detectives, which is the only statement that Martin challenged in his suppression motion, Martin was fully advised of his rights. The record from the suppression hearing indicates that he was given Miranda warnings and was provided with a waiver form. After reading the form and certifying that he understood his rights and wished to waive them, Martin signed the form and gave his incriminating statement to the detectives. We perceive nothing improper concerning the circumstances under which this statement was given. Accordingly, the trial court did not abuse its discretion in denying Martin’s motion to suppress and in admitting the statement at trial. With respect to the statement given to the corrections officer concerning the killing, the record indicates that it was Martin who initiated the conversation. It is well settled that a gratuitous utterance, unsolicited by the government, is admissible, and that Miranda warnings are unnecessary under such circumstances. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 533, 678 A.2d 342, 351 (1996), cert. denied, 520 U.S. 1157, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997). Therefore, this statement was validly obtained and was admissible. King individually claims that the trial court abused its discretion by admitting a variety of irrelevant, inadmissible and prejudicial evidence against her at trial. Specifically, King asserts that both the Commonwealth and the trial court improperly vouched for the credibility of prosecution witness Barbara Charles by stating that she was the wife of the district attorney. King further asserts that the admission of an application that she filed for federal assistance, as well as testimony concerning the fact that she checked into a local motel as “Anna” King on September 15, 1993 with another party, stigmatized her as a promiscuous person who lived off public assistance. King also contends that the Commonwealth’s cross-examination of her improperly focused on matters that were irrelevant and collateral, and that the testimony of certain witnesses who were called by the Commonwealth to rebut her own testimony, in particular concerning her marriage to Carl William King, was collateral and prejudicial. All of King’s claims concerning these evidentiary issues are meritless. The testimony of Barbara Charles was presented to authenticate King’s signature on the application for federal assistance, which was included in a list of King’s handwriting exemplars that were compared to the signatures on the checks drawn on Goodman’s account. Mrs. Charles was the caseworker who had accepted King’s application. At no time during Mrs. Charles’ testimony did she attempt to cast King in a negative light because of the fact that she had applied for assistance; rather, Mrs. Charles simply related the information contained within the application and verified that King was the person who had signed it. Furthermore, the comments made by the trial court and the prosecutor concerning the fact that Mrs. Charles happened to be the district attorney’s wife were merely passing references that were not seized upon by the Commonwealth in order to bolster her veracity. With respect to the testimony concerning King’s use of the alias “Anna King” when she checked into a motel, this evidence was relevant in light of the facts that King had used her real name when she went to meet Martin at the prison, and that the motel was within close proximity to the prison. Thus, King’s use of an alias was probative of her knowledge that Martin would be improperly absent from prison and of her desire to facilitate his escape. Finally, the testimony of King elicited by the Commonwealth on cross-examination, as well as the testimony of the witnesses called to rebut King, was not improper. During King’s direct examination, defense counsel played Kang’s tape-recorded statement to the Lebanon County detectives, as a predicate to King’s defense of duress. In that statement, King had asserted that she was married to Martin and that he was the father of her son. Therefore, it was proper for the Commonwealth to impeach King’s credibility on cross-examination by questioning her concerning the fact that she was legally married to Carl William King, who was listed on her son’s birth certificate as the child’s father. Several of the Commonwealth’s rebuttal witnesses also testified to this fact. Additionally, King challenges the testimony of a prison guard concerning King’s reputation as an outspoken leader and King’s alleged comments concerning the sentence she would receive if Martin pled guilty. Such testimony was a relevant and appropriate rebuttal of King’s defense, in which she had portrayed herself as a passive companion who had been coerced into participating in the robbery and murder. Because the evidence complained of was relevant and the trial court appropriately exercised its discretion in determining that its probative value outweighed any prejudicial effect, King is due no relief. PENALTY PHASE In their first argument concerning the penalty phase of trial, Appellants contend that they were denied an impartial sentencing jury, because the trial court failed to issue an instruction advising jurors that they were permitted to consider feelings of sympathy and mercy for Appellants in connection with the return of sentences. Appellants essentially acknowledge that such an instruction is not generally required under Pennsylvania jurisprudence; however, they argue that the instruction was necessary in this case to cure misleading inferences that the jury could draw from “anti-sympathy” references made during voir dire. Appellants contend that the jurors’ affirmative responses to voir dire inquiries probing their ability to eschew sympathy and render a decision based upon the evidence support the inference that the jury was incapable of considering and giving full effect to the mitigating evidence and making an appropriate penalty determination. Based upon such an inference, Appellants ask that we find that the sentences of death are infirm under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as under Article I, Sections 9 and 13 of the Pennsylvania Constitution. Appellants cite Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), in support of their federal constitutional claims. Lockett and Eddings, however, stand only for the proposition that a state may not bar relevant mitigating evidence from being presented and considered during the penalty phase of a capital trial. See Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990). Morgan stands for the proposition that any juror to whom mitigating factors are irrelevant should be disqualified for cause, as such juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial. See Morgan, 504 U.S. at 738-39, 112 S.Ct. at 2235. The United States Supreme Court, however, has made clear that general anti-sympathy instructions implicate neither of these concerns and, further, such instructions in general are not prohibited by the federal Constitution. See Saffle, 494 U.S. at 486, 110 S.Ct. at 1259 (stating that a constitutional rule prohibiting anti-sympathy instructions “is not dictated by our prior cases and, were it to be adopted, it would contravene well-considered precedents”). In Saffle, an Oklahoma trial court included among its jury instructions in the penalty phase of a capital case an admonition that the jury was to avoid the influence of sympathy. The appellant contended that the anti-sympathy instruction ran afoul of Lockett and Eddings, because jurors who might otherwise have reacted sympathetically to mitigating evidence might have interpreted the instruction as barring them from considering that evidence altogether. In rejecting this argument, the Court distinguished the factors the jury must be permitted to consider from how the jury may be guided in considering and weighing those factors in deciding the sentence: Th[e appellant’s] argument misapprehends the distinction between allowing the jury to consider mitigating evidence and guiding their consideration. It is no doubt constitutionally permissible, if not constitutionally required, for the State to insist that “the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence.” Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror’s own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors’ emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary. At the very least, nothing in Lockett and Eddings prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant’s mitigating evidence in the form of a “reasoned moral response,” rather than an emotional one. The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice. Saffle, 494 U.S. at 493, 110 S.Ct. at 1262-63 (citations omitted; emphasis in original). Our own precedent has developed along similar lines. In Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (1985), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987), this Court addressed a claim that the trial court erred in its instruction to the sentencing jury to disregard sympathy in reaching its sentencing decision. The Court concluded that where the trial court had properly instructed the jury concerning the broad mitigation provision at Section 9711(e)(8), 42 Pa.C.S. §9711(e)(8), it had satisfied all pertinent constitutional requirements. Id. at 80-81, 501 A.2d at 207; see also Commonwealth v. Rainey, 540 Pa. 220, 234-35, 656 A.2d 1326, 1334 (holding that where trial court instructed jury on “catchall” provision of Section 9711(e)(8) and informed jury that its verdict was to be reached by weighing aggravating and mitigating circumstances against each other, such instruction was correct and nothing further was required), cert. denied, 516 U.S. 1008, 116 S.Ct. 562, 133 L.Ed.2d 488 (1995). In light of Saffle and Lesko, Appellants’ claims of constitutional infirmity in their sentences fail. Preliminarily, the complained-of statements in this case were in the form of questions asked during voir dire and thus of less direct relevance to the jury’s ultimate sentencing decision than were the trial courts’ penalty instructions upheld in Saffle and Lesko. Further, such questions did not suggest that the jurors eschew sympathy specifically for Appellants, but rather, asked whether they would be able to put sympathy aside altogether to decide the case based upon the evidence presented. Most important, at the outset and at the close of the penalty phase, the trial court clearly instructed the jurors that they were required to consider “any other evidence of mitigation concerning the character and record of the defendants] and the circumstances of [their] offense.” The trial court also instructed the jury concerning the parties’ respective burdens of proof and the proper weighing of the aggravating circumstances against the mitigating circumstances. Thus, read as a whole, the trial court’s jury instruction fully and fairly apprised the jury of its duties concerning mitigating evidence. The questions asked during voir dire did no more than probe whether the jurors could confine themselves to the facts and the law and not be distracted by matters unrelated to the evidence; such questions in no way misled the jury into ignoring properly admitted evidence that might have been favorable to Appellants. Thus, under both federal and state precedents, the voir dire was proper, and no relief is due Appellants on this issue. Appellants further contend that the trial court improperly permitted the jury to be “death-qualified” by permitting voir dire to exclude those jurors who were opposed to the death penalty, while at the same time it failed to require the jury to be “life-qualified” by conducting an examination to determine whether any jurors were partial to the death penalty. Appellants claim that the resulting jury was, therefore, disproportionately “pro-death.” This Court has repeatedly held that the process of screening prospective jurors to determine whether any has moral, religious or ethical beliefs that would prevent him or her from voting for the death penalty is consistent with the guarantees of a fair trial. See, e.g., Marinelli, 547 Pa. at 320, 690 A.2d at 216 (citing Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986)); Lambert, 529 Pa. at 335-36, 603 A.2d at 575. Conversely, pursuant to the due process clause of the Fourteenth Amendment to the United States Constitution, a defendant in a capital case is permitted to pose questions during voir dire in order to determine if any juror is incapable of returning a verdict of life imprisonment. See Commonwealth v. Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994) (citing Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). While permitted, however, life qualification questions are not required, and the absence of such questions alone does not implicate error on the part of the trial court. See Commonwealth v. Hardcastle, 549 Pa. 450, 455-56, 701 A.2d 541, 543 (1997). The scope of voir dire remains a matter committed to the sound discretion of the trial court, subject to review only for abuse of discretion. See Commonwealth v. Fisher, 545 Pa. 233, 249, 681 A.2d 130, 137 (1996). In this case, Appellants’ trial attorneys were permitted to ask general questions of prospective jurors, and the record does not reflect the imposition of any restrictions that would have precluded exploration of whether any of the jurors had fixed views about the imposition of a life sentence. All jurors completed a questionnaire that developed aspects of their individual beliefs about the death penalty and inquired whether they would be able to follow the judge’s instructions regarding the applicable law. In the absence of any specific complaint or showing of unwarranted preclusion by the trial court, Appellants’ claim fails. Appellants next challenge certain portions of the trial court’s jury instructions concerning the imposition of a life sentence, and the nature and use of aggravating and mitigating circumstances. A trial court has broad discretion in phrasing its instructions to the jury and can choose its own wording so long as the law is clearly, adequately and accurately presented to the jury for consideration. Commonwealth v. Hawkins, 549 Pa. 352, 391, 701 A.2d 492, 511 (1997), cert. denied, — U.S. -, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). Furthermore, a trial court need not accept counsel’s wording for an instruction, as long as the instruction given correctly reflects the law. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). In reviewing a challenged jury instruction, an appellate court must consider the entire charge as a whole, not merely isolated fragments, to ascertain whether the instruction fairly conveys the legal principles at issue. Commonwealth v. Jones, 546 Pa. 161, 192, 683 A.2d 1181, 1196 (1996). Appellants challenge the trial court’s refusal to instruct the jury that a defendant in a capital case who is sentenced to life imprisonment is ineligible for parole. They claim that the evidence concerning Martin’s history of felony convictions, his violation of his parole and work-release privileges, as well as the fact that King was out of prison despite approximately twenty prior convictions, implicitly raised the issue of future dangerousness, thereby requiring an instruction that a life sentence in a capital case means “life without parole.” In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the United States Supreme Court held that where future dangerousness is at issue and a specific request is made by a capital defendant, due process mandates that the jury be informed what the term “life sentence” means. See also Commonwealth v. Speight, 544 Pa. 451, 469, 677 A.2d 317, 326 (1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967, 136 L.Ed.2d 852 (1997); Commonwealth v. Simmons, 541 Pa. 211, 250 n. 15, 662 A.2d 621, 640 n. 15 (1995), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996); Commonwealth v. Christy, 540 Pa. 192, 216, 656 A.2d 877, 889, cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). Conversely, instructions detailing the character of a life sentence are not required where future dangerousness is not expressly implicated. See Commonwealth v. May, 551 Pa. 286, 290-92, 710 A.2d 44, 47 (1998). The trial court is not required to issue the instruction based upon references to a defendant’s past violent acts alone. Id. Here, contrary to Appellants’ assertion, the issue of future dangerousness was not before the jury. At no time during either phase of trial did the prosecutor argue or suggest that the death penalty should be imposed because Appellants could potentially hurt someone else in the manner in which they had harmed Mr. Goodman. Nor did the prosecutor suggest that if a sentence of life imprisonment were imposed, Appellants eventually could be released on parole. The introduction of evidence concerning Martin’s escape from prison and parole violations during the guilt phase of trial, and of Martin’s prior felony convictions during the penalty phase, was not the equivalent of raising the issue of future dangerousness. See May, 551 Pa. at 290-92, 710 A.2d at 47. Accordingly, the trial court properly denied defense counsel’s request for an instruction on life imprisonment. Appellants also argue that the trial court improperly . instructed the jury concerning the nature and use of aggravating and mitigating circumstances. During its opening instructions to the jury, the trial court stated: “Loosely speaking, aggravating circumstances are those things about this particular killing and the killer which make a first degree murder case more terrible and deserving of the death penalty, while mitigating circumstances are those things which make the case less terrible and less deserving of death.” In its closing instructions, the court reiterated, “Aggravating and mitigating circumstances ... are things that make a first degree murder case either more terrible or less terrible.” Appellants claim that such instructions improperly diverted the jury’s focus to the “terribleness” of the circumstances of the case, rather than to Appellants’ personal culpability. This argument is meritless. Our review of the record reveals that the instruction given by the trial court was nearly identical to that set forth in Sections 15.2502E and F of the Pennsylvania Suggested Standard Criminal Jury Instructions. Indeed, the word “terrible,” of which Appellants complain, is specifically used in the standard instructions concerning aggravating and mitigating circumstances. More over, in addition to the general description cited by Appellants, the trial court specifically explained to the jury each mitigating circumstance claimed by each of Appellants. See Commonwealth v. Saranchak, 544 Pa. 158, 175-76, 675 A.2d 268 (Pa.1996)(rejecting challenge to a penalty-phase instruction describing aggravating and mitigating circumstances as “things that make a first degree murder case more or less terrible” on the basis that the trial court’s entire instruction appropriately explained the mitigating circumstances at issue), cert. denied, — U.S. —, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997). The trial court also instructed the jury concerning the relative burden of proof with respect to both types of circumstances and explained the meaning of the standards of reasonable doubt and preponderance of the evidence. Thus, the trial court adequately and accurately apprised the jury of its function in the penalty phase of the proceedings. Next, Appellants raise multiple issues connected with the jury’s determination that the killing of Mr. Goodman implicated the aggravating circumstance of torture, 42 Pa.C.S. §9711(d)(8). First, Appellants contend that the evidence was insufficient to support the jury’s finding of torture. Although Section 9711(d)(8) is silent concerning specific intent to torture, this Court has interpreted the statute as requiring the existence of a specific intent to inflict pain and suffering, separate and apart from the specific intent to kill. Commonwealth v. Auker, 545 Pa. 521, 551, 681 A.2d 1305, 1321 (1996). In elaborating on the requirement of a separate specific intent to torture, this Court has stated that “[t]here must be an indication that the killer was not satisfied with the killing alone.” Id. Furthermore, “[[Implicit in the definition of torture is the concept that the pain and the suffering imposed upon the victim was unnecessary, or more than needed to effectuate the demise of the victim.” Chester, 526 Pa. at 607, 587 A.2d at 1381. Thus, although in many homicide cases the victim suffers considerable pain and anguish, the aggravating circumstance of torture is not established unless the Commonwealth shows beyond a reasonable doubt that the defendant “intended to inflict pain beyond that which accompanied the intentional killing____” Auker, 545 Pa. at 551, 681 A.2d at 1321. In this case, Mr. Goodman was injured, bound and killed in a cruel and progressive manner. Martin hit him over the head, then taped his mouth, after which Appellants wrapped various materials around his head, bound him in a manner such that his breathing was further constricted as he struggled, and dragged him to the basement where he died a lingering death. While Appellants would have had the jury infer from the circumstances of the killing that Goodman’s suffering was merely an unintended collateral consequence of their clumsy improvisation, in addressing arguments as to the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as the verdict winner and draw all reasonable and proper inferences in Commonwealth’s favor. See Hardcastle, 519 Pa. at 246, 546 A.2d at 1105. Here, Appellants chose a particularly heinous manner in which to terrorize and murder Goodman, and the circumstances of the killing provided sufficient evidence from which the jurors could infer an intent on their part to torture. Appellants also challenge certain evidence that was admitted in support of the aggravating circumstance of torture. Specifically, they contend that the trial court erred in permitting the jury to view the videotape of Dr. Mihalikis’ testimony concerning Mr. Goodman’s emotional state at the time of the homicide, and that certain statements made by the pathologist were inflammatory and prejudicial. In questioning Dr. Mihalikis during the penalty phase, the Commonwealth focused extensively upon Goodman’s mental state. For example, the Commonwealth explored the psychological effect of the victim’s hands being tied behind his back, eliciting from Dr. Mihalikis a statement that Goodman would have experienced terror because of the physical limitations and the resulting impossibility of freeing himself. On further questioning, Dr. Mihalikis went on to describe the physical sensations that Goodman would have experienced during suffocation, noting that there would have been a period of terror when he realized his impending death. In response to further questions concerning what Goodman experienced while he suffocated, Dr. Mihalikis reiterated that the altercation, the binding and the wrappings were all “very, in fact extremely, terrorizing,” and that Goodman experienced not so much actual pain, but terror because he was not getting enough oxygen and would eventually run out of air and die. The doctor stated, “That’s the kind of terror. He knows that if he doesn’t get free, he’s going to die.” Finally, he concluded, “I have no doubt that fear is probably a mild term ... to have gone through this kind of a confrontation, to have all these things on top of you, to have the binding ... it is not fear, it is terror with a capital T.” Near the conclusion of this testimony, the trial judge noted that he “was not clear whether we need this doctor’s testimony to tell us that someone who knows of impending death undergoes periods of fear and terror.” However, the videotape of the doctor’s testimony was admitted into evidence during the penalty phase, over defense counsels’ objection. “Expert testimony is permitted as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman.” Auker, 545 Pa. at 543, 681 A.2d at 1317 (citing Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976)). Where the issue involves a matter of common knowledge, expert testimony is inadmissible. O’Searo, 466 Pa. at 229, 352 A.2d at 32. Here, there certainly was no need for an expert to testify to the fear that Mr. Goodman felt in his confrontation with Martin and King — the fact that a human being would experience fear and terror as he is brutalized and suffocated is so basic that expert opinion is unnecessary to assist the jury. Therefore, this is not a subject upon which expert testimony is admissible. The Commonwealth asserts, however, in the alternative, that Dr. Mihalikis’ testimony was admissible as lay opinion testimony. We reject this argument. Dr. Mihalikis was presented by the Commonwealth as an expert witness. The Commonwealth obviously intended for the jury to view his testimony as being cloaked with the knowledge and skill possessed by persons in his areas of expertise. The testimony was not presented in a manner such that Dr. Mihalikis could step out of his role as expert, depending upon the intended focus of the Commonwealth’s proof, nor was the jury so instructed. Accordingly, the testimony concerning the victim’s emotional state was improperly admitted. Finally, the Commonwealth asserts that, if the admission of Dr. Mihalikis’ testimony was error, such error was harmless for the very reason that the testimony was not properly admitted, namely, that the pathologist’s commentary merely reflected the jury’s existing, common understanding concerning Mr. Goodman’s mental state at the time of the killing. However, improper expert testimony may place undue emphasis upon common inferences and explanations. See Collins v. Zediker, 421 Pa. 52, 55, 218 A.2d 776, 778 (1966)(stating that “[j]urors are humans and are impressed by scientific talk even though, upon profound reflection, they could realize that in the particular field under discussion they are as much at home as the scientist”). Here, particularly given the extensive focus of the district attorney upon Dr. Mihalikis’ assessment concerning Goodman’s mental state, we cannot conclude that the trial court’s error in permitting the testimony was harmless to the jury’s determination of the aggravating circumstance of torture. Accordingly, the trial court erred in permitting the jury to consider this aggravator in its penalty determination. Martin also challenges the admission of his prior convictions for burglary and criminal trespass, which the Commonwealth offered into evidence to establish the aggravating circumstance of a significant history of felony convictions involving the threat or use of violence to the person. See 42 Pa.C.S. §9711(d)(9). He contends that, in order to establish a significant history of violent offenses, the Commonwealth must offer evidence of crimes involving the actual use or the actual threat of violence. Martin argues that the offenses of burglary and criminal trespass are not such crimes and, since the Commonwealth offered the fact of five burglary and five criminal trespass convictions alone, the evidence was insufficient to establish the Section 9711(d)(9) aggravating circumstance. This Court has previously had several occasions to consider whether the offense of burglary constitutes a crime of violence for purposes of Section 9711(d)(9). Initially, in Commonwealth v. Christy, 511 Pa. 490, 508, 515 A.2d 832, 841 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987), Justice Papadakos, writing for the Court, stated that, for a felony to be includable under Section 9711(d)(9), the Commonwealth was required to present evidence that the defendant actually threatened another with violence or actually used violence on another. However, in Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988), Justice Papadakos, again writing for the majority, concluded that the portion of Christy in which the offense of burglary by itself was excluded as a crime of violence was dictum, and that “the crime of burglary has always been and continues to be viewed as a crime involving the use or threat of violence to the person.” Id. at 15, 549 A.2d at 559. The principal reason offered for this holding was the observation that “[e]very ... burglar knows when he attempts to commit his crime that he is inviting dangerous resistance.... It is this threat of violence to persons that has prompted the Legislature into expanding the definition of burglary to include all those entries without privilege into places where people might be present.” Id. at 14, 549 A.2d at 559. This Court’s subsequent holdings have consistently followed Rolan. See Commonwealth v. Collins, 549 Pa. 593, 606, 702 A.2d 540, 546 (1997)(holding that the defendant’s juvenile convictions for burglary were crimes of violence for purposes of the Section 9711(d)(9) aggravating circumstance); Commonwealth v. Bracey, 541 Pa. 322, 349 n. 15, 662 A.2d 1062, 1075 n. 15 (1995)(relying upon Rolan to uphold a sentence of death where the jury found the aggravating circumstance of Section 9711(d)(9) based upon proffered evidence of two burglary convictions), cert. denied, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996); Commonwealth v. Rivers, 537 Pa. 394, 415, 644 A.2d 710, 720 (1994) (citing Rolan for the principle that burglary involves the inherent threat of violence), cert. denied, 516 U.S. 1175, 116 S.Ct. 1270, 134 L.Ed.2d 217 (1996); Commonwealth v. Baker, 531 Pa. 541, 568, 614 A.2d 663, 676 (1992) (same); Commonwealth v. Thomas, 522 Pa. 256, 276, 561 A.2d 699, 709 (1989)(applying Rolan and concluding that a criminal trespass conviction is admissible as evidence of a crime of violence for purposes of Section 9711(d)(9)). In accordance with these decisions, the evidence in this case was sufficient to support the jury’s finding of the aggravating circumstance of Section 9711(d)(9). Next, Appellants make a number of arguments concerning the jury’s penalty phase consideration of certain evidence. King claims that evidence of her prior convictions was improperly admitted in rebuttal of the mitigating evidence that she presented concerning her family relationships. She also claims that certain evidence, such as the photographs of the victim’s body, the testimony concerning the victim’s personal life, and the impeachment evidence concerning the parentage of her child, was extraneous to the aggravating circumstances identified at Section 9711(d), which are the only proper considerations militating in favor of the imposition of a death penalty. As such, King claims that this evidence was improperly incorporated into the penalty phase of trial. Lastly, both Appellants claim that the jury failed to find and give effect to certain mitigating factors that had been established by a preponderance of the evidence. All of these arguments are meritless. None of the complained-of evidence was improperly admitted or significantly prejudicial, and the trial judge issued adequate instructions informing the jury as to the range of proper considerations in sentencing. There is no basis, then, to support Appellants’ contentions that the jury strayed beyond such range in the penalty phase. See generally Baker, 531 Pa. at 559, 614 A.2d at 672 (stating that the law presumes that juries follow the trial court’s instructions as to the applicable law). Furthermore, the weight to be accorded the aggravating and mitigating factors presented is a function that is reserved solely for the jury. Commonwealth v. Banks, 513 Pa. 318, 354, 521 A.2d 1, 19, cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Thus, we will not disturb the conclusions that the jury reached concerning Appellants’ evidence of mitigating circumstances. King also contends that certain comments made by the prosecutor during closing argument in the penalty phase were improper. Specifically, King contends that the prosecutor improperly vouched for the propriety of a death sentence, commented upon King’s failure to express remorse, and suggested that the death penalty should be imposed in this case to counteract a societal trend away from personal responsibility. Challenged prosecutorial comments must be considered in the context in which they were made. Commonwealth v. Morales, 549 Pa. 400, 424, 701 A.2d 516, 528 (1997). “[A] prosecutor’s statements to the jury will not be considered improper unless their unavoidable effect is to prejudice the jury so that a true verdict cannot be rendered because the existence of bias and hostility makes it impossible to weigh the evidence in a neutral manner.” Commonwealth v. Travaglia, 541 Pa. 108, 134, 661 A.2d 352, 365 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). Furthermore, during the penalty phase, where the presumption of innocence is no longer applicable, the prosecutor is permitted even greater latitude in presenting argument. Id. Our review of the record reveals nothing improper in the prosecutor’s closing remarks. It is axiomatic that a prosecutor may argue in favor of the death penalty, and must be afforded reasonable latitude in arguing his position to the jury. Commonwealth v. Jones, 542 Pa. 464, 515, 668 A.2d 491, 516 (1995), cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). Taken in context, the prosecutor’s remarks that “[i]t is not easy for me to stand here and request a death penalty” and “I suggest to you respectfully that if there is a case in where the death penalty is appropriate, it is this one” were nothing more than a reflection on the somberness of the occasion and an argument for the appropriateness of the death penalty, both of which are permissible. See Commonwealth v. Sneed, 514 Pa. 597, 613, 526 A.2d 749, 757 (1987). With respect to the prosecutor’s contrasting King’s display of tears when discussing her own background with her emotionless description of Goodman’s murder, we note that this Court has consistently recognized that a prosecutor may comment upon a defendant’s lack of remorse. See Hill, 542 Pa. at 314, 666 A.2d at 653. The prosecutor’s remarks that individual responsibility for one’s actions is paramount in our society were appropriate, given the fact that King had presented evidence throughout the trial that her level of participation and responsibility regarding the murder was minimal. It is permissible for a prosecutor to argue in response to an anticipated defense position. Marrero, 546 Pa. at 611, 687 A.2d at 1109. Finally, Appellants argue that the cumulative effect of alleged errors during the guilt and penalty phases of trial undermines the integrity of the convictions and sentences. Such arguments generally have been rejected in favor of an individualized assessment of the merits of claimed trial errors. See generally Commonwealth v. Murphy, 540 Pa. 318, 336 n. 6, 657 A.2d 927, 936 n. 6 (1995)(citing Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992)). Moreover, in this case, we have reviewed each of Appellants’ claims of error and have dismissed each as meritless, save one, namely, the trial court’s error in submission of the aggravating circumstance of torture to the jury. INDEPENDENT REVIEW OF THE DEATH SENTENCE We must affirm the judgment of sentence unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S. §9711(h)(3). Upon review of the record, we conclude that the sentence imposed in this case was not the product of passion, prejudice or any other arbitrary factor, but rather was based upon the evidence that Appellants killed the victim with premeditation during the robbery. Although we have concluded that the aggravating circumstance of torture was improperly before the jury, the remaining aggravating circumstance found by the jury with respect to both defendants, commission of the homicide during the perpetration of a robbery, was indisputably proven. Additionally, with respect to Martin, we have sustained the jury’s determination as to the aggravating circumstance of a significant history of felony convictions involving the use or threat of violence. In this situation, where one or more aggravating circumstances remain and the jury has found no mitigating circumstances, the death sentences are to be affirmed. See Christy, 511 Pa. at 510, 515 A.2d at 842; see also Bracey, 541 Pa. at 349 n. 15, 662 A.2d at 1075 n. 15 (citing Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704 (1992), for the proposition that invalidation of one aggravating circumstance does not warrant reversal where an additional aggravating circumstance has been validly found by the jury and no mitigating circumstances have been found). Finally, having reviewed Appellants’ sentences in light of the sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts, we conclude that the sentences of death imposed upon Appellants are not excessive or disproportionate to the penalty imposed in similar cases. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). Accordingly, we affirm the verdicts and sentences of death imposed upon Bradley Martin and Carolyn King by the Court of Common Pleas of Lebanon County. Chief Justice FLAHERTY files a concurring opinion in which Justice NIGRO joins. Justices ZAPPALA, CASTILLE and NEWMAN file concurring opinions. . Mr. Goodman’s daughter later testified at trial that her lather was attracted to young men, and an acquaintance of Martin's testified that she had seen Martin in Goodman's home on previous occasions, being openly affectionate with Goodman. . Like a number of Appellants' claims of trial error, this issue was not properly preserved for review. King concedes that her counsel consented to the consolidation of offenses, and Martin's counsel neither objected nor consented on the record. Moreover, apparently as a consequence of the continued involvement of trial counsel in these appeals, neither of the Appellants has framed his or her challenge to the propriety of consolidation in terms of counsel’s ineffectiveness, which would ordinarily be required to preserve the opportunity for review. See Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994). However, the relaxed waiver standard employed in capital cases on direct review permits consideration of this issue on its merits. See Commonwealth v. Gibson, 547 Pa. 71, 91 n. 19, 688 A.2d 1152, 1162 n. 19, cert. denied, - U.S. -, 118 S.Ct. 364, 139 L.Ed.2d 284 (1997); Zettlemoyer, 500 Pa. at 50 n. 19, 454 A.2d at 955 n. 19. . Martin further claims that consolidation of the two indictments improperly injected his prior offenses, which do not fall within any of the enumerated statutory aggravating factors, into the penalty phase of the proceedings. Given the trial court's specific instructions defining the appropriate considerations for the jury in sentencing, see infra, and Martin's failure to demonstrate any specific prejudice as a result of the consolidation, he is entitled to no relief on such claim. . In addition to the Sixth Amendment right to counsel, the United States Supreme Court has held that a separate right to counsel is encompassed in the Fifth Amendment guarantee that ''[n]o person ... shall be compelled in any criminal case to be a witness against himself.” See McNeil v. Wisconsin, 501 U.S. 171, 177-78, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991). The United States Supreme Court described the Fifth Amendment right to counsel as one of several “prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation.” Id. at 176-77, 111 S.Ct. at 2208 (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). . This Court has held that absolute "mercy verdicts” are prohibited. See Commonwealth v. Henry, 524 Pa. 135, 159-60, 569 A.2d 929, 941 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991). Further, in Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642 (1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1880, 135 L.Ed.2d 175 (1996), the Court rejected the argument that a sentencing jury must be instructed that it can dispense mercy if it so chooses, noting that the “[ajppellant was allowed to present and argue any evidence which was relevant and admissible in an attempt to convince the jury that the death sentence should not be imposed in this case. That is all that is constitutionally required.” Id. at 311, 666 A.2d at 652 (quoting Commonwealth v. Young, 536 Pa. 57, 76, 637 A.2d 1313, 1322 (1993)). . For example, prospective jurors were presented with a questionnaire that included the following question: “Would you have any problems putting aside any sympathy you might feel for anyone involved in the trial and deciding the case on the evidence alone?” All of the prospective jurors responded in the negative, and eleven of the jurors who were empanelled specifically indicated during individual voir dire that they would not give effect to feelings of sympathy in reaching their verdict, including feelings of sympathy arising from Appellants' family situations. Appellants also complain about similar questions asked by the district attorney during individual voir dire. . The relevant instruction was as follows: You are the judges of the facts. The importance and worth of the evidence is for you to determine. You must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. You should discharge your duties as jurors impartially, conscientiously, and faithfully under your oaths and return such verdict as the evidence warrants when measured by these Instructions. Saffte, 494 U.S. at 487, 110 S.Ct. at 1259. . As noted by the United States Supreme Court, a jury's reliance upon extraneous emotional factors "would be far more likely to turn the jury against a capital defendant than for him.” California v. Brown, 479 U.S. 538, 543, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987). . Appellants also argue that the trial court’s refusal to instruct the juiy concerning the meaning of life imprisonment prevented the jury from considering and giving full effect to relevant mitigating evidence, presented the jury with a false choice of sentencing options, denied Appellants the heightened procedural safeguards required in capital cases, produced an arbitrary and capricious sentence, and violated the Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 9 and 13 of the Pennsylvania Constitution. In light of our previous decisions in this area, cited above, all of these arguments are rejected. . While the Court does not adopt or approve these standard instructions in the first instance, we have lent our approval to certain specific instructions on a case-by-case basis and have often considered the trial court's reliance upon the standard language as an aid in our review. See generally Commonwealth v. Tilley, 528 Pa. 125, 141, 595 A.2d 575, 583 (1991). . Appellants also challenge the trial court’s jury instruction concerning torture, contending that the phrase "heinous, atrocious or cruel,” used by the trial court to define torture, is unconstitutionally vague. Additionally, Appellants argue that when the jury asked for clarification of the meaning of intent to torture, the trial court's explanation, which employed the phrase “he or she or both of them,” improperly suggested that a finding of intent to torture on the part of one defendant would suffice to establish the requisite intent on the part of both defendants. In light of our holding that the aggravating circumstance of torture was improperly before the jury, it is not necessary to address these issues. . The evidence was introduced through the Chief of the North Londonderry Township Police and the Lebanon County First Deputy Clerk of Courts, who both testified only that Martin had a prior record of such convictions. On cross-examination of the Chief of Police, the defense elicited the fact that no occupants were home at the time Martin committed these offenses. . In the majority's view in Christy, the language of Section 9711(d)(9) concerning the “threat of" violence was not the equivalent of the "potential for” violence. The majority noted that force was not an element of burglary and that every felony carries with it the potential for violence if the perpetrator is caught in the act. Accordingly, the majority concluded that violence must actually be threatened or used during the commission of the felony for such crime to be includable under subsection (d)(9). See Christy, 511 Pa. at 507-08, 515 A.2d at 840-41. . The one exception is Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d 626 (1995), which discussed a claim of trial error in the submission of the Commonwealth's evidence concerning the (d)(9) aggravator with reference to the discussion set forth in the Christy case. Notably, trial in the Rompilla case commenced concurrent with the entry of this Court's decision in Rolan. . For example, Martin offered evidence that he was sexually abused during his childhood, resulting in unfavorable personality and behavioral changes that persisted and worsened despite extensive counseling. King offered evidence that she also experienced a difficult childhood, was physically and sexually abused, and was the mother of several children. . By legislation enacted June 25, 1997, subsection (h)(3)(iii) providing for proportionality review and a portion of subsection (h)(4) that references such review were stricken from Section 9711(h). See Act of June 25, 1997, No. 28, §1 (Act 28), effective immediately. However, this Court will continue to undertake proportionality review in cases where the death sentence was imposed prior to the effective date of Act 28. Commonwealth v. Gribble, 550 Pa. 62, 89-91, 703 A.2d 426, 440 (1997). . Pursuant to Section 9711(i), 42 Pa.C.S., the Prothonotary is directed to transmit the complete record of this case to the Governor of Pennsylvania within ninety days.

Opinion by Cunningham, J., The question involved upon this appeal is whether an order of the Public Service Commission — réfusing reparation to Centre County Lime Company, the appellant, for damages it claims to have sustained in consequence of the collection from it by Beliefonte Central Railroad, Pennsylvania Railroad and other carriers, of alleged unreasonable rates for the transportation of certain commodities to and from its plant — was reasonable and in conformity with law. The making of the order, in the exercise of the powers conferred upon the commission by Section 5 of Article V of the Public Service Company Law approved July 26, 1913, P. L. 1374, is prima facie evidence of its reasonableness and the burden of proving the contrary is upon appellant. The complaint under which appellant sought reparation was filed August 13,1928, at Complaint Docket No. 7790, and the order appealed from was entered September 23, 1930. A statement of some material and ,, undisputed facts with a summary of the proceedings is essential to an understanding of the question now involved. The plant of appellant is located at Lime Centre on the Bellefonte Central Railroad, a short line railroad, 18.5 miles in length, extending from Bellefonte southwest to State College and connecting with the Pennsylvania Railroad at Bellefonte. Lime Centre is 3.5 miles from the centre of the Pennsylvania yard at Bellefonte. Appellant’s business is the quarrying of limestone and crushing of stone, manufacture of fluxing stone, crushed stone, ground limestone, burned lime and all forms of lime products. In the transaction of its business it receives inbound shipments of coal, brick and supplies at its plant and makes outbound shipments of its products. On April 13, 1925, there was docketed with the commission at its Complaint Docket 6483 a complaint by appellant against the intrastate rates charged by Bellefonte Central, Pennsylvania and other carriers upon shipments to and from its plant. A companion complaint was filed with the Interstate Commerce Commission against the interstate rates. The Bellefonte Central Railroad supported appellant to some extent by answering that the rates complained against were published by its connecting line and that it was willing to join in any rate established by the commission, and by requesting, at the hearings, the application to its line of the Bellefonte rates. The general ground for the complaint against the rates involved in these proceedings was that the rates between stations on the Bellefonte Central Railroad and the remainder of the state were in all instances in excess of the rates on the same commodities to and from Bellefonte by the amount of the Bellefonte Central’s local rates, i. e., the fates from the coal fields, from which coal is shipped to appellant, and the rates upon appellant’s outbound shipments of its products were higher than the rates to and from Bellefonte. Bellefonte is on a short branch of the P. R. R. ruxming south from Milesburg on the Williamsport Division, which extends from Williamsport through Lock Haven to Tyrone on the main line, Milesburg being approximately halfway between Lock Haven and Tyrone. Bellefonte is also connected with Montandon by a line of the P.'R. R. The Bellefonte Central Railroad thus serves the territory between two lines of the Pennsylvania. After extended hearings the complaints were sustained by both commissions and in a report and order of the Pennsylvania Commission, dated January 3, 1928, it was determined that “the longer haul and group rates complained of are and for the future will be unjust and unreasonable to the extent that they exceed or may exceed those contemporaneously in effect on like commodities to or from Bellefonte and ......that the maintenance of rates to of from points on the Bellefonte Central Railroad higher than the rates to or from Bellefonte results and will result in undue prejudice to complainant and the localities, served by the Bellefonte Central Railroad and in undue preference of complainant’s competitors at Bellefonte and Lamont and of the localities accorded the Bellefonte basis of rates.” It was further found that the “shorter haul rates are and for the future will be unjust and unreasonable to the extent that they exceed or may exceed those contemporaneously in effect to or from points on the Pennsylvania Railroad beyond Bellefonte equidistant with the stations on the Bellefonte Central Railroad from Bellefonte.” The order directed the carriers to establish by February 25,1928, and thereafter maintain and apply rates decreased to the extent indicated in the report. In the complaint against the rates there was included a prayer for reparation for the alleged unreasonable charges which had been collected during the two-year period preceding its filing and would be during the pendency of the proceedings. The report of the commission concluded with the statement that “a claim for reparation is a separate proceeding” and the commission deemed it appropriate to say that, i'n view of its conclusions directing the establishment of bases for rates for the future only, the situation did not in its judgment “warrant an award of reparation.” Appellant, however, under date of August 13,1928, filed with the commission at Complaint Docket 7790 its complaint against the rates charged since April, 1923, and its petition, for reparation upon shipments of its products for the period beginning April 4,1923, two years prior to the filing of the complaint against the rates, down to February 25,1928, the effective date of the reduced rates. On October 30, 1928, the commission, referring to its previous report, made an order dismissing this complaint and appellant thereupon appealed from that order to this court. On July 2,1929, we filed an opinion (Centre County Lime Co. et al. v. Commission, 96 Pa. Superior Ct. 590) in which it was pointed out that the object of a complaint against existing rates is to prevent a public wrong for the future and that a proceeding for reparation is intended to redress a private wrong of the past; that the jurisdiction of the commission is exercised under separate and distinct sections of the act — as to complaints against existing rates under Section 3 of Article Y and upon petitions for reparation under Section 5 of that article; that findings on the issues actually involved in a proceeding against rates furnish no basis for awarding or refusing reparation; and that up to the time the petition for reparation was dismissed there had been no specific determination by the commission with respect to the reasonableness or unreasonableness of the rates in the past. Other questions were involved in the appeal but upon this branch of the case the conclusion reached was that it was the duty of the commission to afford appellant “a hearing upon the question of the reasonableness of the rates in the past and whether it has sustained damages.” By way of precaution, it was said: “We do not even intimate that we think appellant is entitled to reparation.” The order of the commission dismissing the petition for reparation was accordingly reversed and the record remitted with directions to reinstate the petition and take such proceedings thereon as should not be inconsistent with the opinion. Pursuant to this direction, a hearing upon the question of appellant’s right to reparation was had before the commission on October 30,1929, and resulted in the order of September 2'3,1930, refusing reparation, from which order the present appeal was taken. Appellant’s complaint and petition for reparation, as reinstated by this court, invoked the exercise of the powers conferred upon the commission by Section 5 of Article Y. After referring to its original complaint against the rates, filed under Section 3 of Article V, and the finding by the commission that they were unreasonable as of January 3,1928, and would be for the future, it averred that appellant had made, within two years prior to the filing of its original complaint and during the rate proceedings, numerous shipments of its products, at the then existing rates, to destinations within the state; and that “in almost every instance the commodities were shipped freight collect and the amount of the excess over the rate to and from Bellefonte, Pennsylvania, which is the basis of the claimant’s claim for reparation, was in each instance deducted in the adjustment of accounts with the purchasers of the products and was therefore paid and borne by the claimant, and claimant says that due proof of these details will be made upon hearing.” Attached were statements setting forth the details of the shipments upon which reparation was claimed in the aggregate amount, including interest, of $5,336.28 ; the prayer was that the commission, after a hearing upon the merits, would find that appellant had been injured and would make an order directing the payment to it of the amount of damages it had sustained in consequence of the collection from it in the past of rates which' it alleged were unreasonable when collected. In our opinion it became the duty of the commission under this complaint to “determine,” in the first place, whether the rates had been unreasonable prior to January 3, 1928, and, if so, proceed, in the second place, to ascertain what damages, if any, appellant had sustained and make an appropriate order awarding or refusing reparation as the evidence might warrant. No further petition by appellant would be necessary to secure reparation if the commission found that the rates had been unreasonable in the past and the evidence showed that it had actually been damaged in an ascertainable amount. We do not agree with the contention of the commission that, “if a shipper is to be accorded reparation, he must file his separate complaint against the past rates, to be followed, if and when they have been declared unreasonable, by his petition for reparation”; we see no valid objection against combining a complaint against past rates, filed under Section 5 of Article V, and a petition for reparation in one paper; that is a different proposition from including a prayer for reparation in a complaint, filed under Section 3, against existing rates. ■ At the hearing appellant adduced evidence tending to show that during the period from April, 1923, to the effective date of the lower rates there had been no material change in the equipment or service of the carriers, or in operating conditions, which would affect their rates; that the rates then charged had favored appellant’s competitors at Bellefonte and Pleasant Gap, a nearby station on a line of the P. R. R.; that, with the exception of a reduction in February, 1925, on lime products from Lime Centre to Bellefonte, there had been no change in inbound coal or outbound lime products rates; that coal was generally purchased f. o. b. mines; that Bellefonte is a point within a recognized origin and destination rate group; and that appellant and one other plant, Chemical Lime Company, furnished practically forty per cent of all outbound shipments of lime products over Bellefonte Central. There was also testimony that as a result of the reduction in rates under the commission’s order there had been a “substantial increase” in the traffic handled by the Bellefonte Central. Counsel for appellant then offered to prove that appellant “paid and bore the freight charges on the shipments involved to the amounts and for the transportation shown by the schedules made appendices to the petition and thereby had sustained actual damages to the extent of the amounts of reparation claimed and set forth in the said appendices......and to prove the shipments in respect to which such rates were paid and borne, the freight charges in respect to each thereof, the date of each such shipment, and other items set forth in said appendices.” Counsel for the carriers objected to the introduction of the proposed evidence upon the ground that, as there had, as yet, been no finding by the commission as to whether the rates had or had not been unreasonable in the past, the appropriate time for the reception of evidence intended to form a basis for the assessment of damages had not arrived. The sitting commissioner sustained this objection and his ruling was subsequently affirmed by the commission. The second and third assignments are based upon the exclusion of these offers. "We think these assignments are without merit. Obviously, detailed evidence showing the number of shipments made and the rates paid by appellant on each would be immaterial unless and until the commission had determined that the past rates had been unreasonable. It would serve no good purpose to take a mass of testimony relative to the number of shipments and rates paid thereon until the primary question of the reasonableness or unreasonableness of the charges had been determined. The carriers then offered evidence that Bellefonte is not near the centre of any origin group and introduced a number of maps illustrating the reasons for establishing, and the application of, certain rates. For instance, one map, Exhibit No. 3, was submitted for the purpose of showing that the average distance to Pittsburgh from points of origin accorded a rate of $1.26 per gross ton on lime products was 141. miles; that the average distance from points in the Altoona group to Pittsburgh is 138 miles, but the distance to Bellefonte is 164 miles. Other evidence, which need not be referred to in detail, was introduced i'n support of the carriers’ contention that it does not necessarily follow from the finding of the commission in January, 1928, that the rates were then unreasonable, and would be for the future, that they were also unreasonable in the past. In Centre County Lime Co. v. Commission, supra, some reference was made to the nature of the right accruing to a shipper required to pay an excessive rate and to the procedure provided by our Public Service Company Law for its enforcement. It is unnecessary to repeat what was there said; such shipper has a property right in the excess payment, recognized by and enforceable under the common law. Our statute, as stated by the commission, creates no new right in the shipper but merely requires him to institute his claim for reparation before it in the first instance. “But awarding reparation for the past and fixing rates for the future involve the determination of matters essentially different. One is in its nature private and the other public. One is made by the [Interstate Commerce] Commission in its quasi-judicial capacity to measure past injuries sustained by a private shipper ; the other, in its quasi-legislative capacity, to prevent future injury to the public”: Bear Bros. v. Denver and R. G. R. R., 233 U. S. 479, 486. We are not dealing with a case in which a public service company has recently made an increase in its rates which the commission has found to be unjustifiable. Most of the rates attacked were made up by combining the local rates of the Bellefonte Central from Lime Centre to Bellefonte with the rates of the other carriers from Bellefonte to the destination points. The commission did not fix rates on any specified commodities in dollars and cents but condemned the existing structure of the rates and prescribed a method for constructing them in the future which in its judgment would be jointly advantageous to the Bellefonte Central and to shippers on its line. We agree with the commission that “a rate may be unreasonable so that the commission in its legislative capacity may say that from now on the public interest will be better served by its reduction and at the same time reasonable to the extent that the collection of it has not amounted to an act of extortion or oppression on the part of the utility.” It seems to he a fairly well established common law principle that where rates have been put into effect in good faith and maintained without challenge for a considerable length of time, reparation cannot be recovered, even though they have been reduced by a competent tribunal, unless it is shown that they have been unreasonable to the point of extortion. The equitable powers of the courts in the protection of patrons of public utilities from the imposition of excessive charges were considered by our Supreme Court in Brymer et al. v. Butler Water Co., 179 Pa. 231, 250. It was there stated that the court had authority to say: “This charge is oppressive. You must decrease it. You are entitled to charge a price that will yield a fair compensation to you, but you must not be extortionate.” The use of the words “oppressive” and “extortionate” furnishes some indication of the common law conception of an unreasonable rate and we think that meaning still applies when ratepayers are seeking redress for alleged private wrongs inflicted in the past. When, however, the question is whether the rates attacked were unreasonable at the time of the complaint and would be for the future, it is apparent that our Public Service Company Law has modified the common law conception of “unreasonableness.” We are in accord with these excerpts from the report of the commission: “If the rate which has been imposed violates the common law standard it is ‘unreasonable' in the sense that that word is used in Article V, Section 5. But the same word in Article V, Section 3, which gives rise to the legislative function of the commission does not necessarily have the same connotation, since different elements and factors may enter into the determination of reasonableness in the two eases. The present record presents an apt illustration of this. When the commission undertook to fix rates for the future it was acting with reference to prospective conditions not definitely known but forecast to the best of its ability. There was evidence before it that lower rates would probably increase tonnage and. thereby create advantages to the carriers as against the disadvantage they would suffer by the reduction. The prior report indicates that this was taken into consideration. The evidence adduced by complainant itself in this proceeding indicates that such expectation was justified......In addition, certain rates of a railroad or group of railroads on a particular commodity or in a particular locality may be unreasonable in the legislative sense although there is nothing to show that such railroads have made, or are likely to make, a fair return on the property devoted by them to the public service. When in such circumstances, reductions of certain rates are required for the future, either the railroads or the commission is in a position to consider whether any modification of other rates may properly be made to offset possible losses from reductions. But as to traffic already moved, there is no possibility of stimulation and no opportunity for readjustment of other rates to make good the loss.” The Interstáte Commerce Commission, under a similar line of reasoning, refused reparation as to the interstate rates. Under the conclusion we have reached, the question raised by,appellant with respect to the period for which reparation may be claimed becomes academic and need not be considered in disposing of this appeal. Upon consideration of the entire record we are not convinced that appellant has met the burden, imposed upon it by the statute, of showing that the order appealed from is unreasonable in the light of all the evidence or contravenes any established principle of law. It therefore becomes our duty to dismiss the appeal and affirm the order. Order affirmed.

Opinion by Hoffman, J., In 1960, James Ross, appellant, was sentenced to imprisonment for larceny. This sentence followed a plea of guilty by appellant who was without the assistance of counsel at any stage of the proceedings. In 1965, appellant, again without counsel, filed a petition for writ of habeas corpus in the Court of Common Pleas of Crawford County. The petition was denied on January 21, 1965, without a hearing. The appeal from that denial is presently before us. The single question in this case is whether appellant effectively waived his constitutional right to counsel. The Commonwealth contends, and the lower court agreed, that appellant waived this constitutional right by signing the following prepared statement: “December 12, 1960 “The defendant in open court plead [s] guilty to the charge preferred in the within indictment, waives presentation thereof to' the Grand Jury, waives appoint ment of counsel, and consents to tlie pronouncement of sentence forthwith. (s) James Ross Record verified by: (s) Walter Johnson Clerk” This statement was stamped on the back of the indictment. Spaces were left open for the insertion of the date and the signatures of the defendant and the verifying clerk. The Commonwealth thus bases its contention solely on the express waiver contained in appellant’s signed statement. It has presented no other evidence relating to or establishing such waiver. Both the United States Supreme Court and the Pennsylvania Supreme Court have repeatedly stated that a waiver of counsel, to be effective, must be the understanding and intelligent act of the accused. In Von Moltke v. Gillies, 332 U. S. 708, 724, 68 S. Ct. 316, 323 (1948), the United States Supreme Court set forth the criteria by which the validity of a waiver of counsel may be determined: “To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understanding ly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” These standards were adopted by the Supreme Court of Pennsylvania in Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A. 2d 303, 305 (1964). After setting forth this procedure, the United States Supreme Court in Von Moltke then stated at p. 724: “This ease graphically illustrates that a mere routine inquiry — the ashing of several standard questions followed by the signing of a standard written waiver of counsel — may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of Ms right to counsel.” (Emphasis added) In the instant case, there has not been demonstrated even that “routine inquiry” which was present in the Von Molthe case. The signed statement does not indicate under what circumstances and with what understanding and awareness appellant waived counsel. Was he informed of his right to counsel and of the nature of the charges against him? Were any possible defenses or circumstances in mitigation of the charges explained to him? In short, we have no information which discloses whether appellant understandingly waived counsel after a sufficiently penetrating and comprehensive examination by the trial judge. It is clear to us that a signed statement alone cannot establish that a defendant waived this right understandingly and intelligently. It will be necessary for the lower court, therefore, to ascertain the circumstances under which the written waiver was obtained. Accordingly, the order of the Court of Common Pleas of Crawford County is reversed and the record is remanded to that court with direction to hold a hearing on the petition. Ervin, P. J., dissents. Johnson v. Zerbst, 304 U. S. 458, 468, 58 S. Ct. 1019, 1024 (1938) ; Carnley v. Cochran, 369 U. S. 506, 516, 82 S. Ct. 884, 890 (1962). Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-71, 202 A. 2d 303, 305-306 (1964) ; Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 525-527, 204 A. 2d 439, 444-445 (1964). See also Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 525-526, 204 A. 2d 439, 444 (1964) ; United States ex rel. McDonald v. Myers, 343 F. 2d 447 (3d Cir. 1965). The Commonwealth further contends that appellant failed to-allege in his petition that the waiver was not signed by him intelligently and understandingly. While not specifically alleged, this charge is implicit in appellant’s brief. Appellant makes reference to his own youth and inexperience. He further claims that when signing the statement he was not aware of his right to counsel or of the nature of the charges against him.

Opinion by Wright, P. J., On October 3, 1966, at 11:40 P.M., Allen P. Ange-licchio was apprehended for operating a Chevrolet sedan westbound on Route 30 near Greensburg at a speed of 80 miles per hour in a 60 mile-per-hour speed zone. On that date Angelicchio was seventeen years of age and was in possession of a junior operator’s license. His driving record disclosed a previous speeding violation on March 28, 1966, when he was sixteen years of age, for which offense he received a suspension of six months. An information was filed before a justice of the peace and, on November 17, 1966, Ange-licchio paid the fine and costs. On April 18, 1968, after hearing, the Secretary of Revenue suspended Angelicchio’s operating privilege for a period of four months. On September 6, 1968, the Court of Common Pleas of Westmoreland County reversed the action of the Secretary of Revenue, and directed that Angelic-chio’s operating privilege be restored. This appeal by the Commonwealth followed. The hearing judge reasoned that appellant “needed his driving license to enable him to work and earn his livelihood. There was no showing of adverse road conditions nor particularly heavy traffic at the time of his arrest. There was no recklessness involved in the conduct of the petitioner”. This appeal is controlled by our opinion filed this day in Lucchetti Motor Vehi cle Operator License Case, 213 Pa. Superior Ct. 397, 249 A. 2d 783. The order of the court below is reversed, and the order of the Secretary of Revenue is reinstated. Although Angeliechio’s offense occurred after the effective date (July 24, 1966) of the amendment to The Vehicle Code establishing the point system, the action of the Secretary of Revenue in ordering a suspension, rather than the assignment of points, was proper under the provisions of Section 604.1 (75 P.S. 604.1) which authorizes suspension of the driving privilege of a junior operator convicted of speeding or any other violation.

The opinion of the Court was delivered, by Black, C. J. The defendant was indicted for murder, and, being found guilty of murder of the second degree, was sentenced to undergo an imprisonment in the Eastern Penitentiary. On the trial in the Court of Oyer and Terminer, the prisoner pleaded that he had once before been in jeopardy of life for the same supposed offence, and that he had been acquitted. He set ■forth in his several pleas the particular facts as follows: — He had been arraigned before the same Court, on the same indictment, at a previous term, and pleaded not guilty. A jury was thereupon called; eleven jurors were chosen, and all the rest of the pannel challenged or set aside. A tales was awarded, but before the selection proceeded any farther, and before any of the jurors were sworn, the District Attorney claimed the right to challenge (for cause) one of those already chosen. The Court permitted the cause to be shown, and sustained the challenge. When the twelfth juror was called, the prisoner refused to take any part in the selection; and the Court, on the motion of the District Attorney, dismissed the jurors, and postponed the trial to the following term. To these pleas the Commonwealth replied that no one of the jurors had been sworn before they were dismissed; and, therefore, the prisoner was not acquitted or in jeopardy. To which replication the prisoner demurred. The judgment of the Court on the demurrer, was against the prisoner, who, when called on to plead over, stood mute. The plea of not guilty was put in for him, and the trial proceeded with the result already mentioned. If it can be legally said of the prisoner, that the proceedings at the first term after the indictment was found placed him in jeopardy, the subsequent conviction was wrong and should be reversed. Neither the constitution nor the , rules of the common law will permit a man to be twice tried for the same offence. It seems unnecessary to say that the mere continuance of a cause is within the discretion of the Court. Refusing it to a prisoner when he gives good reasons for it, or granting it to the Commonwealth without any reason at all, is neither a defence to the accused party when he comes to be tried, nor a legal assignment of error in this Court. But a discharge of the jury, in a capital case, after the trial has begun, is not a continuance of the cause. It is the end of it. And for all purposes of future protection, it is the same to the prisoner as an acquittal, unless it was done with his own consent or demanded by some overwhelming necessity: such, for instance, as the sickness or death of a juror. When-does the trial begin? Not properly until the jury is charged with the prisoner. But the practice of formally charging the jury is not generally observed in the Courts of this, state,-and ■we cannot refuse to a party any of the rights which ho would otherwise have, merely because a form is omitted by the public officers. We must, therefore, hold that the jury has the prisoner in charge, when a full jury is empannelled, and all the jurors are sworn. Previous to this, everything that is done is merely preliminary, and up to this point the Court may postpone the trial as lawfully at one stage of the proceedings as at another. To place a man in jeopardy, he must be in peril from the verdict of a particular jury. He cannot be so by the calling of eleven, for they can give no verdict, nor is he endangered by twelve unless they are sworn. Until they have taken the oath they are not jurors, and have no more control of his fate than any other equal number of citizens. His trial cannot begin until the tribunal which is to try him is organized and qualified. If he is in jeopardy at any earlier period, he is in jeopardy from the hour when the first informal accusation was made, and at every step of the subsequent proceedings against him. To say this, would be to assert what no ingenuity can reconcile with either authority or reason. The prisoner’s counsel cite The Commonwealth v. Clue, 3 Rawle 498, and rely much on a dictum of Chief Justice Gribson, who says: “In the legal as well as the popular sense, he (the prisoner) is in jeopardy the moment he is called to stand on his defence, for from that moment every movement of the Commonwealth is an attack upon his life.” I call this a dictum, because the question before the Court was, whether a prisoner was in jeopardy whose jury had been discharged without giving a verdict after they were sworn. It was decided in the affirmative, and the case is authority for nothing more. But allowing this expression all the weight to which it would be entitled if it were on the point in controversy, what does it come to ? At what moment of time is the prisoner called to stand on his defence ? Certainly not until the Commonwealth is ready to begin the assault. The judge was using a figure borrowed from the battel; and the phrase “jeopardy of life or limb” was also used originally with reference to that mode of trial. In judicial combat, the parties took their attitudes of attack and defence when the judg'es were set, and, all preliminaries being adjusted, the actual conflict was ordered to commence. If this analogy has anything in it worth noticing, it is against the plaintiff in error. This decides the whole cause. Our duty is done when we determine whether the facts pleaded amount to a defence. But the challenge of a juror after the District Attorney had waived his right, is complained of by the prisoner’s counsel as a grievous wrong, while the District Attorney asserts, with equal confidence, that it is a great right. Both have argued it fully, and asked us to give' our opinion. We will do so. The right of the Commonwealth and that of the prisoner to challenge for cause stand upon the same ground. One is as sacred as the other. It cannot be exercised after the juror has lifted up his right hand, or taken the book in obedience to the directions of the officer, or after the formula of the affirmation has been commenced. In some of the states it is held that the juror is not beyond the reach of a challenge even when he is sworn. These decisions are not supported by reasons satisfactory to us, and are opposed by certain principles which are well settled here. But the mere passing of the juror over to the Court or the other party, is not an absolute waiver of the right to challenge, if good cause be shown afterwards. This powrer to challenge for cause at any time before the oath is tendered might be abused. If the objection to a juror be kept back at the regular time for an improper reason, or from motives of mere caprice, it would be just enough to' declare the ■ right wholly waived, and the discretionary power to do so ought not to be denied. But instances of such bad faith are likely to be very rare; and submitting a cause to the determination of one who is known beforehand to be partial, corrupt, or incompetent, is so revolting to every sense of right, that no Court can do it without making a struggle to prevent it. When it is proved against a juror by his own admission that he grossly misbehaved himself on a former occasion, declaring that he had tried to acquit every one whom the judge desired to convict, and would as lief swear on a spelling book as a Bible, because he was a Tom Paine man, we can see nothing wrong in sustaining the challenge. It would destroy all confidence in the administration of justice if the most important criminal causes should have to be submitted to men who avow themselves reckless of both human and divine laws. There is no stress of necessity which drives us to that: there is still a sufficient number of “ good, true, honest, and lawful men” for jurors. When a witness is objected to for defect of religious principle, the rule is to let hirq speak for himself, and if he professes faith enough to give a religious sanction to his oath, his testimony is taken. The courts incline against the total exclusion of evidence oil such grounds, because it seals up what is perhaps the only source of information. The choice is very often between a doubtful witness and none. It is, therefore, safer to let the objection go to his credit. But there are no such reasons for tenderness in the case of a juror, where the worst consequence that results from his rejection, is that his place will be filled by a better man. To be sure a juror, like every other person publicly assailed, ought to be heard in vindication of his character, and I suppose an appeal to the Court on that ground would hardly ever be made in vain. But in this case the Court decided after hearing all that was offered. And they decided rightly. Judgment affirmed.

Opinion by Mr. Justice Drew, Plaintiff was injured by an automobile owned by Anna Brobst and operated by her daughter, Margaret. Separate suits were brought, against the daughter for her alleged negligence, and against the mother on the ground that the daughter was her servant. From the verdicts and judgments in plaintiff’s favor, defendants have appealed. The accident occurred while plaintiff was attempting to cross Lloyd Street, at the intersection of Main Street, in Shenandoah, Schuylkill County. According to her own uncontradicted testimony, she was walking southwardly on the western side of Main Street, and, having waited on the curb for the traffic signal to change, started across Lloyd Street when the light was green in her favor. She testified: “I took one step with my right foot down off the curb, and put my left foot out to make another one when I was struck.” The right front wheel of the car ran over the instep of her left foot, and when she first began to realize what had occurred she found herself leaning against the car between the two wheels on the right side, the car having stopped in the meantime. Plaintiff testified further that she looked both ways before starting to cross and saw no machines approaching, that she would have seen the car if it had been coming across the street, that she also looked to see whether anything was coming around the corner, and that she did not know from what direction the car came. Miss Brobst’s testimony was to the effect that she was going west on Lloyd Street, that when she entered the intersection the traffic light was green in her favor, that she did not notice plaintiff until the latter came in contact with the car, and that when the car stopped plaintiff was alongside the right front fender. It appeared from other testimony that the width of Main Street was about fifty feet and that each of its sidewalks was about fifteen feet wide. It is unnecessary to consider whether the evidence was sufficient to sustain the finding of negligence in the operation of the car, since we are of opinion that plaintiff was contributorily negligent as a matter of law. Undisputed testimony discloses that the car was approaching on Lloyd Street from the eastern side of Main Street, that plaintiff was not struck by the front of the car but that her foot was run over by its wheel,' and that the accident occurred just as plaintiff was making her second step from the curb and was no more than two or three feet from it. Since the car was stopped before its rear wheel passed over her foot, it could not have been going very fast (see Wolf v. P. R. T. Co., 252 Pa. 448; Watson v. Lit Bros., 288 Pa. 175); and, in view of that fact and of.the fact that the accident happened so soon after plaintiff left the curb, the car must have been close at hand when she stepped down. The accident occurred about one o’clock in the afternoon of a dry day, and it is not claimed that plaintiff’s vision was in any way obscured. Under these circumstances, plaintiff must inevitably have seen the car if she had looked, and if she saw nothing she could not have been looking. As we have repeatedly pointed out, it is vain for a person to say he looked when, in spite of what his eyes must have told him, he moved into the path of an approaching car or train by which he was immediately struck: Carroll v. P. R. R. Co., 12 W. N. C. 348; Marland v. R. R. Co., 123 Pa. 487; Holden v. P. R. R. Co., 169 Pa. 1; Barton v. Lehigh Val. Transit Co., 283 Pa. 577; Sinnig v. Pgh. Rys. Co., 316 Pa. 328; Schulte v. Yellow Cab Co., 104 Pa. Superior Ct. 130; Taylor v. Phila. Rural Transit Co., 111 Pa. Superior Ct. 575. That plaintiff was under a duty to look before crossing cannot be doubted. The duty to look rests at all times upon everyone in the use of streets (Kauffman v. Nelson, 225 Pa. 174; Alexander v. Am. Express Co., 258 Pa. 378), and where one steps into a busy street and is immediately struck by a passing vehicle which he could have seen had he looked, he is barred by his own negligence: Harris v. Commercial Ice Co., 153 Pa. 278; Weaver v. Pickering, 279 Pa. 214; Goff v. College Hill Boro., 299 Pa. 343; Halpert v. Earnshaw, 304 Pa. 95. Nor did the fact that plaintiff was given permission to cross by the traffic signal relieve her of the duty to look: Halpert v. Earnshaw, supra; Schroeder v. Pgh. Rys. Co., 311 Pa. 398. She was bound to be on her guard at least against vehicles already within the intersection when the light changed, and in fact the Brobst car may well have been in that situation. Miss Brobst’s testimony that the light was green in her favor when she entered the intersection was uncontradicted except inferentially by plaintiff’s testimony. The fact that the light was green in plaintiff’s favor when she stepped from the curb is not of itself sufficient to show that it was against Miss Brobst when she entered the intersection (Jones v. Pgh. Rys. Co., 312 Pa. 450), and, in view of the fact that plaintiff was struck immediately after she stepped down and that the car was instantly stopped, it is altogether likely that it was within the intersection when the light changed. If such was the case, it was entitled to move out of the intersection in the direc tion in which it was going, and plaintiff should have been on her guard against it. In any case, however, plaintiff was under a duty to look before stepping into the street, and since the “incontrovertible physical facts” show that the car was almost upon her when she stepped from the curb and that she would certainly have seen it if she had looked, it is plain that she must have failed to look. Her own negligence therefore bars her recovery. Plaintiff relies on Rosenthal v. Phila. Phonograph Co., 274 Pa. 236, and Villiger v. Yellow Cab Co., 309 Pa. 213, in support of her contention that the question of contributory negligence was for the jury. In the Rosenthal case, however, the pedestrian had advanced three steps from the curb and was then injured by a truck which came around the corner. Under the circumstances in that case, it was quite possible for him to have looked carefully and failed to see the truck when he left the curb, and it was clearly for the jury to decide whether he had or not. Similarly, in the Villiger case, as well as in Newman v. Protective Motor Service Co., 298 Pa. 509, the accident occurred when the pedestrian had reached a point beyond the middle of the street, and under the facts in each of those cases he might have looked and seen no danger before undertaking to cross. It need hardly be pointed out that a situation in which the danger arises after the pedestrian has committed himself to the crossing is not parallel to one in which it exists before the crossing is begun. Plainly, those cases are not similar to the present case. The court below, without consideration of the merits, entered pro forma an order overruling defendants’ motions for a new trial and for judgment n. o. v., on the ground that its rules of court were violated in that no one appeared for defendants on the day when argument on the motions was called and no brief of argument in support of the motions was filed. The rules provided that “If the party maintaining the affirmative of any issue or cause is not ready to proceed or fails or neglects to fur nish to the judge or judges, as the case may be, a written brief of argument, as hereinafter prescribed, at the time the case is called for, and before, argument, the rule, motion, exceptions, or other matter or thing contended for, shall be deemed abandoned or withdrawn, and an adverse order or decree must then be entered pro forma in favor of the opposing party.” It is, of course, essential that orderly procedure be maintained in the conduct of litigation and that rules of court designed for that purpose be scrupulously followed. Nor have we any doubt that the rules applied in the instant case were entirely reasonable. Such rules, however, are intended solely for the purpose of governing procedure in the lower courts, and cannot be binding upon us in the consideration of an appeal. We do not approve the conduct of defendants’ counsel in not moving to open the judgment and thus giving the court below an opportunity to pass upon the case on its merits. But it would be impossible for us to do justice by affirming the pro forma dismissal by the court below of defendants’ motions, when a consideration of the merits shows that plaintiff is clearly not entitled to recover. The record discloses that defendants at the trial duly presented points requesting binding instructions and, after the verdicts were returned, promptly moved for judgment n. o. v. and for transcription of the evidence. They are therefore entitled, under section 1 of the Act of April 22,1905, P. L. 286, to judgment n. o. v., if such judgment is “warranted by the evidence.” Since we are of opinion that such judgment is warranted by the evidence, it must be so entered. The judgments of the court below are reversed and judgment is here entered for defendants.

Opinion by Mr. Justice Roberts, Joseph Y. Restifo (erroneously named “John” in this appeal) and his wife Eleanor instituted an action of trespass on behalf of themselves and their minor children against the Estate of William McDonald, appellant, for personal injuries and property damages sustained in an automobile accident on August 20, 1963. McDonald’s administratrix filed an answer and new matter joining the co-plaintiff, Eleanor Restifo, appellee, as an additional defendant with respect to the claims of her minor children on the theory that she was solely liable to the plaintiffs or liable for contribution. 2In her reply, the appellee pleaded a written release given her by McDonald in return for $450. The court below sustained appellee’s motion for judgment on the pleadings and this appeal followed. In support of her position, Mrs. Restifo relies principally upon Polley v. Atlantic Refining Co., 417 Pa. 549, 207 A. 2d 900 (1965), where this Court on the authority of Killian v. Catanese, 375 Pa. 593, 101 A. 2d 379 (1954), held that when A obtains a general release from B, B cannot join A as an additional defendant in a subsequent suit, arising out of the same cause of action, instituted against B by C. We agree with Mrs. Restifo that unless, as requested by the appellant, these cases are overruled, the judgment of the trial court must be affirmed. The release in the instant case, which was almost identical with the releases involved in Polley v. Atlantic Refining Co., supra, and Rimpa v. Bell, 413 Pa. 274, 196 A. 2d 738 (1964), stated: “Know All Men by These Presents, that I, William McDonald, 6411 North 21st Street, Philadelphia, Pa., for the sole consideration of Four Hundred fifty and no/100 ($450.00) dollars to me in hand paid by Joseph Y. Restiro and Eleanor Restifo, of 6600 Ardleigh Street, Philadelphia, 19, Pa., the receipt whereof is hereby acknowledged, have released and discharged and by these presents, do for myself, my heirs, executors, administrators, successors and assigns release and forever discharge Joseph V. Restifo and Eleanor Restifo of and from all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature for or because of any matter or thing done, omitted or suffered to be done by said Joseph Y. Restifo and Eleanor Restifo prior to and including the date hereof, and particularly on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 20th day of August, 1963 at or about 6:30 P.M. at or near the intersection of Briar Road and Washington Lane, Philadelphia, Pa.” Conceivably, as the Court did in the Killian-Polley line of cases, one could read this document as encompassing the right to seek contribution. However, our considered re-evaluation compels the conclusion that not only was the rationale of these cases unsound but that they are also incompatible with the rules of con struction governing releases. Therefore, to the extent that these cases are inconsistent with this opinion they are hereby overruled. A long line of Pennsylvania cases has held that a release covers only those matters which may be fairly said to have been within the contemplation of the parties when the release was given, See, e.g., Wenger v. Ziegler, 424 Pa. 268, 226 A. 2d 653 (1967); Brill’s Estate, 337 Pa. 525, 12 A. 2d 50 (1940); Flaccus v. Wood, 260 Pa. 161, 103 Atl. 549 (1918); Shepley v. Lytle, 6 Watts 500 (1837); General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 199 A. 2d 540 (1964); Cockcroft v. Metropolitan Life Ins. Co., 125 Pa. Superior Ct. 293, 189 Atl. 687 (1937). Accordingly, the general words of the release will not be construed so as to bar the enforcement of a claim which has not accrued at the date of the release. See Henry Shenh Co. v. Erie, 352 Pa. 481, 43 A. 2d 99 (1945); Zurich General Acc. & Liab. Ins. Co. v. Klein, 181 Pa. Superior Ct. 48, 55-56, 121 A. 2d 893, 896 (1956). Cady v. Mitchell, 208 Pa. Superior Ct. 16, 220 A. 2d 373 (1966), is a recent illustration of the rule mandating strict construction of a release so as to avoid the ever present possibility that the releasor may be overreached. Cf. Wenger v. Ziegler, supra; Henry Shenk Co. v. Erie, supra; compare Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 100, 204 A. 2d 451, 453 (1964). In Cady, plaintiffs had given the defendant a general release for all claims arising out of an automobile accident, including “all unknown, unforeseen, unanticipated, and unsuspected injuries.” The release was signed nine days after the accident; the consideration for it being the lowest estimate received by the plaintiffs for the repair of their automobile. At the time the release was executed neither party suspected that Mrs. Cady had suffered any bodily injury; indeed defendant’s insurance adjuster testified that he had included Mrs. Cady in the release only as an extra precaution. Subsequently, Mrs. Cady developed symptoms which indicated that she had sustained bodily injuries in the accident. Although viewing the release as prima facie evidence of payment and settlement, nevertheless, the Superior Court, speaking through Judge Montgomery, sustained, without dissent, the jury’s action in voiding the release. The court held, in accord with the rule in a majority of sister jurisdictions, that since neither party contemplated personal injuries on the part of Mrs. Cady, the release could not be construed to cover them: “The circumstances, including the details as to when, where and how the releases were secured, and the inadequacy of the consideration, [Avere] all matters reflecting on the meeting of the minds of the parties and collectively support the jury’s action.” 208 Pa. Superior Ct. at 21, 220 A. 2d at 375. In a similar vein it would be illogical to assume that, with respect to the right of contribution, there was a meeting of the minds in the instant ease. The releasing party, unless he is a lawyer, is unlikely to be cognizant of this potential right, a right which in any event does not accrue until after an action has been instituted against the releasor by a third party. (It is worth noting that if the additional defendant were sued by the third party, he could seek contribution from the joint tortfeasor. ) Instead the releasing party is most apt to regard the release as a contract which constitutes the successful settlement of his claim against the releasee. Perhaps the most troublesome aspect of the Killian-Polley cases is that they actually encourage fraud and deception. For example, consider the following hypothetical: P, a close friend of D-2 and a passenger in his car, is injured through the joint negligence of D-2 and D-l. In the same automobile accident D-l’s car is slightly damaged. If P waits until D-2, or his insurance company, buys a release from D-l before instituting a lawsuit, he may be able to obtain full recovery from D-l and keep D-2’s friendship. In some instances D-2 might even purchase P’s patience; at least in many cases, such as the instant one, P and D-2 are apt to have a common interest so that these tactics will work to their mutual benefit. Our opinion in this case, of course, does not prevent the parties from contracting for the release of the right to seek contribution in the event of a lawsuit by a third party, for “it is well settled that where the terms of a release and the facts and circumstances existing at the time of its execution indicate the parties had in mind a general settlement of accounts, the release will be given effect according to its terms.” Brill’s Estate, 337 Pa. 525, 528, 12 A. 2d 50, 52 (1940). All we hold is that in the circumstances of the instant case such a contract must show that a release of the right to seek contribution was bargained for and within the parties’ contemplation. Properly construed the release involved in the instant litigation merely prohibits recovery on an action which originates with the releasor. Judgment reversed and record remanded for proceedings not inconsistent with this opinion. Pennsylvania’s intrafamily immunity doctrine would prevent plaintiffs from obtaining- a judgment against Mrs. Restifo; nevertheless, she would remain liable to the appellant for contribution if she were found to be a joint tortfeasor. See Puller v. Puller, 380 Pa. 219, 110 A. 2d 175 (1955); Fisher v. Diehl, 156 Pa. Superior Ct. 476, 40 A. 2d 912 (1945); see generally, Note, 52 Cornell L.Q. 407 (1967). The writer of this opinion has expressed his own disagreement with the intrafamily immunity doctrine in Daly v. Buterbaugh, 416 Pa. 523 537, 207 A. 2d 412, 418 (1964) (dissenting opinion). Only three members of the Court joined the Polley opinion; two members concurred in the result and two dissented. See also Rimpa v. Bell, 413 Pa. 274, 196 A. 2d 738 (1964); Moyer v. Independent Oil Co., Inc., 401 Pa. 335, 164 A. 2d 552 (1960); Mayer v. Knopf, 396 Pa. 312, 152 A. 2d 482 (1959). But see, Kent v. Fair, 392 Pa. 272, 140 A. 2d 445 (1958); Davis v. Miller, 385 Pa. 348, 123 A. 2d 422 (1956). Killian itself is critically reviewed in 27 Temple L.Q. 515 (1954). 208 Pa. Superior Ct. at 19-20, 220 A. 2d at 374-75; see Annot., 71 A.L.R. 2d 82 (1960). For an approving comment on tibe court’s approach in Cady, see 28 U. Pitt. L. Rev. 109 (1966). See cases cited supra, p. 9. Uniform Contribution Among Tortfeasors Act, Act of July 19, 1951, P. L. 1130, 12 P.S. §2082 et seq. (Supp. 1966). If the releasor is insured, his insurance company, which is not a party to the release, will under the Killian-Polley cases be denied its right of subrogation against the joint tortfeasor.

The opinion of the court was delivered by Duncan, J This question respects the validity of a sale oí certain goods by Benjamin Pusey to his sister-in-law Elizabeth Clemson, plaintiff below, defendant in error, who claims them against a levy made by the plaintiff in error, the sheriff of Chester' county on an execution of Joseph Boyd, against Benjamin Puseip subsequent to the date of the sale, but on a judgment previously obtained. After a judgment has been obtained, a conveyance by the defendant of his- goods and chattels, has always been looked on as wearing a deep complexion of fraud, and as subjecting to a very jealous examination, the conduct both of alienor and alienee, and such acts are void both at common law, and under the statute of Elizabeth, if done without consideration, or, though given on due' consideration, if the possession remain with the debtor; whereby he is enabled to deceive the world by holding out a false appearance of property, and that was Twynes’ case, 3 Rep. 85. The issue between the parties was, whether the assignment by Pusey to Miss Clemson, was valid, or was fraudulent according to the policy of the law. We are not discussing a question of contract executed or executory between the parties to the contract, but whether according to that policy, there was a contract 'binding on Boyd the judgment creditor; and Our attention is first called to the written instrument of the 31st December; 1821, denominated in the bill of exceptions, a bill of sale. There was no doubt but that two articles, the lime and the geese, were interlined after the instrument was signed, and witnessed; and delivered, and without any assent by Pusey, or subsequent ratification, and done by the assignee, who claimed the lime under the bill of sale, after it had been levied on by the sheriff; though it is not now claimed, or suit brought for it. Now, was the paper evidence to go to the jury; of the contract between Pusey and Miss Clenisonl It is not, whether the original contract was avoided by the falsification of the evidence of it; but whether, where a party to a written instrument wilfully alters it, for the purpose of covering property from execution, that instrument so altered, can be used as a medium of evidence. It is not an alteration by a stranger, nor an immaterial one. by the party, nor a question of interlineation to be left to a jury to decide, whether made before or after the signature, but where the plaintiff offering it makes it part of her own case, that it was wilfully done for her. The defendant, after the delivery, told the debtor’s wife, there were two or three things forgot, and desired her to set them down, which she did, and being afterwards informed, this was improper, the plaintiff said she would erase them. Formerly, the judges, if a deed was rased or interlined, declared it to be void; but in modern times, it is referred to' the jury. But where it is part of the plaintiff’s own case, that the deed was altered, fraudulently altered, as I understand the principles of the law of evidence, such altered or falsified paper Cannot be received in evidence. For when the assignee added to it, it was a new making, and framing the contract, or the evidence of it, and it is quite immaterial, whether the action is founded on the written evidence, or it is exhibited as evidence of the contract. An interest that would pass without deed, would pass though the deed was afterwards interlined, or altered; for the interest thereby vested doefe not return back again, for the deed is only evidence that it did pass, but by statute it is necessary in many cases, to show the writing under the hand of the party, and where such writing is necessary to support the claim, the party claiming must make it out by the very perfect and unaltered writing on which the contract was founded; otherwise, where such writing is considered not as a formal instrument, under which title passes, but as mere general proof of an agreement. 2 Roll. ab. 29. In Lofft’s Gilb. 650, in the ease of the altered deed, it is put on the rational ground, that the rasure does not destroy the estate, though it destroys the deed. Cro. Car. 399. The ease cited from Massachusetts can only be supported on this principle. There the exception was not to the evidence, but whether the alteration revested the estate; and one ground of the decision was, that the alteration was done innocently, and tono injurious purpose. ■ The law of evidence rests on principles, and has accommodated, and is accommodating itself to the changing state of society. We do not now, said lord Mansfield, sit here to take our rules of evidence from Siderfin and Keble. Anciently almost all writings were by deed, and it was doubted down to the King v. Ward, 13 G. 1, 2 Ld. Ray. 1464. 2 Stra. 147, whether a forgery could be committed of any other writing than a deed, will, or record, and there the forgery of a mere informal order respecting a credit for a quantity of allum, was determined to be indictable at common law as a forgery; because the nature of the offence was the same, et ubi eadem est ratio, eadem est leg. The fraudulent alteration of this paper, give it what denomination you will, is a forgery punishable at common law. There is no magic in a name. Be it a receipt, a bill of sale, assignment, written agreement; call it what you will, it is a writing, the fraudulent alteration of which is a forgery, falling within the exact definition of the officer. I by no means intend to consider those ladies as criminals, or arraign them as culprits on the charge of forgery. Their conduct has every thing to palliate it. No doubt, they never imagined they were committing an act of moral turpitude. The very candid and simple relation of Mrs. Pusey acquits them of all that. They thought it no more harm to mend this instrument, than to mend a ruffle. But courtesy to the sex, indulgence to their habits and course of life, mingling little in affairs of this kind, and the real simplicity which marks this alteration must not make us forget the civil rights of others; and though we may acquit them of crime, yet it does not follow that any aid should' be derived from the paper. It is not an unreasonable infliction to say, though the alteration of this paper does not destroy the sale, does not depriveyou of an opportunity of proving the sale aliunde, yet having falsified, you have destroyed It, you have suffocated it. For venial as it may be in foro conscientise, it is so far fraudulent, that it ceases to exist for any legal purit is of all credit. we it the mild appellation of pious fraud, still it is, by the policy of the law, fraudulent, and attended with all the noxious and vitiating qualities of fraud, as it is said of the juramentum scriptum est indivisibile, et non est admittendum in parte verum et in parte falsum; falsum in uno, falsum in omnibus. You shall not recover through the medium of a falsified paper. Prove an honest case in any other way than by a dishonest paper. This, I think, may be done, laying aside the paper; for where there is a subscribing witness to a receipt, whom you cannot produce, other evidence may be given of payment by witnesses. Haine v. Hechert, 6 Binn. 16. So here, the fact of sale may be proved by other witnesses. If the subscribing witnesses were dead, proving their hand-writing, the falsified instrument would be evidence of the sale of the lime. This would be a consequence and amost unjust one. All written contracts, whether by deed or not, are intended to be standing evidence against the parties entering into them, and so much of the business of the world depends on this kind of evidence, that it should be fortified by every legal sanction, and therefore it is, that all instruments altered in a material part are thereby avoided. There is a most beneficial effect resulting from this, that persons having the custody of these will not alter them for fear of losing their security, and the reason applies as well to instruments, intended as standing evidences of the contract, as instruments which are depended on as the sole security; and the true reason is, that it would be extremely dangerous to permit the party to recover by the medium of written evidence as it originally stood, after an attempt to commit a fraud by covering property from execution not included in the written contract. The policy ofthelawis, thataman, (nor woman either,) shall not take the chance of committing a fraud, and when the fraud is detected, use the instrument, as if he never had altered it. In that case the law intervenes and avoids the falsified instrument or writing. If it avoids it, it does not do so partially, but for every legal purpose, and in reason there can be no difference, whether it is made use of as an instrument of title, or evidence of it; both are within the same reason, and ought to be within the same law. I have not been able to find a decision in specie the same, but in reason, and by analogy to the principles of evidence, it appears to me clear as any axiom in law, that the writing is defunct, and ought not to have been received in evidence, and I think also the evidence of Kinsey as to Peter, (whom Mr. Pusey testified, Miss Clemson had hired to take care of the cattle, &e.) ought to have been received. It was evidence in an important'point, to prove the possession of 'Miss Clemson, by means of the hiring of Peter, but the question respected the actual, visible, notorious possession. It then became undoubted and very important evidence to show how the matter really was, to prove that while Peter was employed; he and Pusey both declared that he was the hireling of Pusey; and when the question was put from what source you had knowledge, the court took the witness out of the hands of the counsel, and put certain prefatory questions, and restrained the witness from giving any evidence of any conversation between Peter and Pusey as to a hiring, unless it was in the presence of Miss Clemson, or proof of an original hiring. This-was not mere hearsay evidence; it was the best evidence the nature of the thing was capable of; the declaration of the master, and of the servant at the time they were employed about the property. It was not to charge Miss Clemson, nor to destroy a contract by a conversation between others; but the declaration of persons in possession, in what character they were in possession. It was the ?'esgesta itself. It was very proof of actual possession in Pusey. It destroyed the colourable possession of Miss Clemson by means of Peter, and showed the reality of the possession to be Pusey’s. Peter had before been in the employment of Pusey in the same way; he continued to act under his orders, was acting under his orders at the very time the witness spoke of. It was much stronger evidence to show the unaltered course of possession in Pusey than the evidence by Mrs. Pusey of a hiring by Miss Clemson was to show Ihe contrary. The declaration of a tenant in possession is constantly received, as to whom he held under; not as evidence of title, but as evidence of possession, and the character of the possession. I am, therefore, of opinion, that the witness should have been suffered to prove the conversation between Pusey and Peter about the hiring, and that he was then acting as the servant of Pusey. The points on which the instruction of the court was requested by the defendant in error, are not stated with precision. These are more abstract questions of law, than predicated on any statement of the facts given in evidence. This is always wrong, nor was the court bound to answer them in that form. The answer to the first point was correct. It was not necessary that the paper should be delivered to the assignee in the presence of the subscribing witnesses. It was not a deed taking effect from delivery. The witnesses do not state it as a deed delivered in their presence. She had possession of it by the delivery of Pusey. The 2d was an abstract proposition which the court properly answered in the affirmative. Had the question been put to the court in this form, whether the possession, as proved by the defendant was sufficient to vest property in Miss Clemson, against the creditors of B. Pusey, the answer should have been, I apprehend, that it was not. There was no contested fact to be submitted to the jury; nothing from which a continued legal possession could be inferred. There was no real change of possession. Every thing continued in the same state occupied and used in the same way, and by the same persons, after as before the sale. Miss Clemson was an inmate in the house before: she continued so after the sale. Peter was a hireling in the family before, he continued so after. All things remained in statu quo. No one coming to deal with Pusey could possibly discern any alteration. Every act of ownership which the the property was susceptible of, went on in the old way. The possession of Peter was entirely colourable. He just did as he had done before; acted by order and under the direction of Pusey. The sale was inconsistent with a continuing possession in Pusey. An absolute unconditional assignment of goods, the former owner continuing in possession of them, is not barely evidence of fraud, but it is fraud itself, unless where the possession is consistent with some condition or trust expressed in tire assignment, and unless the court are prepared to unsay and to unsettle all that was said and settled in Clow v. Woods, 5 Serg. fy Rawle, 275, this transaction was fraudulent and void as to creditors. That case was very fully argued, and the judgment given on much deliberation We adopted no new principle, set up no new doctrine, but allowed a stream of authority, which established the law, that an unconditional sale, where the possession does not accompany and follow the assignment, is, with respect to creditors, on a sound construction of the statute of Elizabeth, a fraud, and should be so declared by the court. I now speak of things capable of delivery. There cannot be a concurrent possession in the assignor and assignee; it must be exclusive, or it is deemed colourable and fraudulent. To defeat the execution, there must have been a bona fide substantial change of possession. It is mere mockery to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colourable. I do not put the case on the ground of actual fraud and want of consideration. I presume the debt of Miss Clemson to be a just one, which her brother-in-law ought in moral duty to have secured, and in point of honour to have preferred. But on the policy of the law, looking to general consequences, without turning to the right or to the left, as particular cases of hardships may occur, the plaintiff’s own case showed a visible possession to all the world, remaining in the debtor, just as it did before the assignment. There was no weighing of evidence, no inferential circumstances, nothing from which a jury could draw a different conclusion. The court erred in the answer to the 3d proposition of the defendant in error, as I have before stated. The alteration rendered the writing null and void to all purposes. Master v. Miller, 4 T. R. 424, was adopted by this court in the Bank of the U. States v. Russel & Boone, 3 Yeates, 391, and there it was determined, that the alteration of a promissory note by the payee, whereby the time of payment was retarded, avoided the note in the hand of an innocent indorsee. The 4th specified error does not appear on the record, and the court will not review evidence of a fact to reverse a judgment. The declaration lays the cause of action as between the teste and return of the writ. The day when the writ issued is no part of the record. The memorandum of the day when the writ was taken out on the issuing docket, might be evidence of the fact in a case requiring proof; as of the day when a writ issued to save the statute of limitations, on a replication of assumpsit infra sex annos; or it might be shown on the trial as evidence that the defendant had shown a cause of action subsequent to its commencement when the jury would be directed, to find against plaintiff, or he become non-suit. Though in the formal making up of a record, the date of the time of actually issuing process is never inserted, because it is no part of the record, and the prsecipe is not, to this purpose, a part of the record, courts will use it to advance justice by amending writs agreeably to the prsecipe, but never to defeat a judgment. But this very point was settled in the court of errors and appeals. Skinner v. Robeson. And the verdict would cure it, for it could not be found for the plaintiff but on evidence of a causé of action, a taking before the action brought. 4 Mass. 264. But for the other caus e, the judgment is reversed, and a venire facias de novo awarded. Judgment reversed, and a venire facias de novo awarded.

Opinion by Judge Mencer, On May 4, 1970, on Route 56 in Cambria County, Anthony Michael Abraham (appellee) was apprehended for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 P.S. §1037, and, after being so charged, refused to submit to a breathalyzer test as provided in the so-called “Implied Consent Law,” Section 624.1(a), of the Code, 75 P.S. §624.1 (a). Having received a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellee’s operator’s license for six months, effective June 12, 1970. The Court of Common Pleas of Cambria County, after granting a supersedeas on June 11, 1970 (appellee’s license was restored June 19, 1970), sustained appellee’s appeal and reversed the Secretary’s suspension. The Commonwealth has appealed to this Court. On September 21, 1970, the lower court, in a separate appeal, found appellee not guilty of operating under the influence of intoxicating liquor. The court therefore reasoned, in the suspension appeal, that where the court finds as a fact that the operator was not driving while under the influence of intoxicating liquor then the operator cannot be “found guilty” of refusing to undergo a breathalyzer test. This is clearly incorrect reasoning. Despite the fact that the charge against appellee was dismissed, there remains the separate refusal to take the test. For the simple reason that the suspension was a civil proceeding, and the acquittal was a result of a criminal proceeding, the Secretary acted properly. Accord, Appeal of Walker, 20 Ches. Co. Rep. 154 (1972). As stated in Annot., 96 A.L.R. 2d 612, 614 (1964), “However, where those circumstances which were the basis of the revocation or suspension were also the basis of charges in a previous criminal case, it might seem to the layman driver that the state has been allowed to try him twice for the same offense, and his notions of fair play might be injured all the more where the previous criminal prosecution resulted in a determination that he was 'not guilty.’ Notwithstanding the notions of fair play entertained by laymen, however, what little authority there is on the subject holds that the later proceeding to revoke or suspend his license, since not intended as a punishment of the driver but designed solely for the protection of the public in the use of the highways, does not in the legal sense subject him to double jeopardy or punishment, nor is a judgment of acquittal in the previous criminal case res judicata on the issue of guilt or innocence in the later proceeding, for, as stated by [Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936)], such judgment does not have any probative value in the subsequent proceeding beyond the mere fact of its rendition, the reason for this being found in the nature of the criminal proceedings and the type of proof required therein, for in a criminal proceeding the guilt of the accused must be established beyond a reasonable doubt, whereas in a civil proceeding to revoke a license it is sufficient if the offense is established by a preponderance of the evidence.” It is not disputed that appellee was not warned that his refusal to take the test might result in a suspension of his license. The lower court gave as a further reason for overturning the Secretary’s suspension that appellee had a right to be so informed. We must conclude that the lower court erred in its conclusion. “The underlying rationale of an implied consent statute is that a person has only a privilege granted by the state to operate a motor vehicle upon public highways, not an absolute property right. The Pennsylvania courts have consistently held that the motor vehicle operator’s license is a mere privilege, not a property right or a contract, which allows its holder a limited right to use the public highways. The Commonwealth, acting through the General Assembly, may direct the conditions under which [the] privilege may be exercised. The license may be revoked by the issuing authority for due cause such as the failure to exercise a reasonable degree of safety or other conditions imposed by the Commonwealth. “Under the implied consent act, a motorist is deemed to have consented to submit to a chemical test for intoxication after being arrested for driving while under the influence of intoxicating liquor. Such consent is a condition to the lawful exercise of the driving privilege, and it is inferred from the operation of a motor vehicle on the highways. The consent extends to all motorists driving on the public roads of the Commonwealth, not only those possessing a Pennsylvania operator’s license. The implied consent is, however, limited to suspension of the driving privilege of any person who refuses to submit to a test, unless he is incapable of consenting. Thus, if the motorist refuses to take the test, it may not be lawfully administered.” Comment, The Pennsylvania Implied Consent Law: Problems Arising in a Criminal Proceeding, 74 Dick. L. Rev. 219, 222-3 (1970); see also Annot., 88 A.L.R. 2d 1064 (1963). Cognizant that “licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment . . . whether the entitlement is denominated a ‘right’ or a ‘privilege’,” Bell v. Burson, 402 U.S. 535, 539 (1971), we conclude that the language and reasoning of Judge Beckert in Parker and Burch Licenses, 54 Pa. D. & C. 2d 142, 144-5 (Bucks Co. C.P. 1971), is applicable here. There the operator attempted “to equate this appeal, although civil in nature, with a criminal action. We fail to see the similarity. We are, of course, dealing here with an ‘implied consent law’ predicated upon the principle that the operation of a motor vehicle upon the highways is a privilege, not a right and, therefore, the legislature could prescribe conditions on which that privilege is exercised and invoke sanctions denying the privilege in order to prevent unsafe driving. Accordingly, our Legislature enacted the present statute which puts a choice to a motorist who is believed to be operating his vehicle while under the influence of intoxicating liquor. The statute does not oblige or compel one situate in the appellant’s shoes to submit to a breath test and, therefore, to incriminate himself in the eyes of the Secretary of Transportation. The licensee ... is expressly given the right and option of refusal, and if he submits to the test, all of the constitutional safeguards are operative in his favor and for his protection at the subsequent criminal trial. “Specifically turning to the question at hand, the language of the statute is clear and there is nothing therein contained requiring the police officer to go any further than to request the motorist to submit to the test. While it may be the better practice for the officer to inform the motorist [that his refusal to take the test might result in a suspension of his license] we cannot interpret the statute as placing such a burden upon the officer to do so, or in holding that the failure to so advise would be grounds for the reversal of the secretary’s suspension of the motorist’s operating privileges.” Accord, Commonwealth v. Langford, 20 Ches. Co. Rep. 124 (1972). The lower court’s reliance on Kesler v. Department of Motor Vehicles, 81 Cal. Rptr. 348, 459 P. 2d 900 (1969), is misplaced. The California statute specifically states: “Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.” Since the Pennsylvania statute does not require that the operator be advised that his license may be suspended for refusal to take the test, we therefore conclude that there is no obligation on the part of the police officer to so advise the operator. The order of the Court of Common Pleas of Cambria County is reversed, and the order of the Secretary of Transportation is reinstated. The state, as owner of highways, roads, streets and bridges, may make any regulation necessary for protection of life or property thereon. Furthermore, the power to regulate the manner and circumstances under which automobiles may be operated upon the highways of the Commonwealth is vested in the Legislature, and is based, not only upon its right to control and regulate the use of the highways, but is buttressed by the inherent police power of the state. Maurer v. Boardman, 336 Pa. 17, 7 A. 2d 466 (1939), aff'd sub nom. Maurer v. Hamilton, 309 U.S. 598 (1940) (Footnote added.)

Opinion by Judge Krameb, This is an appeal filed by Hubert Knox (Knox) from an order of the Unemployment Compensation Board of Review (Board) dated June 29, 1973, in which the Board disallowed an appeal from its referee’s adjudication denying unemployment compensation benefits to Knox. Knox was employed by the Pittsburgh Office Furniture Company as a laborer for approximately one year until the last day of his employment on December 4, 1972. The record indicates that Knox believed that his work was causing him to become nervous and subject to hypertension. Knox testified that he did not request lighter duties or different work, and that he was not advised by his doctor to leave his work because of his condition. Knox stated for the record that he became nervous when his employer scolded him for mistakes made on the job. In any event, on his last day of employment Knox returned from lunch and voluntarily “quit,” telling his employer that he could not “take it anymore.” The referee found that Knox voluntarily terminated his employment, and concluded that he was ineligible for compensation because he left his work without cause of necessitous and compelling nature. As we have said so many times, when an individual voluntarily terminates his work and then applies for unemployment compensation benefits, he assumes the burden of showing that his termination was with cause of a necessitous find compelling nature, e.g., see Tollari v. Commonwealth Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A. 2d 833 (1973). However, it is true that illness of a claimant may constitute good cause for leaving employment within the meaning of Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802(b). Bee Tollcuri, supra. Section 402(b) (1) reads in pertinent part as follows: “An employe shall be ineligible for compensation for any week— “(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in ‘employment’ as defined in this act: . . . .” This record indicates that Knox quit his job primarily because he was dissatisfied with work conditions. Such a reason for quitting does not constitute the required necessitous and compelling reason which would permit the Board to grant unemployment compensation benefits. See White Unemployment Compensation Case, 202 Pa. Superior Ct. 185, 195 A. 2d 823 (1963). We have carefully reviewed this very short record and conclude that there is sufficient substantial evidence to support the conclusion of the referee and the Board that Knox did not meet his burden of proving that his voluntary termination of his work was due to a cause of a necessitous and compelling nature. Knox’s principle contention in his appeal to this Court is that he was deprived of due process of law because he was unrepresented by counsel at the hearing before the referee and the referee failed to counsel him on how to prove his case. Knox contends that at the hearing he had in his possession a letter written by a physician two months after Knox’s last day of work. ICnox argues that the referee somehow should have interrogated Knox at the hearing to determine whether Knox had any such medical evidence. This Court is well aware of the requirement that due process of law must be afforded in all administrative agency hearings. See Brookwood Farms v. Milk Marketing Board, 8 Pa. Commonwealth Ct. 511, 304 A. 2d 510 (1973). This Court has remanded or reversed where a citizen has not been afforded all of his due process rights. Kentucky Fried Chicken of Altoona v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A. 2d 165 (1973); Cerceo v. Darby, 3 Pa. Commonwealth Ct. 174, 281 A. 2d 251 (1971). If the record made in this case would show in any way that the referee had improperly refused to accept relevant competent and materia] evidence, then we would have to agree that Knox was deprived of due process of law. However, there is no such showing in the record. The facts in this case are similar to those in Paoloco v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 214, 309 A. 2d 594 (1973). In Paoloco, the claimant was not represented by counsel before the referee and on appeal she argued that she had been deprived of due process because the referee had failed to advise her of various rights. In considering Paoloco’s due process argument, this Court stated: “Although it might have been preferable if the referee had so advised an unrepresented claimant, we cannot say that he is required to give such advice. As our Superior Court has said: ‘Ordinarily it is not incumbent upon the referee to inquire why the parties are not represented by counsel, nor is it his duty to advise them that they are entitled to counsel. The parties testified at length and were not hampered in any way from testifying freely and as they desired. No further hearings were requested by appellant to present additional or new testimony. After reviewing the record, we feel that a fair hearing was conducted by the referee.’ Hackey Unemployment Compensation Case, 194 Pa. Superior Ct. 79, 81-82, 166 A. 2d 303, 305 (1960). It is true, of course, that the referee may not deny the above stated rights to claimant, if claimed, but there is no evidence of such claim or denial thereof in the record here. Cf. Klink v. Unemployment Compensation Board of Review, 5 Pa. Commonwealth Ct. 62, 289 A. 2d 494 (1972).” 10 Pa. Commonwealth Ct. at 216-217, 309 A. 2d at 596. Knox fails to point out either a specific deprivation of rights or an unfairness permeating the hearing so as to strike at the conscience. There is nothing in the record which would permit us to conclude that Knox was deprived of any of his rights under the law. Our reading of the record permits us to conclude that the referee carried out all of his duties required by the Board’s rules imposing duties to assist an unrepresented claimant, and further that Knox was provided with a fair hearing in which all his rights were protected. We therefore Order And Now, this 28th day of March, 1974, it is ordered that the appeal of Hubert Knox is hereby dismissed, and the Order of the Unemployment Compensation Board of Review is hereby affirmed. A copy of the letter was attached to Knox’s brief by his counsel on appeal to this Court. Although not proper evidence, we note that the letter states that the physician treated Knox on September 15, 1972 for what appeared to be a “bleeding Duodenal Ulcer.” The letter also states that Knox appeared (on September 15, 1972) to be nervous and apprehensive. However, the letter concludes with the statement that the physician believed that Knox was able to work. Certainly this letter does not support Knox’s claim that he could not work for health reasons.

Opinion by Judge Mencer, The narrow issue in this workmen’s compensation case is whether or not a fatal heart attack suffered by Frank Varenda (decedent) is a compensable injury under Section 301(c) (1) of The Pennsylvania Workmen’s Compensation Act (Act) so that his widow, Mrs. Frank Varenda (claimant), may receive benefits. Decedent had been employed by the Jeddo Highland Coal Company (appellant) for about 15 years as an oiler. His job was somewhat unusual in that he worked 7 days a week for at least 11 months prior to his death. He died on November 22, 1972, at which time he and a coworker, Joseph Sabatella, were attempting to move a heavy cable, a task which decedent had performed many times before. The undisputed cause of death was a coronary occlusion or heart attack. On January 9, 1973, claimant filed a fatal claim petition seeking workmen’s compensation benefits on account of decedent’s death. After two hearings had been held, a referee awarded benefits. The referee’s award was then affirmed by the Workmen’s Compensation Appeal Board (Board). Appellant now appeals to us. The question of whether or not decedent suffered a compensable injury under the Act depends on our interpretation of Section 301(c) (1). This clause, as amended by the Act of March 29, 1972, P. L. 159, §7, effective May 1, 1972, and the Act of October 17, 1972, P. L. 930, §2, now reads as follows: “(c)(1) The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term ‘injury arising in the course of his employment,’ as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include! all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.” (Emphasis added.) Our careful review of the 1972 amendments to this section and other sections of the Act compels the conclusion that it is no longer necessary for a claimant to prove an “accident” in order for his injury to be compensable. The Legislature, by deleting the word “accident” from Section 301(c) and substituting for it the word “injury” in the other sections, has made it clear that injuries sustained by employes after May 1,1972 are compensable if (1) they arise in the course of employment and (2) are related thereto. In the present case, there is little doubt that decedent’s injury arose in the course of his employment. The referee’s findings, as supported by the uncontradicted evidence in this case, reveal that decedent was on the job performing one of his usual duties at the time of his death. Since the term “injury arising in the course of employment” is defined in Section 301(c) (1) to include all injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, it is clear that decedent’s injury is included in this term. Our conclusion that decedent’s injury arose in the course of his employment does not end our inquiry. As Section 301(c) (1) makes clear, in order to be compensable, his injury must also be shown to be related to his employment. In other words, the causal connection between decedent’s work and his injury and subsequent death must also be proved. Our careful review of the record convinces us that the causal connection between decedent’s work and his heart attack was adequately proved by the testimony of Dr. Arthur L. Koch. Dr. Koch testified unequivocally that decedent’s death was directly related to his work. In response to a hypothetical question posed by claimant’s counsel, Dr. Koch stated: “Yes, I believe it’s [decedent’s death is] directly directly related to his work. The fact that he worked long hours; very little time off; and the circumstances, the instantaneous nature of his death, all these lead up to the fact that it happened on the job.” (Emphasis added.) Dr. Koch elaborated further on “the circumstances” when he stated, in response to claimant’s counsel’s question as to why decedent’s work activity caused his death: “According to the gentleman who preceded me [Mr. Sabatella] — his testimony — this man had to crouch, get into a spot, and the way he was found lying, he must have exerted himself, one way or the other, to have fallen backwards, if I understand things correctly . . ..” We hold that this testimony adequately proved a causal connection between decedent’s work and his fatal heart attack. Although it was rebutted by the testimony of appellant’s medical witness, the conflict in medical testimony was resolved by the referee in claimant’s favor. Such a resolution was within his power as the fact finder and we are bound by his determination. Hoy v. Fran Lingerie, 9 Pa. Commonwealth Ct. 542, 308 A. 2d 640 (1973). Appellant also argues that Dr. Koch’s testimony was based on an improper hypothetical question. Our review of the hypothetical question posed to Dr. Koch compels the conclusion that it was entirely proper. Moreover, even if the hypothetical question was improper, appellant’s counsel’s failure to object at the time the question was posed precludes, at this time, an attack on the propriety of the question. Gordon v. State Farm Life Insurance Company, 415 Pa. 256, 203 A. 2d 320 (1964). Therefore, we issue the following Order And Now, this 15th day of May, 1975, the affirmance by the Workmen’s Compensation Appeal Board of the referee’s order dated March 14,1974, relative to the claim of Mrs. Frank Varenda is hereby affirmed. Accordingly, it is ordered that judgment be entered in favor of Mrs. Frank Varenda and against Jeddo Highland Coal Company in the amount of $71.91 per week, beginning November 22, 1972 and continuing for an indefinite period, and for the sum of $750 on account of decedent’s burial expenses, together with interest at the rate of 10 percent per annum on deferred installments from the date due to the date paid, all within the terms and limits of The Pennsylvania Workmen’s Compensation Act. . Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §411(1) (Supp. 1974-75). . Section 101, 77 P.S. §1; Section 105, 77 P.S. §25; Section 204, 77 P.S. §71; Section 301(a), 77 P.S. §431; and Section 304, 77 P.S. §482 (Supp. 1974-75). . Since the necessity of proving an “accident” has been removed, the judicially enunciated categories of accident will have no usefulness in all cases arising after May 1, 1972. See Hinkle v. H. J. Heinz Co., 7 Pa. Commonwealth Ct. 216, 298 A. 2d 632 (1972). . Decedent was out of sight of his coworker at the time of his injury. However, the evidence in this case (the coworker’s testimony on the events preceding the injury, the position of decedent’s body in relation to the cable and a hook used to pull the cable, and the usual manner in which the task of moving the cable was performed) adequately supports the referee’s finding that decedent was in the process of moving the cable when he suffered his attack. . The burden of proof is on the claimant to show that he has suffered a compensable injury. See Hinkle, supra.

Opinion by President Judge Bowman, This particular proceedings is a by-product of a survival action initiated by the executor of the respondent’s estate against the petitioner, Chul Kim, M.D., upon allegation that the petitioner had acted negligently in the treatment of the decedent, Elizabeth G. Heinzenroether, thereby causing her to sustain serious injury to her arm. The underlying proceedings were initiated pursuant to the provisions of the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. §1301.101 et seq., the purpose of which is “to make available professional liability insurance at a reasonable cost, and to establish a system through which a person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation.” Section 102 of the Act, 40 P.S. §1301.102. The Act creates within the Department of Justice the Office of the Administrator for Arbitration Panels for Health Care (Administrator), whose duties include the promulgation of all rules prescribing the manner of obtaining redress under the Act, the appointment of a separate Arbitration Panel for each claim, and ruling on all preliminary motions. In order to prosecute a claim, a patient, or representative, files a complaint with the Administrator who refers the case to the appropriate Arbitration Panel which hears and resolves the claim. See Sections 401 and 402 of the Act, 40 P.S. §§1301.401, .402; 37 Pa. Code §171.1 et seq. Accordingly, on March 23, 1977, a “notice complaint” was filed with the Administrator alleging negligent mistreatment on or about June 15, 1975. After procedural infighting not germane to a resolution of the issue before this Court, a formal complaint was forwarded to the Arbitration Panel on June 13, 1977. The petitioner thereafter filed preliminary objections to the complaint, the substantive basis of which was that the panel for health care was without jurisdiction to entertain an action which arose prior to the effective date of the Act, January 13, 1976. Respondent answered by filing a petition for change of venue to the Allegheny County Court of Common Pleas; said petition being premised upon Section 506 of the Act, 40 P.S. §1301.506, which binds the Arbitration Panel to the Rules of Civil Procedure, and Pa. R.C.P. No. 213(f), which provides that no action shall be dismissed for lack of jurisdiction when there exists within the Commonwealth a court of appropriate jurisdiction in which the action could origiginally have been brought. Petitioner responded that the action should be dismissed altogether for lack of jurisdiction. On October 27, 1977, upon consideration of the above petition and answer, the Administrator transferred the claim to the Allegheny County Court of Common Pleas, believing that “the spirit of Pa. R.C.P. 213(f) and Pa. R.C.P. 126 supports the proposition that a party should not be prejudiced by bringing an action in the wrong jurisdiction, and that the liberal spirit of said rules is intended to include the wrong tribunal as well as the wrong court.” It is from this determination that the petitioner has appealed to this Court, invoking Section 403 of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.403. At issue, therefore, is whether the Administrator has the power to transfer from arbitration to common pleas a proceedings brought upon a cause of action arising prior to the effective date of the very act which is the source of his authority. It is petitioner’s position that the applicability of the Rules of Civil Procedure is dependent upon the jurisdiction of the Arbitration Panel; that since Section 1003 of the Act, 40 P.S. §1301.1003, specifically excludes from its coverage all causes of action arising before January 13, 1976, the transfer provisions of Pa. R.C.P. No. 213(f) cannot apply. Is the Administrator’s power to transfer dependent upon the subject-matter jurisdiction of the Arbitration Panel? We think not. We so conclude because we believe the operative rule in this Commonwealth permits liberal transfer by a court, or other tribunal lacking subject-matter jurisdiction, to the appropriate court or tribunal, and that this rule ad heres regardless of the particular circumstances wherein a jurisdictional statute postdates the cause of action. The general rule regarding the transfer of erroneously filed matters, as set forth in the Judicial Code, 42 Pa. C.S. §101 et seq., dictates transfer to the appropriate forum, treating the matter as having been filed in the transferee forum on the original filing date. This rule is repeated by both Pa. R.C.P. No. 213(f) and Section 503 of the ACJA, 17 P.S. §211.503. Though these provisions address themselves specifically to court proceedings, we feel they create a framework within which a tribunal operating under standards such as those imposed by the Health Care Services Malpractice Act may transfer a matter to the appropriate forum upon a determination that jurisdiction is lacking. It is clear that the legislature intended the Rules of Civil Procedure should govern proceedings before both the Administrator (Section 307, 40 P.S. §1301. 307) and the Arbitration Panel (Section 506, 40 P.S. §1301.506). We believe it would be anomalous to hold inapplicable for lack of jurisdiction the very rule outlining the procedure to be followed in the event of improper jurisdiction. There is no dispute that the Administrator, who “is authorized and empowered to rule on all preliminary motions” by Section 307(c) of the Act, 40 P.S. §1301.307 (c), has it within his purview to effectuate such transfers relating to causes of action accruing after January 13, 1976. See Section 708(d) of the Judicial Code, 42 Pa. C.S. §708(d). Because we believe a rule of procedure which anticipates improper subject-matter jurisdiction has an inherent, self-executing, retroactive effect, we hold the Administrator’s transfer authority pertains as well to causes of action accruing before January 13, 1976. "We are not unmindful of the time frame within which we operate, and that the Administrator’s power evolves from legislation postdating the cause of action. His authority in the instant case stems not from any retroactive effect of the Act itself, but rather from that of Pule 213(f), and his authority to apply said rule in ruling on preliminary motions. Our holding in this manner is consistent with the proposition that a court is ordinarily imbued with initial jurisdiction to ascertain its own jurisdiction; regardless of a final determination that subject-matter jurisdiction is lacking. See, for example, Connellsville Township Supervisors v. City of Connellsville, 14 Pa. Commonwealth Ct. 532, 322 A.2d 741 (1974); see also Fischer v. Kassab, 32 Pa. Commonwealth Ct. 581, 380 A.2d 926 (1977) (jurisdiction to consider preliminary objections of sovereign immunity and dismiss for lack of jurisdiction). Commensurately, we deem it within the power and authority of any tribunal performing quasi-judicial functions to determine the nature and extent of its own jurisdiction. See Grime v. Department of Public Instruction, 324 Pa. 371, 188 A. 337 (1936); McDevitt v. Gunn, 182 F. Supp. 335 (E.D. Pa. 1960); cf. Troiani Brothers, Inc. v. Pennsylvania Public Utility Commission, 36 Pa. Commonwealth Ct. 179, 387 A.2d 980 (1978), and it is to precisely this power and authority which rules in the nature of Pa. R.C.P. No. 213(f) are addressed. While there is scant precedent to aid us in resolving the precise issue, we do believe that analogy can be drawn to that line of cases emanating from Pennsylvania’s Supreme Court addressing the interrelationship between Section 9, Article V, of the 1968 amended Constitution, its implementing legislation, and preexisting statutes regulating appellate review-. On several occasions, litigants not only ran afoul of shortened time limits within which an appeal had to be brought, but also filed erroneously in the Supreme Court. Bather than quash the appeal, the Supreme Court granted an extension of the appeal period and remitted to the Superior Court as though timely filed. See Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970); Plains Township School District Appeal, 438 Pa. 294, 265 A.2d 358 (1970). On yet another occasion, an appeal by a discharged Bethlehem City police officer had similarly been erroneously filed in the Supreme Court when, by virtue of the 1968 appeal statutes, appellate jurisdiction was placed in the Superior Court. However, under Section 402 of the ACJA, 17 P.S. §211.402, appellate jurisdiction of such cases was vested in the Commonwealth Court. On the operative date of the ACJA, the appeal was improperly in the Supreme Court. Bather than quash as untimely, or transfer to the Commonwealth Court, the Court deemed it more appropriate to transfer to the court which had jurisdiction on the date the appeal was filed. See Kramer Appeal, 445 Pa. 238, 282 A.2d 386 (1971). The operating principle within these decisions appears to be that altered procedure should not ipso facto preclude a litigant from prosecuting a cause of action. In the cases cited above, the respective appellants had pursued a proper course of action under rules which no longer pertained. The Supreme Court found their actions not so unreasonable as to compromise their opportunity to pursue their appeals in the proper forum. We believe a similar spirit should guide us in disposing of the objections to the respondent’s claim. Although factually distinguishable from the above in that respondent has improperly filed under new rules, the result sought by petitioner is precisely that which the Supreme Court endeavored to avoid, effective elimination of a substantive cause of action by reason of amended procedural rules. Such, a result is particularly incongruous in a situation where, as here, promulgation of the new act is intended to facilitate rather than hinder prosecution of a claim. Oedeb Now, August 25, 1978, the order of the Administrator for Arbitration Panels for Health Care transferring the claim of respondent to the Court of Common Pleas of Allegheny County is affirmed. Section 307 of the Act, 40 P.S. §1301.307: (a) The administrator shall adopt and publish such uniform rules and regulations as may be necessary to carry out the provisions of this act, and shall prescribe the means, methods and practices necessary to effectuate such provisions. Such rules and regulations shall be consistent with the common and statutory law of the Commonwealth, the Pennsylvania Rules of Civil Procedure, and the Pennsylvania rules of evidence. Such rules and regulations. after consultation with the Secretary of Health, may include provisions for the use of forms which provide for the disclosure of the nature of the proposed treatment or diagnosis, risks of the proposed treatment or diagnosis, and alternate methods of treatment or diagnosis. (b) The administrator shall have the power to consider and approve offers of settlement for fiduciaries, minors and incompetent parties at any time prior to the first meeting of the arbitration panel. The fund may be represented at any negotiation or settlement exceeding the basic coverage insurance carrier limit of liability. (c) Prior to appointment of an arbitration panel chairman, the administrator is authorized and empowered to rule on all preliminary motions. See Section 5103(a), 42 Pa. C.S. §5103 (a) : (a) General rule. — If an appeal or other matter is taken to or brought in a court or magisterial district which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court or magisterial district of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee court or magisterial district on the date first filed in a court or magisterial district. See also Section 5101(a), 42 Pa. C.S. §5101(a) : (a) General rule. — Every person for a legal injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. The new Judiciary Act Repealer Act, Act of April 28, 1978, P.L. No. 53 (“JARA”), effective generally June 27, 1978, contains a Section 933(a)(1) (viii) which addresses appeals from the Arbitration Panel: Determinations of an arbitration panel established under the act of October 15, 1975 (P.D. 390, No. 111) known as the ‘Health Care Services Malpractice Act.’ Except as otherwise prescribed by general rules, venue shall be in the county where the cause of action arose. The fact that the Administrator’s determinations are not included within the scope of this section indicates to us an intention on the part of the legislature to maintain the independence of that office, and further buttresses our opinion that exercise of the Administrator’s preliminary powers is not dependent upon the subject-matter jurisdiction of the Arbitration Panel. The test of Section 9 reads : There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law. See Act of December 2, 1968, P.L. 1130; Act of December 2, 1968, P.L. 1133 (repealed by Section 509, ACJA, 17 P.S. §211.509).

The opinion of the Court was delivered by Gibson, C. J. Had the defendants below purchased the property subject to the mortgage debt, the case would have been within the principle of Campbell v. Shrum, because the price would have been estimated at the clear value less the mortgage debt, and it may be said that so much of the price would have been virtually retained to answer it; so that the plaintiff would have lost that much, had he been compelled to pay with other funds than those set apart for the purpose in the defendants’ hands. As it would have been a fraud in them to retain his money and let him be pursued for it on his bond, they would have been held liable on an implied promise to apply it to the purpose intended; and it may be said in every such case, that he who purchases expressly subject to an encumbrance, as between the vendor and himself, makes the debt his own—which is the principle of Campbell v. Shrum. But what deduction or reservation of purchase-money was there in the contemplation of the parties before us? There was no express promise to pay a farthing either to the plaintiff or the mortgagees; nor is there anything in the nature or circumstances of the transaction from which a promise can be implied, further than as regards an application of the fund to the debts. It does not appear that the object of the defendants was profit on a resale, or to take the property as their own, or that there was any sale to them at all. The plaintiff proposed to convey to them his house and lot subject to a mortgage to the Society of United Brethren, who were not party to the arrangement, in consideration of receiving a release of their debts. He could not have conveyed an unencumbered title; and perhaps no more was intended to be expressed than that he did not undertake to do so. The defendants agreed at the foot of a consolidated statement of his liabilities, to release their claims and take a conveyance to two of their number as trustees, “ for the use of the above debt;” and he conveyed accordingly. Was that a sale, or was it an ordinary assignment to trustees for distribution among creditors ? There is not a word in the agreement about purchase-money, or a reservation of anything ; nor is there an engagement to pay to any one but themselves and the mortgagees, nor to the latter beyond the proceeds of the property: neither is there a guaranty that the proceeds will be sufficient to discharge the mortgage debt. Had there been a surplus after payment of all the debts, the plaintiff would have been entitled to it; and why should he be allowed to call on the defendants to make up any deficiency ? The price obtained for the property was applied by the trustees to the mortgage, but did not discharge it; and the plaintiff calls for indemnification from his creditors for the residue of it recovered from him on the bond which accompanied the mortgage, though they released him without having received a farthing from the fund. Such a claim is palpably unjust, and would require very positive expressions to give it effect. The agreement, however, imports distinctly that the property was to be conveyed to trustees for payment of debts, and not merely to be sold for the defendants’ advantage beyond satisfaction of their demands. What else can be drawn from the clumsy expression, “ for the use of the above debt 1” The defendants cannot be said to have been purchasers even in a technical sense; for the property was conveyed only to two of them, who executed a declaration of trust that they were to-apply it to the plaintiff’s debts, and return the surplus to him, should there be any. If, as seems to have been supposed below, the debts were the measure of the price fixed upon the property by the parties as the value of it, and constituted the consideration of the grant, it is difficult to account for the insertion of this clause for a return of surplus. If the defendants bought the property and paid for it with the debts, they, and not the plaintiff, would be entitled to the profits on a resale; yet the plaintiff undoubtedly retained a contingent interest in the property beyond its application to the mortgage, and one which is inconsistent with the notion that he sold it. The defendants, therefore, were not purchasers. Peter Knepply, who is sued as one of them, did not even sign the agreement; and they who did, were to get no more for it than the desperate chance of receiving something from an insolvent fund. For that consideration, they gave up their recourse to the plaintiff’s person and future earnings; and it would be a violation of the letter as well as the spirit of the agreement, to subject them to the loss of anything else. Judgment reversed and a venire de novo awarded.

The opinion of the Court was delivered by Kennedy, J. Originally, at common law, the feoffee to uses was the complete owner of the land, and his estate therein was subject to all the incidents to which real ownership was liable. Co. Lit. 271 b. note (1). His wife was entitled to dower in it. Bro. Feoff. Uses, pi. 10. It was subject to wardship, relief, &c. He had the power of selling it, and forfeited it for treason or felony. In short, he might have brought actions, and have exercised every kind of ownership over, or in respect of, it. Dyer 9; Jenk. Rep. 190. But after some time, notwithstanding the legal estate was vested in the feoffee to uses, equity stepped in to the relief of the cestui que use, and furnished a protection to the latter against the judgments, other encumbrances, and bankruptcy of the former. 2 P. Wms. 278; 1 Bro. Ch. Ca. 278; 2 P. Wms. 316; 3 Ibid. 187, note A.; also against the dower and free bench of his wife. Hinton v. Hinton, (2 Vez. 634, 638); Noel v. Jevon, (2 Freem. 43) ; Bevant v. Pope, (Ibid. 71); and against the tenancy by curtesy of the husband of a female trustee, Cashborn v. Inglish, (7 Vin. Abr. 157). At length, however, the Statute of Uses, 27 Hen. 8, c. 10, was passed, by which the possession was devested out of the persons seised to the use, and transferred to the cestuis que use; thus vesting the latter with the legal estate, and putting them in the place of the feoffees. Co. Lit. 271, note (1). Trusts, since the passage of this statute, are in most respects what uses were previously at the common law. Same note. But then it is not every use which may be created that the statute will operate on, so as to transfer £he possession to the cestui que use. For example, if a devise be made to trustees, to receive the rents and profits thereof during the life of A, and that such rents and profits shall be applied for the subsistence and maintenance of the said A during his life, the use in such case is not executed in A by the statute, and cannot therefore unite with a subsequent legal limitation to the heirs of the body of A. Silvester v. Wilson, (2 Term Rep. 444). See also Symson v. Turner, (1 Eq. Ca. Abr. 383); 2 Bl. Comm. 336; Shapland v. Smith, (1 Bro. Ch. Ca. 75). The reason why the statute cannot operate in such case to execute the use, is very obvious, because it would be contrary to the intention of the testator as manifested by the terms of' the devise, that the cestui que use should become the legal owner of the estate, and as such take the possession of it under the statute; when it is manifest that the testator intended the devisee or trustee should take and retain the possession for the purpose of administering the trust, which cannot be well done without it. As to the case before us, it is perfectly clear that the statute is in nowise applicable to it. First, because, there is no cestui que use in being as yet, to whom the possession of the estate devised can be transferred; and secondly, because, by the terms of the devise it is evident that the testator has reposed a personal confidence in his son Samuel, the trustee, by intrusting to him personally the entire management and accumulation of the estate according to his own discretion; thus rendering it utterly impracticable for any other than Samuel to administer and execute the trust agreeably to the will of the donor. But it does not follow, as seems to be suggested by one part of the argument of the counsel for the plaintiff in error, that because the Statute of Uses does not operate on the son, Samuel, therefore, must be regarded as the legal and absolute owner of the estate, both at law and in equity, and consequently that it is liable to be taken in execution and applied to the payment of his debts. For although the statute is inoperative, yet the use declared must be treated and dealt with as if the statute had never been passed. But before the enactment of it, equity, as has been already shown above, interposed to protect the rights of the cestui que use, and to preserve the estate for his benefit from the debts and encumbrances of the trustee, according to the design and intention of the donor or party creating the trust. It is objected, however, that inasmuch as no cestuis que use are appointed by the will to receive the rents and profits of the estate, and it cannot be known during the life of Samuel who they are or may be, and Samuel is to have the use of the estate during that period for his support and maintenance, he must be considered as having a real interest therein, which is incompatible with a mere trusteeship, and such as can only belong to a real ownership, at least for life. It is certainly not necessary to the- creation of a trust estate that a cestui que use in being should be named, nor is it requisite that the cestui que úse should be known as such before the death of the trustee for life. It is sufficient if the person designated as the cestui que use be in existence, and can be distinguished at the death of the trustee. It is also perfectly consistent with the idea of a trusteeship that the trustee should be compensated for his services rendered in the execution of the trust; and in all cases of voluntary trusts there can be no impropriety or illegality in leaving it to the party creating the trust to say what that compensation shall be, and to the person appointed trustee to determine whether he will accept and undertake the administration of the trust for the compensation offered. It may be a certain sum of money to be deducted annually, and taken by the trustee out of the profits or' trust estate; or it may be an uncertain sum, as in the present instance, whatever it may be, that shall be sufficient for his' support and maintenance, be it little or great. In the first case, it will scarcely be pretended that the trust estate could be taken in execution for the debts of the trustee. And if it be that it could not, it is equally clear that it could not in the second instance; for the principle of the compensation and its relation to the estate is precisely the same in the latter that it is in the former. And where the trustee is required to apply all his time and attention, as in the case under consideration, to the management and concerns of a valuable and complicated trust estate, an adequate support or maintenance of himself and family, if he should have any, would seem to be as small'a compensation as could well or ought to be offered and accepted. This is all that is given to Samuel, the trustee in this case, or that he has any right to claim; for by the terms of the will creating the trust, the whole of the rents, profits and proceeds of the trust estate, over and beyond what shall be requisite for his support, are to be disposed of by him in such way as he shall think most advisable, so that they shall accumulate, not for his benefit, but for the benefit of those who shall, upon his death, be entitled to receive and take the same according to the terms of the will. That an accumulation of the rents and proceeds of a trust estate may be directed by the party creating it for the benefit of those who may and shall come into being during the life of the trustee, or be in existence at the time of his death, cannot be questioned. This subject underwent great discussion, as also consideration, in the celebrated case of Thelluson v. Woodford, (4 Vez. 227), 2 New Reports 357, where it was determined that accumulation of the rents of an estate might be directed for so long a time as that during which the law allows a man to render the estate unalienable; which produced the passage of an Act of Parliament, 39 and 40 Geo. 4, c. 98, confining the power of accumulation to twenty-one years. In such an extension of the accumulation, it must generally be, as it was actually in that case, that the accumulation was for the use and benefit of those who were unborn at the time of the creation of the trust. But this formed no objection to it, as long as it did not interfere with the period allowed by law for rendering estates unalienable, which is one or more lives in being, and twenty-one years afterwards, and a few months, allowing for gestation. There is no established principle of either law or equity which gives the creditors of Samuel Given a right to apply the estate, which did belong to his father at the time of his death, to the payment of their claims, in direct opposition to the disposition which the father by his will made of it. Whoever has the right to give, has the right to dispose of the same as he pleases. Cujus est dare ejus est disponere, is the maxim which governs in such case. Neither can it advance such claim on the part of Samuel’s creditors, that the trust estate may be greatly enhanced by his personal services, and that his services may be worth much more than his support or maintenance. A man, though indebted and wholly unable to pay anything, may dispose of his personal services at what price he pleases, and his creditors cannot object to his doing so. If he be content to give them for his mere support and maintenance, without more, he has unquestionably the right to do so; though I would say, if he has it in his power by means of his personal services, even when he is destitute of all other means, to support himself and at the same time to pay his creditors, he ought to do so. A proper sense of moral obligation requires it of him. But if he does not choose to do so, it cannot be tolerated for a moment that his creditors shall be permitted to seize upon whatever has been committed to his possession and care, to be managed expressly for the use and benefit of others, and not for himself. The observations of the Chief Justice in Holdship v. Patterson, (7 Watts 551), may be applied here with double force, where the relation of father and son exists between the benefactor and the beneficiary. He there says, “ a benefactor may certainly provide for a friend (and especially a child) without exposing his bounty to the debts or improvidence of the beneficiary. He has an individual right of property in the execution of the trust, and to deprive him of it would be a fraud on his generosity (parental duty). To appropriate a gift to a purpose or person not intended, would be an invasion of the donor’s private dominion.” Judgment affirmed.

The opinion of the Court was delivered by Gibson, C. J. On the ground of necessity, the plaintiff was competent not only to specify the articles contained in the trunk, but to prove the value of them. Book entries by the party’s own hand are evidence, not only of sale and delivery, but also of price, which is a part of the contract. Originally such entries were allowed to prove, perhaps, no more than delivery; but experience induced the courts to go further. Yet the value of merchandise, bearing, as it does, a determinate price in the market, might be more readily estimated from description than the more uncertain value of clothing in every degree of wear, which the owner would be better able to estimate than a disinterested witness, who must, after all, found his judgment on the description which the owner may choose to give. Why trust to his data, and not to his estimate ? It is as easy to give a false description as to overstate the value. The plaintiff’s testimony, therefore, was properly received. But the deposition of the witness, who was within sixteen miles of the court-house, ought to have been ruled out. The rule of the Common Pleas in regard to it is a fragment of a most excellent system, established by the presidents of the judicial districts at the organization of the county courts under the constitution of 1790; and this part of it has been preserved entire until the present day. Indeed, it was taken from the rule of this court, which is still in force, and depositions under it have always been deemed provisional and secondary. In days gone by, the superiority of an examination in the face of the court and jury was justly appreciated, and I will not dwell on it; but to prevent truth and justice from being sacrificed to indolence and want of preparation, or something worse, it is our business to preserve at least the remembrance of it. These depositions have invariably been received as substitutes for present examination only when it was unattainable without a too great expenditure of money or trouble; and the party has always been required to produce the witness, if he were able to attend, and within the compass of forty miles. Was it in the plaintiff’s power to produce himl It is not pretended that he could not have been compelled to attend; and why was he not 1 When a party would prefer the deposition of his witness to an examination of him in court — and there are too many instances of such preference — the mere service of a subposna ought obviously not to stand for an excuse for his absence. If it were allowed, causes would, for the most part, be tried on depositions only; for few witnesses would attend of choice. It is easy to serve a subpoena; and easier still to make the witness comprehend that his attendance is not desired. Even where a party has acted with good faith, he is chargeable with laches if he do not have a defaulting witness brought in on attachment. A proper ground, therefore, was not laid. The other exceptions are to the exclusion of evidence to prove conditions contained in handbills, conspicuously placed in the stage-offices at Easton and Philadelphia, and put up in taverns along the route, one of which was said to be exemption from risk for luggage, and to prove the course of the office in regard to booking the names of passengers, in order to raise a presumption of notice. The evidence of destruction was sufficient. Of all documents, a handbill is the most fugitive and perishable. Who ever knew such a thing to be preserved, as required in this instance, for four years ? Pasted on an outside wall, it is destroyed by the elements; in the bar-room of a tavern, by those who light cigars; and in an office, by the next occupant. The apartment in which the office of the defendants had been kept in Philadelphia was used as a dry-goods store at the time of the search; and it is probable the office at Easton had undergone a similar transformation. In these circumstances, to require the original to be produced, or its destruction to be positively proved, would be unreasonable; and the proposed evidence of contents ought to have been received. Evidence of the course of the office was competent to affect the plaintiff with notice. It was held, in Mesnard v. Aldridge, (3 Esp. 271), that the printed conditions of an auction are sufficiently made known to bidders by being pasted up in the auction-room; and the printed conditions of a line of public coaches are, with equal reason, sufficiently made known to passengers by being pasted up at the place where they book their names. It is their business to take notice of regulations which are sufficiently notorious by being published there, without requiring the book-keeper to repeat to each that luggage is at the risk of the owner. They are bound at all events; and though a servant be sent to the office, constructive notice to him is notice to his principal. There is no apparent error in the charge; but as the cause will be tried on evidence which will probably present a different case, it has not been thought proper to examine the points in detail. Judgment reversed, and a venire de novo awarded.

OPINION OF THE COURT EAGEN, Justice. This is a case of first impression within this Commonwealth. In it, we are asked to determine whether workmen’s compensation benefits may be awarded for a partial loss of hearing suffered by an employee by reason of protracted exposure to noise in the usual course of employment. On September 11, 1969, the claimant, Darious E. Hinkle, filed a petition for compensation with the Workmen’s Compensation Board, alleging a 62% loss of hearing in his left ear and a 32 % loss of hearing in his right ear. He assigned May 9, 1969, as the date of the accident and excess noise at his place of employment as the cause of the injury. While conceding that he had lost no time from work on account of his injury, except for a one-hour period when he underwent a hearing examination, Hinkle nevertheless contended he had a right to a compensation award for a partial disability. He further claimed medical expenses and asked that the disability award be suspended, pending such time as the disability was reflected in future lost earnings". At the subsequent hearing before the Workmen’s Compensation Referee, it was established that for approximately twenty years, Hinkle had been employed as a mechanic in the can-making operations of the appellee, H. J. Heinz Company [Heinz]. Testimony indicated that the noise in the large room where Hinkle worked was at a high level, a level which increased over the years due to the addition of more machinery. There was no aecoustical material used in the large room, although after several employee complaints, Heinz did offer ear protectors to those employed in the can-making operation. However, before Hinkle could present medical testimony establishing the hearing loss resulted from the working condi tions, the Referee, on motion of counsel for Heinz, dismissed his claim. The Referee found: (1) that Hinkle had failed to prove he had sustained an accident within the meaning of The Pennsylvania Workmen’s Compensation Act; 2and (2) that the type of injury complained of is specifically excluded from compensation benefits under The Pennsylvania Workmen’s Compensation Act and/or The Pennsylvania Occupational Disease Act. Both the Workmen’s Compensation Board and the Court of Common Pleas of Allegheny County sustained the Referee’s dismissal of Hinkle’s claim. Hinkle then appealed to the Commonwealth Court and was again denied relief. The Commonwealth Court, while recognizing that a partial loss of hearing is compensable under the Workmen’s Compensation Act, nevertheless determined that Hinkle had failed to prove a compensable accident within the meaning of the Act. We then granted allocatur. The basic issue before this Court is whether or not Hinkle has set forth sufficient facts to warrant the conclusion that he sustained personal injury by accident arising out of and in the course of his employment. The intended distinction between those injuries which are compensable and those which are not is divided by a line which, at times, appears indistinct. Yuhas v. Bethlehem Steel Corporation, 8 Cmwlth. 302, 307, 303 A.2d 266 (1973); York v. State Workmen’s Insurance Fund, 131 Pa.Super. 496, 498, 200 A. 230 (1938). The decision in each compensation case depends primarily on its individual facts, Sayre v. Textile Machine Works, 129 Pa.Super. 520, 524, 195 A. 786 (1937), bearing in mind that the provisions of the Act are remedial in nature and are to be liberally construed, with borderline interpretations resolved in favor of the injured employee. U. S. Steel Corp. v. Workmen’s Compensation Appeal Board, 10 Pa. Cmwlth. 247, 249, 309 A.2d 842 (1973); Carpinelli v. Penn Steel Castings Co., 209 Pa.Super. 390, 394, 227 A.2d 912 (1967). In order to receive compensation under the Act, a claimant must prove both an accident and an injury. Adamchick v. Wyoming Valley Collieries Company, 332 Pa. 401, 410, 3 A.2d 377 (1938); Cole v. Pennsylvania Power & Light Company, 197 Pa.Super. 648, 651, 180 A.2d 272 (1962). Although the term “accident” is not defined in the Act, our courts have generally defined it as an untoward event, not expected or designed, occurring not from the usual course of events. See Lacey v. Washburn & Williams Co., 309 Pa. 574, 577, 164 A. 724, 725 (1933); Gausman v. R. T. Pearson Co., 284 Pa. 348, 354, 131 A. 247 (1925). “That which distinguishes an accident from other events is the element of being unforeseen.” Lacey v. Washburn & Williams Co., supra, 309 Pa. at 578, 164 A. at 725. It is well-settled that the factor which is unforeseen may lie either in the circumstances causing the injury or in the nature of the injury itself. Good v. Pa. Department of Property and Supplies, 346 Pa. 151, 154, 30 A.2d 434 (1943); Wance v. Gettig Eng. & Mfg. Co., Inc., 204 Pa.Super. 297, 300, 204 A.2d 492 (1964). Thus, “where the work or act performed by the employee is voluntary, and not marked by any abnormal or unusual feature, but where there occurs an unexpected and unusual pathological result; . the accident resides in the extraordinary nature of the effect rather than in the cause.” [Emphasis supplied.] Parks v. Miller Printing Machine Company, 336 Pa. 455, 459, 9 A.2d 742 (1939). See also Wance v. Gettig Eng. & Mfg. Co., Inc., supra; Gammaitoni v. Gasparini Excavating Company, 185 Pa.Super. 643, 139 A.2d 679 (1958). This effect-oriented approach to tjhe definition of what constitutes an accident is particularly applicable instantly since Hinkle does not allege that any one specific and traumatic occurrence precipitated the partial loss of hearing. Herein, Hinkle alleges the partial loss of hearing resulted from protracted exposure to high noise levels at his place of employment caused by the operation of heavy machinery. While conceding his employment was not marked by any unusual feature, Hinkle contends an accident within the meaning of the Act occurred when he suffered the unexpected loss of hearing. We agree. The appellee points to Hinkle’s failure to indicate that the injury was incurred after any one particular outburst of noise as proof that no accident occurred within the meaning of the Act. However, if, as must be conceded, hearing loss precipitated by one particular outburst of noise would be compensable, we would frustrate the remedial purposes behind our workmen’s compensation legislation if we were to deny relief to one injured by a series of similar noises, all occurring in the course of his employment, no one of'which caused the injury. Manifestly, each outburst of noise contributed to the hearing loss, with each particular effect being sudden. Viewing, as we do, each outburst of noise as a miniature accident operating to break down the claimant’s physical structure, we rule that loss of hearing resulting from protracted exposure to noise during the course of employment may constitute a compensable accident within the meaning of the Act. The right of a claimant to compensation should not be barred because he cannot definitely fix the date of the accident resulting in his disability, either because he cannot remembér the precise time when the accident occurred or because the accident was of such a nature that there is difficulty in ascertaining when it happened. The appellee relies upon Mauchline v. State Insurance Fund, 279 Pa. 524, 124 A. 168 (1924), for the proposition that an injury is compensable only if it arises from an accident occurring at a particular time. In that case, the claimant was denied compensation for the contraction of emphysema brought about by the inhalation of smoke and other fumes emitted by the defendant company’s electrical generator. The Supreme Court, reversing the lower court, held that no compensable accident had occurred since the condition was the result of an occupational disease, normally of slow development and not arising from some undesigned event occurring at a particular time. This decision, appellee contends, should control the disposition of the instant case. While we have considerable doubt as to the continuing vitality of the Mauchline decision, in light of recent pronouncements by this Court recognizing the remedial pur poses behind our workmen’s compensation laws and expanding the scope of compensable accidents, Fry v. Calcite Quarry Corporation, 460 Pa. 610, 334 A.2d 258 (1975); Hamilton v. Procon, Inc., 434 Pa. 90, 252 A.2d 601 (1969), we believe the instant case, is factually distinguishable. In Mauchline, there was no evidence relating the origin of claimant’s disability to trauma in the sense alleged herein. No outside thrust of traumatic force assailed or beat upon the workmen’s physical structure as happened instantly. The exposure to smoke and fumes cannot justifiably be compared to the constant hammering noise which it is alleged affected the bone structure and nerve endings in Hinkle’s aural cavity. And, while we can identify emphysema as a disease, not covered by the Act, a partial loss of hearing cannot be so easily classified. The appellee further contends that the claimant, with full knowledge of the working conditions, voluntarily exposed himself to the risk of hearing loss, thus estopping him from claiming the loss of hearing was unforeseen and unexpected. However, there is nothing in the record to justify the conclusion that Hinkle voluntarily exposed himself to the risk of hearing loss. Rather, the record is replete with testimony evidencing Hinkle’s complaints about the working conditions. In addition, appellee’s contention is tantamount to an assertion that Hinkle voluntarily assumed the risk of his injury, a defense specifically rendered unavailable to the employer by Section 201 of the Act, 77 P.S. § 41. This result is in accord with determinations reached by other state courts. In Winkleman v. Boeing Airplane Co., 166 Kan. 503, 203 P.2d 171 (1949), an assistant instructor of guards at defendant company’s pistol range brought a common-law action against his employer to recover for a permanent loss of hearing occasioned by his exposure to pistol shots on the range each working day for eighteen months. The Kansas Supreme Court denied the employee’s claim and held that his sole remedy was under that state’s workmen’s compensation statute. In evaluating the applicability of the workmen’s compensation statute to the employee’s claim, the Kansas court held it was not necessary to point to the particular shot that had caused his deafness saying, “If injury occurring as the result of a single accident is compensable, surely we will not declare that injury resulting from a dozen or more of the same or similar accidents, all occurring in the course of the employment, is noncompensable.” Similarly, in Shipman v. Employers Mutual Liability Insurance Company, 105 Ga.App. 487, 125 S.E.2d 72 (1962), an employee with Lockheed Aircraft Corporation sought workmen’s compensation for a partial loss of hearing caused by his exposure to jet aircraft engine noice, as a flight-line mechanic, for six years. The Georgia Court of Appeals held that such an injury was compensable under that state’s workmen’s compensation statute and stated: “[W]e do not think that it is necessary that the claimant be able to put his finger . upon the particular occasion when the engine noise left him bereft of his hearing.” Thus, it is apparent our decision today is not without precedent. Inasmuch as Hinkle was precluded from presenting medical testimony establishing the hearing loss was caused by the working conditions, the Order of the Commonwealth Court is vacated and the record is remanded to the Workmen’s Compensation Board for further proceedings consistent with this opinion. ROBERTS and MANDERINO, JJ., join in this opinion. ROBERTS, J., filed a concurring opinion in which MANDERINO, J., joins. POMEROY, J., filed a dissenting opinion. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. . Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. . At the time the instant petition was filed, Section 306(b) of the Act, 77 P.S. § 512, provided in pertinent part: “For disability partial in character . . . sixty-six and two-thirds per centum of the difference between the wages of the injured employe . . . and the earning power of the employe thereafter . . . . This compensation shall be paid during the period of such partial disability . , but for not more than three hundred and fifty weeks. ...” [Emphasis supplied.] We note that Heinz does not contest the applicability of Section 306(b) to Hinkle’s claim. . As the injury to Hinkle was allegedly incurred prior to May 1, 1972, the effective date of the 1972 Amendments to the Workmen’s Compensation Act, Act of March 29, 1972, P.L. 105, Hinkle was required to prove the occurrence of an “accident” within the meaning of Section 301(c), 77 P.S. § 411. The 1972 Amendments removed the necessity of proving an “accident” in order to be eligible for compensation. Thus, for all injuries incurred on or after May 1, 1972, it will only be necessary to prove an “injury arising in the course of . employment”. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1). Cf. Universal Cyclops Steel Corporation v. Krawczynski, 9 Cmwlth. 176, 305 A.2d 757 (1973). . Larson notes: “Most jurisdictions will regard the time of accident as sufficiently definite if either the cause is reasonably limited in time or the result materializes at an identifiable point. In the absence of definiteness in time of either cause or effect, as when repeated impacts or inhalations gradually produce disability, many courts find accident -by treating each impact or inhalation as a separate accident.” [Emphasis supplied.] 1A Larson, Workmen’s Compensation Law, § 39.00 (1973). . The testimony indicated that Hinkle’s complaints brought about the issuance, by Heinz, of ear protectors to those employed in the can-making operation. . Section 201 of the Act, 77 P.S. § 41 provides: “In any action brought to recover damages for personal injury to an employe in the course of employment, or for death resulting from such injury, it shall not be a defense— “(b) That the employe had assumed the risk of the injury;”

Opinion- by Rice, P. J., To the libel charging willful and malicious desertion. and' praying for a decree in divorce a. v. m. the respondent filed an answer denying the charge and averring that the libelant drove her from his home without just or reasonable cause. The'case was heard in open court, and after a full consideration of the testimony and reconsideration thereof upon reargument, the court found the facts to be, that the separation was forced by the libelant; that he actually drove the respondent from his home, and refused to allow her to return, notwithstanding her earnest and repeated solicitation to be allowed to do so. The respondent’s testimony, if believed, was sufficient to support this finding; and if the ordinary rule, which is applicable to a judge’s finding of fact from the conflicting testimony of witnesses who have testified before him in a case tried without a jury, is applicable to divorce cases in which the testimony was given in open court, we would be warranted in dismissing the exception to the foregoing finding upon the ground that manifest error is not clearly shown. It would seem from what was said in McMillin v. McMillin, 183 Pa. 91, that the rulé is applicable where a divorce has been refused, the evidence is conflicting, and the decision of the questions of fact depends upon the credibility of the witnesses. But in the later case of Middleton v. Middleton, 187 Pa. 612, it was said that where the appeal is from a decree granting a divorce the Supreme Court held it incumbent upon it, except where there had been an issue and a jury trial, to review the testimony, and to adjudge whether it sustained the complaint of the libelant, and that, in such appeals, the court had not adopted the rule generally applicable to proceedings before a master or an auditor that a finding of fact will not be disturbed except for manifest error. These cases, when carefully considered, will be seen to be perfectly reconcilable; and inasmuch as McMillin v. McMillin is not mentioned in Middleton v. Middleton, we would not be justified: in saying that it is overruled, and that the rule therein enunciated is no longer applicable to the class of appeals to which - it relates. This rule does not imply that if the appeal be from a decree refusing the divorce, it is not. incumbent upon the appellate court to review the evidence; but the case first cited is authority for this proposition, at least, that in reviewing the evidence brought up on such appeal, where it is in irreconcilable-conflict, and the correct determination of the issues of fact de pends upon the determination of the veracity of witnesses who have given .opposing testimony, the appellate court should, amongst other things, consider and give weight to the fact that the judge who saw and heard the witnesses and observed their manner of testifying had a much better opportunity than the appellate court has to form a correct judgment as to their credibility. But leaving this consideration out of view, and using such means to determine the questions of fact as the printed testimony alone furnishes us, our conclusion is that the charge of willful, and malicious desertion has not been established by the clear preponderance of the credible testimony: To be more .explicit, our conclusions are: first, that if the libelant did not actually drive the respondent from his home — upon which question there is considerable room for doubt — she departed .with his consent; second, that within two years she returned and made a bona fide offer to resume the marital relation which was not accepted by him. That there was a separation is undisputed, but separation is not desertion. “Desertion is an actual abandonment of matrimonial .cohabitation with intent to desert, willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when,. without cause or consent, either party withdraws from the residence of the other:” Ingersoll v. Ingersoll, 49 Pa. 249; Middleton v. Middleton, 187 Pa. 612; Hull v. Hull, 14 Pa. Superior Ct. 520. Many other cases might be cited in which this concise and comprehensive definition has been approved. The learned counsel for the appellant puts the stress of his argument upon the proposition that the respondent has not shown such cause for separation as would have been sufficient to enable her to obtain a divorce. While she testifies to a course of conduct on his part which was unkind, annoying, and naturally the cause of unhappiness to her, we are not prepared to say that she made out a case prior to her offer to return which would entitle her to a divorce from him. Nor is it necessary to go to that extent in order to sustain the decree. The guilty intent to desert is’ rebutted where the separation is encouraged by the other party or by mutual consent. Mutual consent to the separation, not revoked by either party, is as fatal to an application for divorce upon the ground of desertion as would be acts on the part of the libelant which would give the respondent legal cause to leave him and to obtain a divorce from him. Upon this subject we refer to the opinion of Judge King in Butler v. Butler, 1 Parsons’ Sel. Eq. Cases, 329, the doctrine of which has been recognized in many subsequent cases.. What may have-been desertion in its inception, but has become- a separation with mutual consent within two years, is not ground for divorce. See Vanleer v. Vanleer, 13 Pa. 211; 1 Bish. Mar. Div. & Sep., sec. 1667. Again, the mutual consent that will prevent a diVorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement: Olson v. Olson, 27 Pa. Superior Ct. 128. Applying the foregoing principles to the conclusions of fact most-favorable to the libelant which we are able to draw from the conflicting testimony, the court was clearly right in refusing the divorce. • ... Some time before the decree refusing the divorce was entered, a rule to show cause why the libelant should not pay the respondent reasonable alimony pendente lite and counsel fee was granted. On the same day that the decree was entered the docket entries show that by opinion filed this rule was made absolute. The opinion is not printed in the appellant’s paper-book, as it should have been if one was filed and the appellant intended to press the assignment of.error to the order. The counsel contends, however, that it was beyond the power of the court to make any order of that sort at the time it was made. We cannot agree to this proposition and do not deem it necessary to discuss it. The decree is affirmed and the bill dismissed at. the cost of George W. King, the appellant.

The opinion of the Court was delivered by Lowrie, J. We are asked to quash the writ, because the decision on the certiorari in the Common Pleas cannot be reviewed here, and, if it can, it must be done on certiorari. But we think these reasons are not sound; for section 22 of the hundred dollar law, preventing, writs of error to review the judgment of the Common Pleas on a certiorari to a justice of the peace, applies only to the jurisdiction given by that Act; and, because, though the proceeding before the justice of the peace was out of the course of tire common law, yet the certiorari suit in the Common Pleas was in the course of the common law, and it is properly reviewed on writ of error : 5 Binney 27. The Court below reversed the conviction, because the charge set forth in the complaint was not sufficiently definite in that it does not state the facts that constitute the offence. And such seems to be the rule laid down in the notes on Sander’s Case, 1 Saund. Rep. 262; and many cases are there referred to in support of it: 1 Stra. 66, 497; 2 Ld. Raym. 1220-1386-1415; 1 T. Rep. 125-127; 8 Id. 542; 1 East 639; 13 Id. 139; Comyn 522; 1 Burr. 148-613; and others were referred to on the argument: 2 Ld. Raym. 1265; 1 Salk. 680; 8 T. Rep. 536; 9 Queen's B. R. 80; but on examination it is ascertained that they all refer to the recital of the information or complaint in the record of conviction. There a defect may be fatal, because the judgment is usually that the defendant is guilty of the premises charged upon him, and thus the errors of the recital become, by reference, incorporated into and taint the judgment. There is no such defect in this conviction, and none such is alleged. The Courts are no longer astute in discovering defects in such proceedings: 2 T. Rep. 23; and when the charge in the complaint and summons is so specific as to give the defendant fair notice of the substance, time, and place of the offence charged, as is done here, it ought to be regarded as sufficient. And where the defendant appears and goes to trial, without any objection to the complaint and summons on account of indefiniteness, such a defect ought to be considered as cured: 3 Burrows 1785; 1 East 649. We must judge of the validity of this conviction by -what appears on its face; 5 T. Rep. 338; 6 Id. 538; taking the magistrate’s judgment on the weight of the evidence, 6 Id. 177, 375; 8 Id. 588 ; and going by this rule, we find a definite offence charged, the appearance of the defendant to answer it, a trial in his presence, evidence of the facts that constitute the offence, and an adjudication that the defendant is guilty of the offence as charged, and has incurred a defined penalty, being the one'authorized by law, and we must allow the conviction to be enforced. Judgment of the Common Pleas reversed and the judgment of the justice of the peace affirmed. Lewis, J., and Knox, J., dissented.

Opinion by Keller, P. J., This was a proceeding for support brought by a wife against her husband under the Act of April 13, 1867, P. L. 78. The defense was that the wife on July 7, 1933 had entered into a written agreement with the husband, which recited that due to marital differences she was about to leave his abode, and provided that the husband should pay his wife the sum of $1,100, ($600 down and the balance in monthly installments of $100 each, beginning August 1, 1933), and that she should have the furniture located in their home, 6739 North Car-lisle Street, Philadelphia, except one bedroom suit, one rug and the piano; and that “The above payments are only in lieu of and in full settlement of all claims which the said Norma B. McClenen now has, or in the future may have for support and maintenance of herself.” It was shown at the hearing, on behalf of the wife, that the agreement was prepared by the husband’s attorney and was signed by the wife at his office, without her being represented by counsel; that the husband had left her in 1932, and was then a coal broker in receipt of an income of about $6,000 a year — he admitted when called as on cross-examination, to an income of from $3,600 to $4,000 — and owned securities, coal land and other property, of what value was not stated; that she had lived in the homestead without heat, light or maintenance for a year and a half before she signed the agreement and at the time she signed it was told she would get nothing from him unless she did sign it and went back to her home in Columbus, Ohio; that she was also told that she must sign a deed for the house,. 6739 North Carlisle Street, as her husband wanted to sell it, but was not told, and did not know, that the title to the house stood in their joint names as tenants by entireties. This house was worth from $7,500 to $9,000 and was unencumbered. The husband did not sell the house but had it transferred into his own name and still retains it and lives in it. Of the wife’s present need for support, there is no question. Neither the husband nor his attorney took the witness stand and denied the testimony of the wife or presented evidence in rebuttal of it; but the court feeling that it was bound by the written agreement between the parties dismissed the proceeding, without going into the reasonableness of the agreement or the circumstances under which the wife’s signature to it was obtained, and without making any definite findings, with regard to them. The Supreme Court and this court have ruled in a number of cases that separation agreements between husband and wife are valid and will be upheld where they were entered into without fraud or coercion, were reasonable, and have been actually carried into effect in good faith. See Com. v. Richards, 131 Pa. 209, 18 A. 1007; Com. v. Smith, 200 Pa. 363, 49 A. 981; Frank’s Est., 195 Pa. 26, 45 A. 489; Adams v. Adams, 32 Pa. Superior Ct. 353; Hall v. Hall, 97 Pa. Superior Ct. 429. But the cases make it clear that the court has not only the right but the duty, in a proceeding of this kind, to inquire into the circumstances attending the execution of the agreement of separation and will enforce its terms only if it meets the conditions above stated. In Com. v. Richards, supra, the Supreme Court in reversing the court below, which had refused to give effect to such an agreement when presented as a defense in a proceeding under the Act of 1867, said (p. 220) : “If the deed of separation was fraudulently procured and the terms were unreasonable, or if after its execution it had become null and void by the acts of the parties, these facts should have been shown,” and awarded a procedendo, so that such proofs, if available, could be presented. In Com. v. Smith, supra, a similar proceeding, the Supreme Court said: “A deed of separation, not fraudulently procured, the terms of which are not unreasonable, and which has not become null and void by the acts of the parties, is a bar to a proceeding like this; but whether these conditions exist in any particular case, must always be, on all the facts as developed, for the court below, and not for us. The Superior Court properly entertained this view.” In that case, (see the fuller report in 13 Pa. Superior Ct. 358, 360) the lower court held that the terms of the separation agreement were not reasonable and its order, directing the husband to support the wife, was affirmed. In Com. ex rel. Isaacs v. Isaacs, 124 Pa. Superior Ct. 450, 454, 188 A. 551, Judge Rosen of the Municipal Court held that the terms of the separation agreement in that case were unreasonable. Of the cases relied on by appellee, Hall v. Hall, supra, was an action in assumpsit brought by the wife in enforcement of the agreement; and Adams v. Adams, supra, was a bill in equity brought by the wife for specific performance of the agreement. So was Stull v. Stull, 126 Pa. Superior Ct. 255, 191 A. 187. In Frank’s Est., supra, the agreement was upheld on the showing that the wife suggested the separation and dictated the terms of the article of separation after consulting with her sister’s husband, and because no fraud, coercion or concealment on the part of the husband was shown. She knew the property he possessed at the time of the separation, and there was no evidence that the provision made for her was unreasonable, or that the $60,000 estate of which he died possessed twenty-six years later was his at the date of the separation. We think the evidence of the wife, in this case, was sufficient to require an explanation from the husband and his counsel as to the circumstances attending the execution of the separation agreement, why she was not represented by counsel; some affirmative proof that her signature to the agreement was not obtained by coercion or fraud; and that the provisions for the support of the wife were reasonable, having regard to the income of the husband and the respective estates of the parties. Unless it appears from the testimony of the husband and his counsel that full and frank disclosure of the former’s financial circumstances was made to the wife, that she was fully informed of the nature of her estate by the entirety in the dwelling house which she was asked to sign away, and full explanation given of the circumstances attending the execution of the agreement, showing the reasonableness of its terms, by which for a cash payment of $1,100, and the retention of certain furniture she parted with all right of support for the future and also relinquished her equal interest in unencumbered real estate worth from $7,500 to $9,000, the agreement should not stand. And if it was brought about by threats or by a refusal to con tribute to her support unless it was executed, it should not be enforced as a defense in this proceeding. The execution must be voluntary, in the sense that it was not constrained by threats or necessity; there must be no fraud or withholding of information necessary to a fair and just decision on the question of its reasonableness. Since the Act of April 18, 1919, P. L. 72, the testimony taken in the court below is to be reviewed by us on appeal, as a part of the record, and we fail to find anything in the record which rebuts or explains the evidence of the appellant attacking the reasonableness of the terms of the separation agreement or contradicting her testimony of the circumstances indicating fraud and coercion in its procurement. The judge who heard the case seemed to feel that he was obliged to refuse an order of support “because of the fact that there is an agreement” (p. 25a), and, therefore, did not go into a hearing on the real matter involved, viz., whether the agreement, in the circumstances of its execution, was reasonable in its terms and had been signed by the wife without any fraud or coercion on the part of the husband or his counsel inducing such signature; and made no findings on these material questions of fact. In his opinion filed pursuant to our rule of court No. 58, the judge who heard the case went out of the record in this proceeding and referred to matters not before us for consideration, some of them apparently obtained from court investigators, who were not sworn as witnesses nor subjected to cross-examination, and whose reports should not have been given consideration by the judge in this proceeding: Com. ex rel. Ritter v. Ritter, 91 Pa. Superior Ct. 563, 565; Com. v. Varner, 103 Pa. Superior Ct. 149, 153, 156 A. 545; Com. ex rel. Mark v. Mark, 115 Pa. Superior Ct. 181, 182, 183, 175 A. 289. Furthermore, the judge attempted to do after the hearing what he had not done at the hearing, to wit, make findings in support of his decision. This he could not do. The orderly course was to have a full hearing on the merits, make findings of fact from the evidence received in court, and on the basis of those findings, enter a decision and order. The evidence of the appellant, in our opinion, was such as to require a full explanation of the transaction by the appellee and his counsel. The order is reversed and the record is remitted to the proper court for further hearing, findings of fact and order based thereon, in accord with the practice outlined in this opinion.

The opinion of the court was delivered, January 24th 1870, by Thompson, C. J. — One of the grounds for divorce from the bonds of matrimony contained in the Act of 13th of March 1815, is for wilful and malicious desertion, and absence of one party from the habitation of the other, without reasonable cause, for the space of, or during the period of two years. The applicant for a divorce on this ground must establish with sufficient certainty, each and every of these ingredients, as elements necessary to constitute desertion within the meaning of the act. They all must co-exist in proof, or no decree can be granted. Collusive applications for divorces are strictly forbidden by the statute, and, in order to guard against them, any presumption that such is the case must be negatived in the outset by the oath of the party applying, setting forth that the application is “ not made out of levity, or by collusion, and for the mere purpose of being freed and separated, * * * but in sincerity and truth for the causes mentioned in said petition.” Whatever, therefore, may be the grounds upon which an application is made, the libellant must, by his or her oath, make it appear to the court that for that cause, and for that alone, a divorce is desired and claimed. This is the applicant’s primd facie case, and it is made out when the petition is in form, and sworn to. But as in every other proceeding in law or equity, this primd facie case may be overturned or disproved. If it should be shown in any case that the application is not, in fact, based upon the grounds stated, but that the causes set forth are merely to advance a scheme or trick to make out a technical case to sever the bonds of matrimony, no court would permit the application to be successful. It would be against law, justice and truth to do so. Courts ought never to sever the marriage contract, but where the application is made “in sincerity and truth,” for the causes set forth, and no other, and fully sustained by testimony. In this view of the law, we think the learned judge below pushed a principle, which might be all right in some cases, too far, when he said, in view of the evidence in this case, “ that as to the suggestion that the libellant’s object in breaking up the establishment (his house) was to effect the separation, and effect the desertion of his wife, — this cannot be material so long as he provided a home, which he offered her. Even if he desired the separation, so long as he provided a home, and there was no consent on his part that she should stay from it, she was not justified in doing so, by apprehensions that she might not be so happy as she was at the old home.” This view overlooked the testimony in the ease in one important aspect, and prevented the jury from inferring from it facts of which it was full, in another. The alleged desertion of the respondent was attempted to be established by proof that after the libellant had broken up his home in the absence of his wife, without consultation, or any knowledge of an intention to do so communicated to her, she failed to go to quarters proffered to her at a boarding-house. He was, in point of fact, the first to desert. It must be remembered that he claims no desertion by proof against his wife, until after he had broken up their household establishment and left, and formally notified her to take possession of her share of the household goods. Was she bound to follow him if she had good reason to believe that his movements were solely with a view to force her to desert his habitation, and thus make a case for him? Was he not bound to exhibit a case of good faith on his part, in order to be entitled to charge bad faith on hers ? If the evidence were full to the fact that he desired to get rid of his wife previously to his giving up housekeeping, and that all that he did afterwards was to consummate that design, was he entitled to be divorced? Would that be a divorce applied for “in sincerity and truth?” viz., for the desertion of his wife, if he had labored and schemed to provoke that desertion? This cannot be, unless the necessity of possessing a good cause is no merit in a divorce proceeding. But this charge of the learned judge deprived the libellant of the inferences from the testimony, that the whole thing was concocted in fraud of the divorce laws; and his notification of a room for her at a boarding-house, was. but a part of a scheme to throw off the bonds into which he had voluntarily entered, and which, from caprice or other cause, had become annoying to him. She was entitled to such an inference from the testimony, if legitimate, and this was for the jury, but was forestalled by the above view of the law. There was no desertion from the habitation of the libellant by the respondent, and in this respect the ease is very different from the eases cited to show that if a wife deserts the habitation of her husband, or the husband turns a wife out of doors, that such acts can only be justified by reasons which would entitle the party to a divoree. Of this character are the cases of Eshbach v. Eshbach, 11 Harris 343; Groves’s Appeal, 1 Wright 443, and Gordon v. Gordon, 12 Id. 226. Here the libellant left without any cause or reason, as disclosed to his wife. The doctrine advanced was that she was bound to follow his footsteps, notwithstanding every act might persuade that he did not desire her association as a wife. If she failed to do so under such circumstances, after expressing herself entirely willing to do so, is wilful and malicious desertion to be inferred against her ? By first leaving his habitation, he gave his wife the opportunity of showing why he did it, and why and wherefore she did not follow; and if she could show by his acts and declarations that he in fact did not desire her to follow and live with him, would such a failure necessarily furnish a reason for an inference of wilful and malicious desertion from his bed and board ? In Bishop v. Bishop, 6 Casey 412, we held that wilful and malicious desertion was not to be inferred from a refusal on part of the wife to cross the ocean and join a husband who had broken up their household establishment and emigrated to America. We thought her case entitled to be considered in the light of the difficulties put before her by her husband voluntarily and without any controlling necessity, and that proof in addition to the absence of the wife, was necessary in order to establish the desertion to be of the character required by the Act of Assembly. We gave her the advantage of the presumption of innocence until the contrary should be established. Had she deserted her husband’s habitation without reasonable cause before he left England, a different case would doubtless have been presented. So indeed would it have been in the case in hand. For it has been held in the cases referred to, supra, that unless turned out by her husband, or leaving him for causes which would entitle her to a divorce, the desertion meant by the Act of Assembly would be inferred — for the act gives this effect to such absence without there be reasonable cause; and reasonable cause has been settled to be, such cause as would entitle to a divorce. Although the wife in this case might not be justified to the extent of entitling her to a divorce on account of the bad faith of her husband in breaking up his establishment with a design ultimately to force her to desert him, nor even to prevent him from obtaining one if she persisted in refusing to rejoin him if he desired her to do so in good faith; yet she might undoubtedly show that all that had been done in breaking up housekeeping by her husband, was with a view to put himself into a position to claim a divorce from her, as a good reason why she did not follow him to become the victim of his schemes. In such a condition of things, neither party could claim a divorce; their case would not be within the Act of Assembly. This sort of proof would be a mode of negativing the charge of wilful and malicious desertion. He could not claim a divorce based upon his own schemes to promote it. To allow this would be to permit him to do what the law forbids, namely, to take advantage of his own wrong. We think, therefore, the learned judge erred in the instructions referred to, and which we need not further discuss. We are also of opinion that the learned judge erred in refusing the offer of respondent to prove a series of “ humiliating language and opprobrious epithets addressed to her in the presence of her servants.” This testimony should have been admitted as pertinent to the question of the motives of the libellant in breaking up his household establishment, and to show that the object of the libellant in doing so was to force the respondent to refuse joining him in a boarding-house, or to compel her to abandon him in time, if she did. This was her theory of his actions and motives, and she was entitled to prove it if she could. If a jury would be bound to infer this from the testimony, it would present a case of fraud upon the law and upon the respondent, which ought and would prevent a divorce upon his application. I cannot for my life see why fraud and chicanery are not to have the effect to defeat a party practising them, in an attempt to rescind the marriage contract, as well as in every other case; yet it seems sometimes to be regarded as an exception to the rule that fraud vitiates whatever'it touches. Unless we regard a wife as possessing “no rights which the law is bound to respect,” we are bound to protect her against the fraud of her husband when it may go to affect her dearest rights, as we would against his force and violence. If a scheme be disclosed to get rid of a wife, by exposing her to insult before strangers, until she shrinks from and abandons her persecutor, is he to be rewarded by a rescission of his marriage bonds, just as if he had acted honestly, and she wilfully and maliciously? Verily, no. She may defeat his unworthy attempts by showing that her refusal to follow him was to avoid his schemes to get rid of her, and not through wilfulness and malice, with just the same effect as if she had gone to him and suffered, and endured, until she could endure no longer. The testimony offered was a step in the line of proof to show a scheme to get rid of the respondent, and when received, it might or might not have proved it, just as the jury might determine. But it ought to have gone to them. If fraud be admissible to be set up against such an application, and we have said it is, then ought the testimony to have been admitted on that ground. Great latitude of proof is allowable in an issue of fraud, or where it may be alleged and is material to be proved. Notice of the special matters to be given in evidence might have been required from the respondent beforehand, but it was not. And as there was no rule of court requiring it to be given, and no demand for it, we think the testimony was not properly rejected for the want of it, as the learned judge held. This is about what we ruled in Breinig v. Breinig, 2 Casey 161. In Garrat v. Garrat, 4 Yeates 244, a nonsuit was granted for want of notice of special matter, but with leave to take it off, which was afterwards done. It will be remembered that this was against the libellant, whose libel was defective in specification. There was surprise in that case, in offering new matter different from that disclosed by the libel. Nothing like that appears to have been claimed here. We think the want of notice of special matters not required by rule of court, or by any special order, was not a ground for refusing the evidence offered. It may be good practice to give notice or to call for it; it saves controversy: but if neither be done it would be a peculiar case which would justify a rejection of testimony on the ground of want of notice, when that is for the first time suggested in the midst of a trial. Such we think was not this case. The reasons thus given as to these two complaints of error are sufficient to require us to reverse the decree of the court below. Must we send the case back to be retried on the issue? We think not. When we inspect the record there was, properly speaking, no issue in the case within the meaning of the Act of Assembly. A jury seems to have been sworn to try the case between the libellant and respondent, on the libel and answer. But the Act of Assembly provides for a jury, only, when either party shall desire any matter of fact, which is affirmed by one party and denied by the other, to be so tried. That does not appear by the facts as presented to have been the case. The jury was brought in, seemingly, as assistants to the court, when they were really not necessary. The decree was by the court, on bill, answer and proof, and is here on appeal, and subject to be disposed of as if no jury had sat in the case. We will therefore dispose of the case as we conceive the merits under the evidence require. We are of opinion, from a careful consideration of all the testimony, and drawing all legal inferences from it, that the libellant is not entitled to claim a divorce from his wife. We think it shows that the application was not made “in sincerity and truth,” for the causes set forth, viz., the desertion of the wife; but that that as a cause, so far as shown and claimed, was the result of the management, scheming and colorable conduct of the applicant. W e hold that where such conduct has reacted on the conduct of the wife, so as to keep her absent from her husband, who has left her and her abode, it necessarily meets the allegation of wilful desertion, and deprives him of the right to claim advantage of certain acts and conduct which he has promoted and designed. Like in all other cases in equity, the applicant must be rectus in curia; have a good cause, and the respondent a bad one. This must always be the case where the divorce is resisted. The party who wouldiwin in such a contest must be clear of everything which is charged as a cause of separation against the opposite party. We will refer to a few of the facts disclosed by the testimony, observing that no portion of it not noticed specially does in the least, in our opinion, raise a counter current to that produced by the facts to be noticed. In the summer of 1866, the respondent being absent at Newport with the assent of the libellant, he suddenly commenced to break up his residence, and on being remonstrated with for doing so by the respondent’s father, he made as an excuse, the statement that his establishment was too expensive for his circumstances. To obviate this, Mr. Smith offered to undertake to defray all the expenses of his daughter, the respondent, and eventually proposed to pay rent for the house in a sum equal, as it turns out, to that for which the libellant rented it to another party, viz., $2000 per year. Met as to the objection of expense, the libellant declared in substance that it was useless to insist on him to keep the establishment, “that they,” meaning himself and wife, “ could not live happily together,” exclaiming, “why don’t she give me a divorce, or grant me a divorce ?” This, unexplained, cannot but be regarded as the key-note to all his after conduct. • He proceeded to break up the establishment, and on the 30th of August 1866, addressed to his wife, who had been absent, with his consent, as already seen, for some time, the following note: “Mrs. Angier: I have taken rooms and board for you and myself at Mrs. Neilson’s, N. W. corner of Broad and Locust streets. On Monday next they will be ready for occupancy. Please have the furniture belonging to you removed from 2031 Walnut street (former residence), or give me such directions as may be necessary about it. There are certain articles about the house belonging to me which I will remove. Yours, truly.” To any mind, and especially to a wife’s, this would mean sepaaration, if words mean anything. It wag "withdrawal on his part, and a setting off her goods and chattels to her, as if it were no longer intended that she was to live with him, and with a personal reclamation of his own from their joint possession, for his own enjoyment and use. Their home was thus broken up, when its occupancy might have been continued almost without expense, and his wife notified in the coldest manner, of rooms taken, and to be “ ready for occupancy on Monday next.” No one could make out of this a desire on his part for the society of his wife. She could read nothing but a wish for separation, interpreted in the light of his impatient exclamation of a desire for a divorce, and his refusal of indemnity against expense by his father-in-law, who was amply able to make it good. This offer she could hardly believe was refused from delicacy and a disinclination to avail himself of gratuitous support from friends. She must have known that he had been the recipient of very large sums already from her father and brother, amounting in the aggregate, as his schedule in bankruptcy shows, to between thirty and forty thousand dollars. The respondent replied to this note within a day or two, and remonstrating against his breaking up their home without knowledge or assent by her; reminding him of past unkind treatment at home, and after all this, desiring to take her to a boarding-house, “where,” as she says, “strangers might be witnesses to the treatment she had been so long subject to:” she concluded by saying, “ I intend returning (from Newport) on Saturday, ready to return, to you whenever you express a wish to that effect, and provide a suitable residence.” Neither to the charges of bad treatment or the offer to return did the libellant ever reply, either to assure her he wished her to come to, and live with him, or that he had procured a proper residence for her. She did not decline to join him, but wished some sign or token that it was desired, and that a fit place was provided. If he had desired her presence after having broken up her home without consulting her, it was his duty to have said so; but he did not, and in two days after her return to the city to the house of her brother, without a sign or a wish that she should follow him, he charges desertion upon her. Without recapitulating the facts in proof further, it is apparent, we think, that the boarding-house project was a scheme to effect a separation. He rented his own house, in which they had lived, for $2000 per year, and took rooms at Mrs. Neilson’s, at the rate of $2000 a year. There was no great economy in this, especially as he was offered to be indemnified against every expense of his wife, at his old residence. It is evident therefore he did not expect nor wish that his wife should come to the boarding-house and live with him. This seems plain from his whole conduct, but especially does it appear from the testimony of Mrs. Neilson, of whom he engaged rooms. She says “ he engaged two rooms for himself and wife, with the understanding that if she (his wife) went to Europe, his father was to come in her stead!” Where this idea originated of her going to Europe, we are not informed by the testimony, but are obliged to presume that the rooms were not taken with any intention of their ever becoming the home of his wife. This, and numerous other things in the testimony show such an apparent case of management and scheming on part of the libellant to provoke desertion on part of his wife, as acquits her of the charge of wilful and malicious desertion, and proves him guilty of practising such bad faith in exhibiting his bill for a divorce from the bonds of matrimony, as required the court below to dismiss his bill as unfit, under the testimony to be granted. Considering the case on its merits, as we have done, we do not find that the libellant has made out any such.case of wilful and malicious desertion of the wife as is required in law to be the foundation for a decree of divorce, but are constrained to conclude from the evidence, that whatever of desertion there was in the case was brought about by the acts of the libellant himself, and that he is not entitled to the decree he seeks. Decree of the court below is reversed, and the libellant’s bill is dismissed at his costs.

The opinion of .the Court was delivered by Huston, J. I shall content myself with noticing those matters in this-long record which are material to the cause trying. The first bill of exceptions contains matter which, if doubtful, ought not to continue so. The witness was called to prove what two persons, now dead, swore before arbitrators in this cause at some time before 1825—1826, when the last of them died. There had been a former trial of this case in December 1828, at which the same witness had been called to prove the same matters in substance ; viz. that these two persons had sworn, that at the time their father accepted the deed and gave the bond in question to Withers, he, Withers, had said there was not a judgment against him under the canopy of Heaven. The witness at this trial was admitted, upon his swearing that he could remember all that the deceased witnesses had sworn. After his examination in chief, he, on his cross-examination, said, “ I do not remember that, at a former trial, I testified, as now, on there being no judgments against Withers; but I remember now they did testify that before the arbitrators.” After some more questions, to which he answered, he did not remember what any other witness than the-two deceased swore, he said, “ the reason why I remember what the Jltkinsons swore and not the others, they were my neighbours, and frequently heard them mention it over since. The matter which principally strengthened my memory since is George Jacobs’s notes, which I have seen frequently since;” and again, says, he saw Jacobs taking notes at the arbitration, and believes Jacobs took notes of all the evidence, &c.; that he saw those notes in Jacobs’s office. The plaintiff then offered to ask the witness, Did you hear George Jacobs admit in court, when examined as a witness, that the only notes he had, were memoranda of what he expected to prove, made by him before the arbitration 1 The defendant objected; the court overruled the question, and exception taken; and this decision is attempted to be supported by saying G. Jacobs was alive and could have been sent for and examined. Most clearly the question should have been put. Mr Jacobs, or somebody else, had shown those notes to the witness, who had frequently read them, and impressed their contents on his memory, under a belief that those were notes of what the witnesses swore before the arbitrators, taken down at the time of swearing; but if Mr Jacobs had afterwards said much more, if he swore at the former trial of this cause that he had no notes of what witnesses swore before arbitrators, it would show that the witness had been shown as notes of testimony, writings which were no such thing; and if he did hear Mr Jacobs swear in 1828 that he had no notes, it is strange that he did not recollect it, when something purporting to be notes of the evidence was shown him, and more strange, that he would persist in calling them what he heard Mr Jacobs swear they were not. But. as the cause goes back, it is important that an opinion on the whole subject should be given. It is not, as a general rule, true, that a man called to testify what witnesses, sworn at a former trial, said, can refresh his memory by wbat a third person, or the witness himself, has since told him was sworn. He is called to testify, and can only be admitted to testify, what was said on oath in court; he can not substitute for this what has since been said by the same person when not under oath, or said by any other person not under oath. The witnesses were dead before the former trial in 1828; he could have no conversations with them since their death, and his memory was not refreshed by any such means, he therefore says, his memory was principally refreshed by Mr Jacobs’s notes, which he has seen frequently since. This is worse than the other. A witness cannot be permitted to refresh his memory by notes or memoranda made by any other person than himself, except perhaps in a case, where he looked over the writer, and saw at the time that what was written was written correctly; or where he, immediately after it was written, read it over and found it correct; and where he can positively swear, that the paper to which he refers to refresh his memory is the very one he saw written, or which he read immediately after it was written; and I make these exceptions with a perhaps. That matter is not before us, and not agreed; but it is out of the question, that a man who sees another taking notes of testimony shall be heard to testify what he did not remember until he read those notes. Where a man who took notes can refresh his memory by referring to them, or where he can read them, is settled by decisions of our own courts; but there is no decision, no principle, and I believe no dictum, that a man may in a case like the present refresh his memory by reading what was written by a third person, and not seen by the witness for years after it was written. If then this testimony had come out before the witness was examined in chief, he ought to have been rejected; and coming out afterwards, the jury ought to have been told to disregard it totally. The next two bills of exception are taken without any cause. The agreement between the Messrs Withers and Atkinson, was made in 1818. The articles of agreement drawn by G. Withers, contain as full and fair covenants as. can be devised. The agreement continued open till April 1820, Atkinson having taken possession in November 1818, and making partial payments every two or three months. It must then be perfectly immaterial in this stage of the cause, and in every other, whether the contract commenced in consequence of Atkinson proposing to purchase, or in consequence of Withers proposing to sell; and it must be equally immaterial whether Withers advised Atkinson to purchase, or did not advise him; and yet these are made the subject of two bills of exceptions. Before I come to what is called the important point in the cause, it must be understood that Mr Black was employed to survey the land and draw the deed, and did both. He was offered to prove, that since the deed was executed, an alteration had been made in the date of it; or, in other words, to prove that it was drawn and executed in the year 1819, whereas, it now purports to have been executed and acknowledged 1st November 1818. This testimony was objected f o, but admitted and exception taken. It was rightly admitted; he was the scrivenerwho drew the deed; one of the subscribingwitnessesto it, and the justice of the peace before whom it was acknowledged. The evidence, when admitted, was most unsatisfactory; he was twice examined ; he swore positively that the deed was drawn, and executed in 1819; but on what day, or even in what month, he could not tell. There were three grantors, Michael Withers, George Withers and wife, and John Withers and wife. The parties lived ten or twelve miles apart, and he took the acknowledgement of George and wife on one day; John and wife on another day, and Michael at a different time and placé : yet the acknowledgement was but one, and purported to have been all of the 1st of November 1818. John Fullmer was the other subscribing witness, and rode round with him, and saw all of them acknowledge as well as the justice did. I do not say there was really any thing wrong or very uncommon in this; a different course, however, might have been taken. Jltkinson was not present, and the deed was not then delivered to him; it was delivered to him on the 1st April 1820, when he paid some more money, and gave the bond on which this suit is brought. In drawing the deed, the scrivener had left a blank for the day and month. As the deed was, these were filled with 1st November; and at the examination he thought this was done in the deed by G. Withers, and in the acknowledgement by J. Fullmer, and this at the time the deed was executed. Afterwards, he was called again, and says, “ I cannot say precisely when the deed was acknowledged, except from the date in the deed. The reason why I believe the date in the deed was altered, was because I have never been in the practice of antedating any deed which has been executed by me. I am under the impression the deed was left blank, it was not dated 1st November 1818: as respects the year, I have no doubt; it was in the year 1819 it was executed.” Immediately after, he says, “I have thought on this matter, and have endeavoured to recollect the truth; the word c November’ was written at the time I drew the deed, and not at the time I took the acknowledgement;” and again he says, “ the date in the acknowledgement was filled up by Fullmer at the time I took the acknowledgement.” It was apparent the letters “ eigh,” in the word eighteen, were written on an erasure. This was not discovered at-the trial of this cause before arbitrators, nor till five or six years after the commencement of it. Many men of more experience, and as careful as Mr Black, have witnessed deeds and taken the acknowledgement of the grantors and their wives, without ever looking at the date of the. deed; and it was no imputation on his integrity that he did not look at it; nor was it any imputation on his memory, that in 1830 he could not recollect all that he knew in 1819. I shall show that this matter was not so material as seems to be supposed by the complainants. It was assumed, but without very conclusive evidence, that the word nineteen had been changed to eighteen in the date of the deed, since the execution and acknowledgement, and that it was done by G. Withers, or by Fullmer, who was in his employ. Now the only proof was, that Fullmer had been in Withers’s employment some years before. Fullmer was dead before this discovery was made. When Atkinson was able to pay what he had agreed as the first instalment, viz. 1st April 1820, the deed was given to him, and he gave his bond for the residue of the purchase moneys soon after he took the deed and had it recorded; it was then as it, is now. The first witness, on whose admission I have commented, swore that at the trial before arbitrators, two sons of the. defendant were examined, and proved that when G. Withers brought the deed to their father on the lst.of April 1820, and when defendant executed this bond, G. Withers said there was not a judgment against him under the canopy of heaven; and there were many judgments against him, as appears by the records produced ; though it was admitted none of them had ever been levied on this land; and also, that before the trial all were paid and satisfied. On the other hand it was proved, and at length admitted, that George Withers, at the time the deed was delivered and the bond given, did tell Atkinson there were two large judgments against him, and also delivered to Atkinson a release of the tract in question, from the lien of those judgments.’ Every thing was denied, and testimony given after a very tedious trial, proving all alleged on one side, and the other, if believed. As is the custom here, certain propositions were stated to the court, on which they were requested to lay down the law to the jury. The first point made by defendant’s counsel was rightly abandoned here. The law on that subject is settled by this court in Cassel v. Cook, 8 Serg. & Rawle 293, and many other cases. Where the suit is on articles of agreement, before deed delivered and bonds given for the purchase money, before the plaintiff can demand- the money or recover the penalty in debt for the money, it behoves him to tender a good and sufficient conveyance. It is different after a deed is delivered and accepted, and a bond is given for the purchase money, which is itself at law a consideration; and where the obligor must go into equity for relief, if the consideration has failed, or the contract has not been complied with. The second, third and fourth points are in substance tbe same, and assert that the vendor is bound to - acquaint the purchaser with incumbrances; and if he do not, or if he informs him falsely, he is guilty of a deceit: that if the vendor states an untruth as to this matter, the contract is void, and cannot be confirmed by any subsequent declarations or acts by which its fairness is acknowledged; and if this was the case here, the facts, that Atkinson took possession of the. land, has enjoyed it ever since without molestation from any one, and has sold part of it, do not alter the case, or make him ’liable to pay the purchase money. There is no subject on which we find so much in the law books as the fairness of contracts; and if we were to judge from their arguments in court, no subject on which men of -talents and learning have such vague and strange opinions. The above is a fair statement of the positions laid down in this cause: which seem to blend the case, where a man, who has been guilty of fraud in making a contract, seeks to carry into effect such fraudulent contract, without rectifying or allowing for the advantage he has obtained; with cases where the contract has afterwards been completed by both parties, and where the defect complained of was remedied and removed by him who concealed it before the other suffered from it, nay, before he knew of it. It seems also to blend the cases under and within the statute of fraudulent conveyances, which declares deeds within its provisions utterly void and of no effect against creditors, with frauds in other cases, in which Lord Coke tells us, the common law rectifies what is amiss and leaves the rest as the agreement left it. I certainly do not intend to be the apologist of fraud or misrepresentation in contracts, or in any situation in life; but, except in this and the two adjoining counties, I have never heard it contended, that if a man in selling a tract of land made any wilful mistatement repecting it, although no injury has resulted to the vendee, that he thereby forfeited his tract of land, and that the right to it at once vested in the person to whom he stated the falsehood, without the payment of any purchase money. When a contract is avoided for fraud, it is avoided throughout; it is as if it had never existed ; and the property is in the vendor as if no such contract had ever been made; and the vendee if he has paid money recovers it. This applies to contracts not completed, more generally than to those which have been carried into effect; and there are very few instances in which it can be applied to cases in which the purchaser has received the possession and caiinot restore it to the vendor. In such case, the purchaser is compensated by recovering damages for the injury he has sustained from the misrepresentation. Without attempting to write a system upon conveyancing, and upon the effect of fraud on contracts executory or executed, I will refer to a few authorities and principles which will settle this case. In the first place, the books are full of distinctions between defects and incumbrances on an estate which are secret, and those which are open and palpable, which a purchaser can discover, if he will look for them, and the difference between the register counties in England and the other counties, in the former of which the purchaser can find all or nearly all possible incumbrances. Sugden states, that although the vendor or his agent states there are no incumbrances, or none but such as he has given a list of, yet it is proper to search for judgments and mortgages immediately before the deed is executed. Sugd. Vend. 302. Next he tells us, if an incumbrance be discovered before the deed is executed and delivered, and the purchase money paid, the vendor must discharge it, if the vendee so insist, whether the purchaser has or has not agreed to covenant against incumbrances; or the vendee may refuse to accept the deed, and in case of false representations may recover any expenses incurred in the course of the purchase. Sugd. Vend. 312. Or if he has accepted the deed, the purchaser, if he has not paid, may retain the purchase money until the incumbrance is paid off. Sugd. Vend. 312. So if the purchaser had paid the money, but deeds are not completed, he may refuse to accept the deed, or to enter on the land, or if he has entered, may restore the possession and sue for his money; and this though he was not entitled to a covenant against the incumbrance discovered; but, if the deed has been executed, and the money all paid, and the covenant in his deed do not extend to the incumbrance as a defect of title, he is without redress. If the covenants do pxtend to it, his remedy is on them. The writer then discusses a point immaterial in this country, viz. whether, after having accepted the deed and given bonds, the purchaser can retain for incumbrances not discovered by him, and against which he has no covenants; and be comes to the conclusion that he cannot at present in England, unless he can prove that the vendor knows of the incumbrance or defect; and then he may recover compensation at law by an action on the case, or have relief in equity. But there is no intimation there, or any where else that I know of, that the damages at law or the relief in equity is more than compensation for the injury; and of course, if no injury, as in this case, where the vendor paid off the incumbrances before any injury was sustained, nay, so far as we know, before he was threatened with injury, the compensation would be what the injury was, that is, nothing. I have said that this discussion is not material here; because it is now settled in this country, as it was formerly in England, that the purchaser may retain for incumbrances or for defect of title, where he has not paid the purchase money, even though he has given bonds for it. See Steinhauer v. Witman, 1 Serg. & Rawle 438, 447. Hart v. Porter, 5 Serg. & Rawle 204. This last case has settled also what ought to have governed this case on this point, viz., that until the incumbrance is removed, the purchaser may defend himself, though he has no covenant against incumbrances; but, that if the incumbrance is removed after suit brought on the bonds of the purchaser, from that time it ceases to be a defence to the purchaser, and the vendor can recover on his suit, but must pay the costs up to the time when the incumbrance was removed, and notice of it to the purchaser. This case has been repeatedly recognized since. I shall notice the alleged dower in the wives of John and George Withers hereafter. The fifth, sixth, eighth, ninth and tenth points relate to the alterations alleged to have been made in the deed; as does also the seventh, which I shall notice separately. These points, in substance, amount to this; that any alteration in a deed avoids it, without inquiry who altered it, if the alteration is made after acknowledgement before a justice, though before delivery; and in an immaterial point, still it avoids it, and releases the defendant from payment of his bond; that the alteration by George Withers, or by his procurement, avoids it, as the deed of John and Michael Withers, and Atkinson would have no remedy against them on his warranty ; that the alterations leave it subject to all liens to this day against Michael and John Withers; and that the delivery of such altered deed to Atkinson was a fraud, and discharged him from all liability to pay his bond. This is a full summary of the points, except that the counsel request the court to state that the facts, as well as the law, are as they state them. The subject of alteration of deeds is a wide field, into which I do not propose to enter, further than this case requires; because the only evidence that this deed was altered, as to its date, is, when fairly examined, no more than just this; that Mr Black at that time did not look at the date in the deed, or if he did, he does not now remember it; and his impression is, that if he had seen the date he would have objected to it; and because, in the view I shall take of this matter, it has little bearing on this cause. I shall say, that I approve of the modern cases, which do not' destroy a deed because the mice have nibbled off the seal, or because accident has defaced a part of it, or fire or water destroyed it-. We have provision in our laws for supplying the loss of a deed. I also argue that the courts ought so to decide, that every man who is a party to a deed should be deterred from any alteration in it after it has become a deed, by making it void, as to him who altered it, and leaving it effectual to vest the estate of the other party. In short, that when a jury find that one of the parties has altered a deed, after it became effectual by delivery, he shall never support a suit on that deed. But that, although the deed is altered after delivery by the grantor, and although he thereby loses all benefit of the covenants-contained in it, still the alteration does not vest the estate in the grantor. This doctrine is not only well established by ancient and modern authorities, but consonant to reason. If the owner of a deed alters it in any way, it becomes void as to him. Pigott's case, 11 Co. 27; Shep. Touchstone 57, 68, 69. The modern cases say, an alteration by a stranger, though material, will not have this effect; Jackson v. Malin, 15 Johns. 297; Rees v. Overbaugh, 6 Cowen 746. But altering the deed by the grantor operates not to divest an estate which has passed by it. “ A deed of revocation, and a mere deed of settlement by that deed, though after the sealing and execution blanks were filled up in said deed, and deed not read again to the party, and not resealed and executed, yet held, a good deed.” Paget v. Paget, 1 Rep. in Cha. 410. I have quoted the whole of this case, and I understand it as deciding the deed good to pass the estate; it is so understood by the annotator to Co. Lit. 225, 226, and is the case there referred to as being in 1 Rep. in Cha. 100; but at page 100 there is nothing on that subject. And in more modern times, in Hatch v. Hatch, 9 Mass. Rep. 311, we find the same doctrine; and Lewis v. Payn, 8 Cowen 71; and the cases there cited, some of which I have examined, and others I could not, at this time. I establish this position, that if a deed be altered after delivery, the alteration destroys the deed as to the party who altered it, but does not destroy the estate, if the deed contain covenants, the party altering it loses all remedy on them; but the title is not divested. I omit the distinction, taken in Lewis v. Payn, as to incorporeal rights which lie in grant, and estates passing the realty, as not material here. In that case there were counterparts, each executed by both parties, one of whom altered the part in his possession, and would have lost all remedy on it if that had been the only deed, but his right was saved by the other deed, which remained unaltered. It wpuld indeed be strange, if the grantor of a tract of land could make the title void as to the purchaser, by altering the deed after execution, and before delivery, so that it would pass for nothing, and leave the land for his heirs or creditors, after he was paid for it; and this in consequence of his own act. If it contained covenants in his favour, he would lose all benefit from them; but it does not re-vest the estate in the grantor, nor take from the purchaser the benefit of any covenants in his favour. So if the purchaser alters the deed after it is delivered to him, he loses all benefit from the covenants in his favour; but it does not destroy his title, or revest the estate in the grantor. The case in 8 Cowen, just cited, is full to show that it is the instrument altered which is rendered void as to any benefit to be derived to the party- who altered it; and that, where he has no other evidence to support his claim than the altered deed, he could not recover, having by his own act destroyed the evidence of his own demand; but that if he has other evidence of his claim, besides the deed he has erased, or to which he has made an addition, he may recover on that other evidence. There the landlord had altered the lease by a material addition, and would have failed in recovering the rent claimed on that lease, in that suit, but for the production of the counterpart by the tenant. The common pleas decided that he had lqst his rent entirely; the supreme court corrected that decision, and said he could recover on the counterpart. And the principle of that decision, and of all the cases cited, is, that even admitting the date to have been changed after the execution and acknowledgement, but before delivery, the alteration does not affect the estate, of Atkinson the purchaser; and that the alteration of the deed does not avoid any other instrument relating to the same estate, except the identical one altered. The bond then remains as good as ever, and ought to be so; if the estate of Atkinson is unimpaired, why should he-not pay the purchase money? But it is said the alteration by George avoids it as to John and Michael. Now George was either their agent, entrusted by them to keep and deliver the deed, in which case his act is their act, and will no more avoid the deed as to them, or prevent the estate passing from them, than from passing from himself. Or he was not their agent, and not entrusted by them, in which case it is an alteration by a. stranger, as respects them, and the alteration will affect no one; especially as, under the circumstances of this case, it was a perfectly immaterial alteration. This view of the case makes it unnecessary to say whether—as a deed passing land has no validity until delivered, and is, until delivery, of no value, and has no- effect or operation—it may not be altered by the grantor at any time after execution and before delivery; and whether, if this were fully proved, it would have any effect on the validity of the deed for every purpose. Some of the cases cited seem to put it- on being an alteration after delivery, and as it is no deed until delivered, I see no reason why the law should not be so; but-the point whs not argued—is not necessary to be decided, and I choose to give no opinion on the subject'. It remains to notice the seventh point proposed to the judges, as to the effect of the alteration, if made after the acknowledgement on the estate and interest of the wives of John and George Withers. The deed, independent of their acknowledgement, does not pass the estate of the wives; if it is not as it was at the time of the acknowledgement, then it is not the deed .they acknowledged, and their estate would not pass. This I say in consequence of the case in Burrow’s Reports. If it were not for that case, I could not find any very good reason why—if the land, and consideration, and estate granted, continue the same, and these are the only matters material in their examination which ought to be known by them, or made known to them—their estate should not pass, by reason of an immaterial alteration unknown to them; but I am contented that case may stand as an authority, and in this respect there was a defence to the bond. But by the decision of Hart v. Porter, 5 Serg. & Rawle, before cited, and since repeatedly recognized, the plaintiff, on procuring new deeds of release, by John and George, and their wives, duly acknowledged, and delivering them to the defendant, can recover in this suit, on paying the costs up. to the time of delivering the release; or he may discontinue, and, after delivering such releases, recover in another action on the bond. The law on the effect of misrepresentation as to incumbrances, and as to the effect of the alteration, even admitting that it was made by G. Withers, or by Fullmer at his instance, was not correctly stated, as applied to the facts of this case. Judgment reversed, and a venire facias de novo awarded.

Opinion by Mr. Chief Justice Horace Stern, There are two questions involved in this appeal: (1) Does the ordinance of the City of Philadelphia of December 9, 1952, imposing a so-called mercantile license tax, include in its coverage members of the bar engaged in the practice of their profession? (2) If so, is the ordinance unconstitutional as an interference with the judicial branch of government? The ordinance in question is entitled, “AN ORDINANCE To provide revenue by imposing a mercantile license tax on persons engaging in certain businesses, including manufacturing, professions, occupations, trades, vocations, and commercial activities in the City of Philadelphia; ...” “Business” is defined as meaning “the carrying on or exercising for gain or profit within the City of Philadelphia of any trade, business, profession, vocation, ... or of any manufacturing, commercial or financial activity, service or business, ... .” It is provided that “. . . every person desiring to engage in or to continue to engage in any business shall, ... in each license year, . . . procure a mercantile license for each of his places of business in the City, from the Department of Licenses and Inspections which shall issue the same upon payment of a fee of three (3) dollars for each place of business in the City.” The ordinance, after establishing the rates of the annual tax to be paid by wholesale dealers, dealers who sell both at wholesale and retail, and manufacturers, fixes three (3) mills on each dollar of the annual gross volume of business transacted as the rate to be paid by “all other persons engaged in business.” For failure or refusal to- procure a- mercantile license required under the ordinance there is provided a penalty of- fine and of imprisonment in case of default in the payment of the fine. Plaintiff’s complaint sought an injunction against the City and its officials from enforcing against attorneys at law the license and tax provisions of the ordinance. The court below granted the injunction and defendant appeals from its decree. 1. Did the ordinance intend to include in its coverage members of the bar engaged in the practice of their profession? There are words in the title and in the definitions section of the ordinance that compel an affirmative answer to that question. The title states that the tax is imposed on “certain businesses” but including, inter alia, professions, occupations and vocations. Then, in Section 1, “business” is defined as the carrying on of “any . . . profession, vocation, . . . service or business.” It would seem plain, therefore, that the intention of the ordinance was to impose the tax, notwithstanding its designation as a “mercantile license tax,” on professions, occupations and vocations as well as on mercantile establishments, an intention given strong emphasis by the fact that “business” is defined as carrying on or exercising for gain or profit of any “service or business.” It is a familiar canon of construction of statutes and ordinances, as indeed of contracts, wills, and other written instruments, that presumably every word, sentence or provision therein is intended for some purpose, and accordingly must be given effect. It is argued that a so-called “mercantile license tax,” merely because of such designation, can be applied only to those engaged in trade or business, but we have frequently held that the name given to a tax is far from conclusive in determining its real nature. It is the substance of the law or ordinance, rather than the designation or name given it by the legislative body, that is controlling in that regard: Flynn v. Horst, 356 Pa. 20, 27, 29, 51 A. 2d 54, 58; Armour & Co. v. Pittsburgh, 363 Pa. 109, 112, 69 A. 2d 405, 407; national Biscuit Co. v. Philadelphia, 374 Pa. 604, 615, 98 A. 2d 182, 187, 188. A legislative body may, in a statute or ordinance, furnish its own definitions of words and phrases used therein in order to guide and direct judicial determination of the intendments of the legislation although such definitions may be different from ordinary usage; it may create its own dictionary to be applied to the particular law or ordinance in question. It was entirely competent, therefore, for the ordinance to include professions in its definition of “businesses” in order to explain the coverage it intended by its use of the latter term. In National Biscuit Co. v. Philadelphia, 374 Pa. 604, 609, 98 A. 2d 182, 185, it was stated, concerning this same ordinance, that while, ordinarily, mercantile license taxes have been imposed only upon merchants, there was neither law nor reason why a tax, even though so designated, could not be extended to persons otherwise engaged, and it was pointed out that the Acts of May 23, 1949, P. L. 1669, and May 10, 1951, P. L. 265, were in fact almost as broad as this ordinance and defined the word “business” in nearly the same language; also that the Pittsburgh Mercantile License Tax which was the subject of discussion in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A. 2d 849, imposed liability upon persons engaged in many non-mercantile operations. In fact, the appellants in the national Biscuit Co. case included insurance agents and brokers, and we held that they were liable for the tax under this ordinance. Nor may it be amiss to add that, in a broader sense, a professional man “sells” his services for a financial consideration just as a business man sells his merchandise, although his activities are attended, in the case of the lawyer or doctor, with a certain measure of idealistic and altruistic motivations which do not necessarily pertain to the market place. Plaintiff suggests that what the ordinance contemplated in regard to those engaged in professional activities was that the tax should apply, not to income derived from services rendered, but merely to receipts from sales transactions, if any, incidental to the practice of their professions, — in other words, not to their professional but to their non-professional activities. In support of that proposition plaintiff points to such cases as Commonwealth v. Lutz, 284 Pa. 184, 130 A. 410; Biser’s Appeal, 317 Pa. 190, 176 A. 200; Commonwealth v. Dinnien, 320 Pa. 257, 182 A. 542; Commonwealth v. Pennsylvania Heat & Power Co., 333 Pa. 46, 3 A. 2d 412; Commonwealth v. Miller, 337 Pa. 246, 11 A. 2d 141, in all of which the tax involved was held to apply to sales of merchandise — fixtures and supplies by a plumber, medicines by a pharmacist, caskets and shrouds by an undertaker, oil burners by a heat and power company, and eyeglasses by an optometrist — but not to apply to the skilled or professional seryices rendered in connection with those sales. In all those cases, however, the tax was levied under statutes which expressly imposed it only on vendors of, or dealers in, goods, wares and merchandise, and not, as in the present case, also upon those engaged in professions, occupations and vocations or rendering service. The cases thus relied upon by plaintiff are, therefore, not at all in point. We are, then, clearly of opinion that the ordinance here in question was intended to include those engaged in professions — and therefore lawyers — in its coverage. 2. This brings us to the second question: Is the ordinance, when so construed, unconstitutional as an infringement upon the independence of the judicial branch of government? Two propositions bearing upon that question are self-evident. One is that the privilege of practicing law carries with it no exemption from the duties of citizenship, including the sharing with all others the expense of government, national, state and municipal; lawyers pay federal income taxes, state personal property taxes, municipal real estate and net profits taxes the same as all other persons. The other proposition is that lawyers are officers of the courts and it is solely from the courts that they derive the authority to practice their profession; the legislative branch of government, whether state or municipal, can neither grant nor revoke such authority, nor prescribe or in any manner interfere with their functions and activities, nor regulate the conduct of their practice. If, therefore, the present ordinance involved any encroachment upon the judiciary it would represent but a vain attempt on the part of the municipal authorities to exercise a power which they do not possess; (Hoopes v. Bradshaw, 231 Pa. 435, 487, 80 A. 1098, 1099.). The question, therefore, is whether the tas which it imposes does constitute any such encroachment upon, or interference with the judiciary thereby violating the constitutional separation of power among the three branches of government. In deciding that question we must be careful not to be misled merely by inept terminology. Thus the ordinance requires the payment, of a fee of JS3.0Q. for procuring a “mercantile license.” Taken literally, the word “license” would connote the granting of a permission, and, since a mercantile license tax is on the privilege of doing business, it might offhand appear that the obtaining of a license is made a prerequisite or condition for the right of the taxpayer — in this case the lawyer — to continue in the practice of his business or profession. But nothing could be further from the truth, for it is too clear for discussion, and indeed we have definitely held, that the charge of $3.00 is not in fact a “license fee” but a registration charge, — a mere procedural device to establish the identity of those who, by reason of their occupations, are subject to the tax, the $3.00 being merely to cover the clerical expense of the registration and issuance of the license certificate: Armour & Co. v. Pittsburgh, 363 Pa. 109, 112, 113, 69 A. 2d 405, 407; National Biscuit Co. v. Philadelphia, 374 Pa. 604, 616, 618 (footnote 4), 98 A. 2d 182, 188, 189. It need scarcely be said that an attorney at law requires no license, other than from the courts, to practice his profession; indeed merchants also, for that matter, have the legal right to conduct their business operations without license by governmental authority save only in the case of certain special businesses which, because of their nature, are subject to the police power, as, for example, the sale of liquor. But the important and indeed the controlling point here is that a lawyer’s right to engage in, or continue to engage in, the practice of his profession is not conditioned upon his procuring the so-called, license or paying the tax imposed by the ordinance, nor is it in any manner regulated or affected thereby; if lie fails or refuses to carry out any of the duties imposed upon him therein the only penalty is that which applies ordinarily to all other tax measures, namely, an entry of judgment and execution against his property, fine and possibly imprisonment for making false or fraudulent statements on a return or wilful default in filing one. In short, the ordinance is purely a revenue measure; it does not interfere with, or seek to exercise any power or authority over, the rights and obligations of the lawyer as an officer of the court or in the pursuance generally of his professional practice; in those respects it nowise differs from all the other taxes which lawyers now pay in common with their fellow citizens. And it may well be asked, What is the practical difference between a revenue tax on income or gross receipts, admittedly valid, and a revenue tax on a privilege measured by that same income or gross receipts? It would be a work of supererogation to cite the numerous cases in other jurisdictions which, with little if any break in their unanimity, hold that while, as members of the bar, their admission to practice and their professional conduct after admission are essentially matters to be regulated by the judiciary department of the government, as members and citizens, on the other hand, of nation, state and city, their rights, privileges and immunities, as well as their duty to pay their share of the expenses of government like those of any other citizen, are controlled by the laws and ordinances of the political body of which they are a part and from which they receive protection. . The contention that they are exempt from municipal li: cense, privilege, or occupation taxes lias been consistently denied by courts and text writers alike, as shown by the authorities collated in the annotation entitled “Validity of municipal license, privilege, or occupation tax on attorneys” in 16 A.L.R. 2d 1228 et seq. See also 18 L.R.A. 409; 5 Am. Jur. pp. 268, 269; §12; McQuillin, Municipal Corporations, (3rd ed.) volume 9, p. 293, §26.130. In the United States Supreme Court as early as the case of Royall v. Virginia, 116 U. S. 572 (1886), a license tax on a lawyer was held to be an occupation tax for which the so-called license was “merely a receipt and not an authority,”— nothing more than a mere form of imposing a tax for revenue and not an exaction for purposes of regulation. The court there said: “In the case of Humphreys v. The City of Norfolk, supra, the Supreme Court of Appeals of Virginia, referring to the previous case of Ould v. City of Richmond, said: ‘The objection was made in that case that a power to license involves in its exercise the power to prohibit without such license; and that such power vested in a municipal corporation is incompatible with the rights of attorneys conferred by their general license to practice in any and every part of the State. This objection did not prevail. Judge Anderson, upon this point, speaking for the entire court, conceded that the city authorities could not prohibit attorneys at law, already licensed, from practicing their profession within the city limits. The exercise of the vocation was, however, a civil right and privilege, to which are attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the State and by municipal corporations. . . . ‘The principles settled by that case/ continued the court, ‘are decisive of this. In neither case is the attempt made to prohibit the exercise of the business or vocation. The license required by the corpora tion is merely a mode of assessing tlie tax; if it be reasonable and just, it matters but little by what name it is called.’ ” Since the right of the municipality to impose this tax on lawyers is challenged on the ground that it is an invalid interference with their activities as officers of the courts, the charge is somewhat analogous to that long made against the right of the federal government to tax the salaries of state officials. The view originally prevailed that such tax was an unconstitutional encroachment upon the independence of the state government and an interference Avith its capacity to perform its functions. But in Graves v. New York ex rel. O’Keefe, 306 U. S. 466, the United States Supreme Court, taking a more practical view of the problem, reversed the earlier decisions so holding. It is argued that if the municipality be conceded the power to tax members of the bar on the privilege of conducting their professional activities, so great a tax might be imposed as to make it difficult, if not impossible, for them to continue in practice. But, apart from the fact that a similar argument Avould be equally applicable to all other tax impositions, the famous cliché of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 431, that “the power to tax involves the power to destroy,” questioned by Mr. Justice Holmes in his dissenting opinion in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223, has been practically abandoned as being an unrealistic legal pronouncement. Plaintiff makes some attack on the ordinance on the ground that its title is constitutionally defective. In the National Biscuit Co. case, however, we said that such criticisms did not merit serious discussion. Decree reversed and bill dismissed; each party to bear its own costs. The title is part of a statute or ordinance and, as such, must be considered in construing the enactment: City Stores Co. v. Philadelphia, 376 Pa. 482, 487, 488, 103 A. 2d 664, 667, and cases there cited. In that connection there comes to mind the phrase attributed to Lincoln and prominently framed in many lawyers’ offices, that “A lawyer’s time and advice are his stock in trade.” Commonwealth v. Harrisburg Light & Power Co., 284 Pa. 175, 178, 130 A. 412, 413; Blauner’s, Inc. v. Philadelphia, 330 Pa. 342, 346, 347, 198 A. 889, 892; Commonwealth v. McKinley-Gregg Automobile Co., 345 Pa. 544, 546, 28 A. 2d 919, 920; Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 457, 57 A. 2d 849, 850; National Biscuit Co. v. Philadelphia, 374 Pa. 604, 612, 613, 98 A. 2d 182, 186. Davis v. Ogden City, 117 Utah 315, 215 P. 2d 616. Among the eases so reversed was Collector v. Day, 11 Wall. 113, which had held that it was not competent for Congress to tax the salary of a judicial officer of a state.

Opinion by Mr. Justice Bok, The Commission, plaintiff, ordered suspended for four months the license of appellant defendant, a real estate broker. This action was taken under §10(a) of the Act of May 1, 1929, P.L. 1216, 63 PS §440(a), as amended, which allows the investigation of challenged affairs of real estate brokers and the suspension or revocation of their licenses for certain specified acts. By the same Act, at Section 10(d), 63 PS §440(d), as amended by the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 PS §§1710.41 & 1710.51, the decision of the Commission is reviewable by the Court of Common Pleas of Dauphin County. On appeal to it, that court considered and dismissed appellant’s appeal from the order of the Commission suspending his license, and he then appealed to the Superior Court, which, with Judge Woodside abstaining, divided evenly and hence sustained the Dauphin County court without opinion. Shortly after, we allowed allocatur. Appellant was charged with and found guilty of three of the thirteen violations enumerated in §10(a) of the Act, 63 PS §440(a). These were: (1) Knowingly making a substantial misrepresentation ; (5) Failing to account for or to pay over moneys belonging to others, which had come into his possession arising out of a real estate transaction; (7) An act or conduct in connection with a real estate transaction that demonstrates incompetency, bad faith, or dishonesty. Since we feel that the case was wrongly decided and must be reversed, we take note that the Dauphin County court stated in its opinion its belief that the conduct of appellant showed no dishonesty and that he had made no substantial misrepresentation. We will therefore search the record for a showing of a failure to pay over money belonging to others, of incompetency, or of bad faith, remembering that the Real Estate Broker’s Law is penal and must be strictly construed: Trott v. Hild, 190 Pa. Superior Ct. 85 (1959), 151 A. 2d 832. The ground facts are that a man named Hudson wanted to buy a house. The owners of one in Potts-town, Montgomery County, had engaged appellant to sell theirs, and the latter’s salesman showed it to Hudson. When he liked it, the salesman turned him over to appellant Keller. The owners wanted $6500 for the property but finally agreed on $6000, with G.Í. financing. To support the finding of the court below that there was no misrepresentation, Hudson testified as follows about the amount of down payment to get G.I. financing: “A. Well, on a $6000 home, to my knowledge, it was $600 plus the settlement charge of approximately $200 more. Well, I had that much.” It then appeared that Hudson had lost his Service discharge papers, which were needed to get the government financing, and he therefore signed an agreement of sale and paid $100 down. Appellant signed the agreement as agent for the owners and also signed and gave Hudson a receipt for the $100 on account of the $6000. Further, he put the $100 in his escrow account at once. The agreement of sale contained two pertinent provisions. One was: “This sale is subject to obtaining Veterans’ Administration financing.” The other was: “Settlement to be made on or before 60 days after financing has been arranged and said time is hereby agreed to be the essence of this agreement. Should the buyer fail to make settlement as herein provided the sum or sums paid on account are to be retained by the seller, either on account of the purchase money, or as compensation for the damages and expenses he has been put to in this behalf, as the seller shall elect, and in the latter case this contract shall become null and void and all copies to be returned to seller for cancellation.” From May until early September appellant Avorked on getting Hudson’s discharge papers and also a certificate of entitlement shoAving Hudson’s right to the Service loan. These papers had to be in hand before the financing could be arranged. When they had been secured, appellant took Hudson to Mr. Erb, Vice President of the Philadelphia National Bank in PottstOAvn, and this gentleman’s written statement was offered in evidence by agreement. It said, pertinently, that Hudson “desired us to finance a $5400 VA mortgage on a property he was buying . . . for a reported consideration of $6000.” He then explained to Hudson that his bank Avas limited in taking VA mortgages, that it normally granted them only to its customers, and that he should have $600 “representing the balance of his down payment, on deposit” before the loan could be approved. Erb, looking up Hudson’s deposit in the bank, found it to be less than $50. His statement ended: “The loan avus available to Mr. Hudson provided he had the $600 on deposit at the time he made the application.” It appears that Hudson was then dissuaded from the purchase by his father, for he later bought another property elsewhere. In breaking off the deal with appellant, it is agreed that Hudson went to appellant’s office and signed the following paper: “It is agreed that I no longer have any interest to purchase the property of Theodore Reed at 179 Sheridan St., Pottstown, Pa.; therefore, my One Hundred ($100.00) Dollars deposit is forfeited previous to 60 day agreement of sale that expires September 10, 1956”. Appellant drew up this paper on the advice of counsel. Hudson gave this as the odd reason for signing it: “I thought I was doing something radically wrong in holding off like that with a man in business, so I didn’t know what to do. I never dealt with nothing like this before.” After Hudson signed the release just mentioned appellant drew the $100 out of his escrow account in three checks, $50 to the owner-seller because he had put down that amount to buy a new home and had to forfeit it when his deal with Hudson fell through, and $25 each to his salesman and himself. The court below based its action upon findings of fact (1) that appellant did not secure the Service financing to float the loan and close the sale, and (2) that Hudson demanded the return of the $100 from appellant, who refused. The answer to (1) is that the agreement did not require appellant to secure five cents’ worth of financing. The mere fact that the sale was made subject to financing cannot be tortured into the conclusion that appellant should, at his peril, have found it. The evidence, au contra ire, is that he brought the deal to a boil but that Hudson jumped out of the pot when his father persuaded him to do so. In fact, the in ference is clear, from Hudson’s statement to Erb, that he had the balance of down money at home, and from Erb’s statement that the mortgage was ready for him when he deposited it, that Hudson alone unwound the deal. The answer to (2) is that appellant had a perfect right to refuse the return of the $100. Hudson directed and approved it by signing the release, which appellant drew on the advice of counsel. This is not a case of our being bound by basic findings supported by competent and substantial evidence. Such findings, even when fully credited, give no support to the action of the Commission and the court below. Beyond this, there is no shred of bad faith or incompetence in appellant’s actions. He segregated the $100 and later repaid it rather obviously in obedience to an agreement with the seller-owner: he and his salesman gave service for the amounts appellant retained for the two of them. He acted on advice of counsel, and no act of his was covert or despoiled. He is entitled to a clear quittance. The order of the Superior Court is reversed, and so is the order of the Court of Common Pleas of Dauphin County. The record is remanded to the latter court with directions to enter judgment for appellant after ordering the restoration of his license. Appellee to pay the costs.

Kennedy, J. The admission of the evidence complained of in the first error assigned, was certainly right. The circumstance of another action pending between the parties for the same cause, was not a sufficient objection to it. If two actions be brought for the same cause at the same time by the plaintiff against the defendant, he may plead the one in abatement of the other, and by this means abate them both. Pie v. Cook, (Hob. 128. S. C. Moore, 864, pl. 1193.) 1 Roll, Abr. 353. 39 H. 6, 13. pl. 16 per Prisot, Justice, cited 5 Mass. 179, in note. Mayor, &c. v. B. (1 Freem. 401. pl. 526. S. C. 3 Keb. 491.) 3 Burr. 1434. Com. Dig. Tit. Abatement, Ib. 24. Beach v. Norton, (8 Conn. 71.) But if one action be commenced before the other, the defendant may abate the second by pleading the pendency of the first; and unless he plead it in abatement, he cannot take advantage of it, because it forms no bar to the plaintiff’s right of action, and therefore cannot be given in evidence under the general issue, or any other plea in bar. Beyond, however, the vexation of having two suits on hand, to attend to at the same time, the defendant cannot be prejudiced; because after atrial and judgment rendered in one of the actions, no matter if it be the first or the second, in respect to the time of its commencement, he may plead such judgment puis darrein continuance, in bar of the other, and thus protect himself against all liability in it. Garvin v. Dawson, (13 Serg, & R. 146.) The taking and carrying away the willows were charged in the plaintiff’s declaration as part of his complaint; and after evidence given on the trial tending to prove the fact, the evidence objected to, was certainly material to the issue, and therefore properly admitted. The second error is not sustained either: because even admitting that the Court were wrong in refusing to permit the receipt to be read in evidence, still they may be • considered as having corrected their error afterwards, by admitting it. The counsel for the plaintiffs in error, however, allege, that their clients were prejudiced, notwithstanding the subsequent admission of the receipt in evidence: because in consequence of the Court’s refusing to permit the receipt to go in evidence to the jury when first offered, they say, that they were compelled to adduce John Lentz, jr. as their witness, who was unfavourably disposed towards them, and in his testimony gave a colouring to the case, in some respects, that was untrue and calculated to prejudice the jury against them: also, that the plaintiff below, who, as they believe, intended to adduce Lentz as a witness on his behalf, by this gained an advantage that he could not have had in case he had called him first, by drawing from him all the testimony he wished, in answers to hading questions. It may be that it was no disadvantage to the plaintiff below, that the plaintiffs in error called John Lentz, jr. as their witness, but still it cannot be said with propriety, that the Court below compelled them to do so. If they were convinced that the Court was wrong in refusing to permit the receipt to be read in evidence when first offered, they ought, after taking their bill of exceptions to the opinion of the Court in this behalf, to have passed Lentz by, and to have proceeded with their other evidence; and if they lost the cause, then to have brought their writ of error. It will not do then, to say that they were forced by the decision of the Court, to call Lentz as their witness, because it was clearly at their option to do so or not as they pleased. But seeing that there was no evidence given, when the receipt was first offered, tending to show that it was given, or had an existence before the trespass was alleged to have been committed, I am inclined to think that the Court was right in rejecting it; for to have admitted it to be read in evidence to the jury upon proof merely that John Lentz junior’s name, which was subscribed to it, was in his handwriting, would have been a pretty dangerous kind of testimony, especially as Lentz himself was still in being and present, who at least could be called to testify, how the fact was; whether it was given at the time of its date, and whether the facts contained in it were true or not. For any thing that appeared to the Court, when it was first offered, it might have been manufactured within the last hour immediately preceding, between Krider and Lentz, for the very purpose of being offered in evidence, without there being a word of truth in any thing set forth in it: this being the case, it appears to me that it was properly rejected when first offered. We also think there is nothing in the third error assigned. As Lafferty, the plaintiff- below, was no party to the receipt, he was not estopped from gainsaying the truth of the matters alleged in it. It was competent therefore for him to show, if he could, that it was all a fiction, or a contrivance between Krider and Lentz, made for the purpose of defrauding him of his just rights: and this he was at liberty to show by the evidence of Lentz himself, as well as that of any other; for Lentz, not being a party to the suit, could be coerced at the instance of either party, to testify to any thing within his knowledge that was material to the issue. If the receipt was a misrepresentation of the matters set forth in it, no one could know it better than Lentz; and therefore as regarded knowledge on the subject, no body could be better qualified to testify: And even if it had been concocted for a fraudulent purpose, he would have been bound to have disclosed it, provided it were material to the issue: His being a party to the fraud, would not have excused him from giving evidence of it, as long as it were of such a nature as would not subject him to criminal punishment. The authorities cited by the counsel for the plaintiffs in error, showing that written agreements or instruments cannot be altered, changed or contradicted, have not the least application: the rule laid down by them is only applicable to cases of controversies between the parties to the agreements, their representatives, and those claiming under them, but not to strangers; whose rights and interests would truly be in peril if the rule were to be extended to them, in such manner as to conclude them from giving evidence tending to contradict such agreements. The fourth error embraces the answers of the Court to six points submitted on the trial by the counsel for the plaintiffs in error; in each of which they allege the Court erred. • • • The first is, as to the effect of the deed given in evidence by the plaintiff, as evidence of his title to the locus in quo. The counsel of the plaintiffs in error, requested the Court to instruct the jury that it conveyed a fee simple to the defendant in error; but the Court entertaining a different opinion, told the jury that it did not pass a fee. In this I think the Court was mistaken; for the deed in express terms passes the land to Lafferty, his legal heirs and representatives, re serving a rent of fifteen dollars to be paid by the said LafFerty or Ms legal heirs, annually, to the said John Lentz, his heirs and assigns. The Court seems to have overlooked the words of inheritance in the deed, which certainly set forth the quantum, of estate intended to be conveyed; and to have taken up the idea that as the word “ let” is the only term used by the grantor in the deed, to part with his interest in the land, it was not sufficient to pass a fee simple, though words of inheritance were used in connection with it. Now it is well settled) that the construction of a deed must be as favourable and as near to the minds and apparent intent of the parties as it is possible it may be, and the law will permit: for benigne sunt fadeuda interprelationes chartarum, propter simplidtatem laicorum. Et verba intentioni, non e contra, debent inservire. Shep. Touch. 86, Co. Litt. 314, (b). The words in a deed are not the principal thing to be attended to, but the design and intention of the parties. 3 Atk. 135. Plowd. 160. And accordingly, if the intent of the parties appears, the law will construe the words in such sense as to perform that intent, rather than in any other sense. Plowd. 154. The Court below, seems to have thought that a conveyance of land in which the word “let,” alone, was used, to pass the interest intended to be conveyed, must necessarily be what is strictly and technically called a lease; which Sir Wm. Blackstone says must always be for a less time than the lessor hath in the premises. 2 Bl. Com. 317. And therefore something less than the fee simple, which was the most the grantor could have in the premises, passed by it. The usual words of operation, and as it is said, most apt in a lease, are “ demise, grant and to farm let.” Shep. Touch. 266. Co. Lit. 456. 2 Bl. Com. 317, 18: and the latin words, when leases were drawn in that language, were “ dimisi, concessi, et adfirmam tradidi.” 2 Bl. Com. 317, 18. The word “ let,” may therefore be considered a translation of “tradidi,” which is from trado, signifying, “ to deliver, give, or yield, to deliver up, to surrender, to resign, to put into one’s hands,” áse., and would seem to be quite as appropriate to show that it was the intention of the vendor or grantor, to part with and transfer a fee simple estate to the vendee or grantee, when accompanied with a limitation to the heirs generally of the latter, as the words, “ do” or “ dedi,” which are considered to be the most apt to be used in a deed of feoffment in fee, (2 Bl. Com. 310,) the most efficacious mode in some respects, of conveying land, known to the law. Shep. Touch. 204. Co. Lit. 9, a. 49, b. But it is certainly a great mistake to suppose that the words considered most apt for any particular species of conveyance, or indeed, that any of then), are at all necessary to the making thereof; for Lord Coke says, “whatever w’ord amounteth to a grant, may serve to make a lease.” Co. Lit. 45, b. The word “demise,” he also says, “is applied to an estate either in fee simple, fee tail, or for term of life, and so commonly is taken in many writs.” 2 Inst. 483. So the words “ bargain and sell/’ are not necessary to constitute a deed of bargain and sale, in order to pass a fee simple or less estate in land, under the statutes of uses and the statute of 27 Hen. 8. c. 16, requiring such deed to be enrolled within six months after its date, if the estate conveyed be a freehold ; other equivalent words will be sufficient to make land pass by way of bargain and sale; such as the words “ alien or grant,” “ demise and grant,” or if the owner of land “covenant to stand seized of his land to the use of another;” these will all amount to good bargains and sales, if made for a pecuniary consideration or one of pecuniary value, though ever so small, even a barleycorn. Shep. Touch. 222. 2 Inst. 672. Fox’s Case, (8 Co. 186.) Barker v. Keat, (1 Mod. 262, and 2 Mod. 249.) It is perfectly clear then, from the authorities oil this subject, as well as from the very structure of a deed conveying land, when the words “ enfeoff, give, grant, alien, bargain, sell, demise, let,” &c. or any of them are used, that it is not to express or to designate in the slightest degree, the quantity of estate intended to be conveyed, but merely for the purpose of passing from the seller to the purchaser, the estate therein described, by other words introduced specially for that end, giving to it, either the character of a fee simple, fee tail, term for life or lives, or for years: as for instance, if it be a fee simple that is intended to be transferred, the words “ his heirs,” must be inserted immediately after the name of the purchaser, for they and they alone, are sufficient to make it such according to Littleton, sec. 1. The word “ let,” in the deed in question, according to the rules of construction already mentioned, must also be considered sufficiently operative to pass the fee simple in the land, if from the whole tenor of the deed itself, it appears to have been the intention of the parties to use it for that purpose. That John Lentz intended to convey by this deed, some estate in the land to Daniel Lafferty cannot be doubted; and that the word “ let,” was used for the purpose of passing that estate or interest, whatever it was, admits of as little doubt, because it is the only word used to which any meaning of the kind can or ever has been affixed; and if the other words of the deed are to be regarded as they must, for in construing deeds or instruments of writing, effect must be given to every word used therein, if it can be done consistently with the other parts thereof; it is evident that the interest and estate, thereby conveyed, were not only intended to be enjoyed by Daniel Lafferty himself, but also by his heirs generally,.without any restriction or limitation whatever; which cannot be without giving to Lafferty a fee simple estate in the land,subject however to a fee-farm-rent, as it is termed by Littleton, sec. 216 and 217; or a perpetual rent, as it is called by Mr. Hargrave, in his note 5 to Co. Lit. 143, 4; and with us usually called a ground rent in fee. And indeed it appears to me that the deed in this case, as a conveyance of the land in fee, is about as perfect as the form that was adopted and prescribed by an act of the Assembly of the Province of Pennsylvania, two or three years after it was granted to William Penn, passed the IOth of March, 1683, which is in these words, to wit: “ A. B. of, &c. the day of from him and his heirs, grants his acre of meadow land, with all its appurtenances lying in, &c. toC. D. and his heirs, for the consideration of fifteen dollars yearly rent, to be paid to A. B. and his heirs and assigns, upon the day of In witness whereof, he sets his hand and seal.” See Hall and Sellers’ vol. of the Province L. appendix, 9. The word “ grant,” is used in the form thus prescribed, instead of the word “ let,” which at most is but a verbal difference, and cannot change the character of the deed as a conveyance of the land, or its effect.. The counsel for the plaintiff in error'also, in reference to this deed, requested the Court to instruct the jury, that if it were not a conveyance of the fee simple, but a mere lease of the land, it was void for uncertainty, on account of the time of its duration not being mentioned. The Court, however, declined giving such instruction to the jury; and on the contrary advised them, that taking the deed in connexion with the conduct of the parties, of which they had parol evidence given to them, they might consider it a lease from year to year: this is also complained of by the plaintiffs in error, as being incorrect; ' and no doubt it is so, as has already been shown in the opinion advanced, that a fee simple passed by the deed. If, however, the counsel had asked the Court to instruct the jury, that the deed was void for uncertainty, in not describing the land intended to be conveyed, so as to enable its precise location to be ascertained, there would have been more colour for it at least. But still I do not think that they would have been available: for notwithstanding this uncertainty, yet it was capable of being rendered certain by the subsequent act of the parties, if not by the act of the vendor alone. For instance, if one grant me three acres of wood toward the north side of his wood, this is a good grant and certain enough. Shep. Touch. Tit. Grant, page 250. So if one be seized of two acres of land, and he doth lease them for life, and grant the remainder of one of them, but doth not say which, to J. S.; in this case if J. S. makes his election, as to which he will have, the grant of the remainder to him will be good: or if a man having six horses in his stable, grants me one of them, without saying which, I may choose which I will have; and having made my election, and not before, the grant is good. See Shep. Touch. Tit. Grant, page 251. Perkins, sec. 74, 76. According to the principles of these authorities, the location of the land granted by the deed, was reduced to certainty afterwards, by the act of the parties in setting it offby metes and boundaries, and by the act of the grantee in taking possession of it in the lifetime of the grantor, by and with his consent. But, still, notwithstanding the Court erred in their instruction to the jury as to the nature and effect of the deed, it becomes neces sary to inquire, whether any injury could arise therefrom to the plaintiffs in error, for unless they may have been prejudiced by it, with the jury; it is not sufficient cause for reversing the judgment. The effect of the charge of the Court was to induce the jury to consider Lafferty as a tenant of the land only from year to year, in place of being, a tenant thereof in fee simple. Now I am utterly unable to perceive any benefit that the plaintiffs in error could have derived from a direction of the Court to the jury, that the deed passed a fee simple estate in the land to Lafferty, that they were not entitled to claim, in the case of its creating only a tenancy from year to year. Admitting the distinction taken by the counsel for the plaintiffs in error, between a tenant in fee and a tenant from year to year, to exist in favour of a bona fide purchaser for a valuable consideration, still with what propriety could the counsel ask the Court to assume the fact, contrary as I conceive, to the testimony of the witnesses on both sides, that Krider was such a purchaser; and to instruct the jury that the title of Lafferty must, therefore, give way to him. This, had the Court done so, would not only in effect have been a withdrawal of the decision of a matter of fact from the jury, but would have been a decision of it by the Court, contrary to a body of evidence, which went to prove very clearly, that the fact was otherwise. Though Lafferty had never put his deed on record, yet it appears from the testimony of the witnesses of both parties, that he had been in the actual possession and enjoyment of the acre of land from the year 1816 to the time of the trial, and of course was in the actual possession thereof, at the time Krider became the purchaser. When Lafferty bought, it was meadow, and part of a larger tract of land, owned by John Lentz at the time. Lafferty, it seems, was a basket-maker; and immediately after his purchase, the ground being set apart from that owned by Lentz, he took possession of it, planted it with willows, for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it, and cutting them every year at the proper season. This visible change in the appearance and occupation of the ground could not wrell fail to attract the notice of the neighbourhood; and hence it would seem, that all the witnesses who had resided within the same, for any length of time, had become acquainted with Lafferty’s occupation of the ground. His possession then being sufficiently distinct to be notorious, was sufficient to put Krider upon his inquiry, as to the right, under which Lafferty held the possession of the land; and being sufficient for that purpose was good notice in equity. Smith v. Lowe, 1 Atk. 490. Sug. Vend. 743. This case, as presented by the evidence, is not like the case of Billington v. Welsh, (5 Binn. 129,) to which it has been compared by the counsel for the plaintiffs in error. Welsh had never had the fifty acres of land, which he alleged he bought of Turner, laid off by survey or separated in any way from the residue of Turner’s land. Turner had erected iron-works on his part of the land, and various dwelling-houses and other buildings for the accommodation of the persons in his employ, and for carrying on his business; with which the buildings and improvements of Welsh, to the eye of the spectator, were apparently connected, and seemingly formed a part thereof; so that there was no distinct unequivocal possession of the land by Welsh, as there has been here by Lafferty. Under such circumstances it is obvious, that it would have been erroneous on the part of the Court, and have been doing great injustice to Lafferty, to instruct the jury as requested by the counsel for the plaintiffs in error. They might have made a question as to what would amount to notice to Krider, of the right of Lafferty to the land; and whether such facts and circumstances had been proved as were equivalent to it; but it would seem as if they were unwilling to encounter it; and wished to have it assumed as being in favour of their clients. The charge of the Court then, in regard to the nature and effect of the deed, though erroneous, yet being more favourable to the plaintiffs in error, as we conceive, than their counsel had any right to claim, does not furnish a sufficient ground for reversing, the judgment. As Lafferty acquired a fee simple estate in the acre of land, on which the trespass is alleged to have been committed, by the deed from Lentz to him, the questions embraced in the 3d and 4th points submitted by the counsel for the plaintiffs in error, to the Court below, were not material to the issue, and, therefore, require no further notice. In regard to the 5th point: we think there was no ground whatever for asking the Court to instruct the jury, as was done by it, that in case they found for the plaintiff below, the damages ought to be merely nominal; as the trespass committed, if any, was unintentional. Krider, one of the plaintiffs in error, under whose authority the others acted, being notified expressly by Lafferty of his right to the land and the willows, persisted in going on with the trespass and taking the willows away, after they were cut, in place of tendering amends for the injury done. It was certainly not an unintentional trespass, but one of design, committed under colour of right, which has been attempted to be vindicated throughout: Lafferty, beside the loss of his property, must have been put to considerable expense in asserting and establishing his right: and I am, therefore, not satisfied, but it was a proper case enough, to be left by the Court to the jury, to decide whether damages beyond the value of the willows taken, and the injury done, if any, to the freehold, ought not to be given : nominal damages, merely, were out of the question; for it would have been error, as it appears to me, in the Court, to have suggested less than compensatory. In regard to the sixth point; Lafferty being held to be the owner of the land, on which the willows grew and were cut; and being in the actual possession of it, there can be no question, but he had a right to allege in his declaration, in addition to the breaking and entering of his close, the cutting, taking and carrying away of the willows there found growing; and having alleged it, it was competent for him to prove it, if he could; and if he proved it, he was entitled to recover damages, equal to the full value of the willows at least, as well as for the injury done to the freehold; hence the Court committed no error in their answer to this point, that could injure the plaintiffs in error. The judgment is affirmed.

Opinion by Hirt, J., Ward Wheelock Company of Philadelphia is an established advertising agency. In January 1951 through a Mr. Congdon, vice president of the company, claimant was engaged under an oral contract as a “copy writer” for its Campbell. Soup account at a substantial annual salary. She was assigned to the development of new ideas for the presentation of Campbell Soups through advertising media. The task called for constructive thought and the exercise of imagination and originality in exploring new avenues of approach, all within legitimate claims which could be made for the product. She severed her employment on June 13, 1951. On that date her note to Mr. Congdon consisted in this cryptic statement: “I have resigned from this agency.” No reason was given for her resignation. On September 10, 1951, claimant registered for work in New York City and thereafter filed claims for 24 weekly benefits against her former employer in Pennsylvania. The Bureau, the Referee, and the Board of Review in succession all found that she was ineligible for benefits under §402(b) of the Unemployment Compensation Law, as last amended, by the Act of May 23, 1949, P. L. 1738, 43 PS §802. - The reasons assigned by claimant for terminating her employment are not entirely consistent. In her application for benefits she stated: “I quit this job because I was prevented from executing tbe job for which I was hired ... I was hired as a woman copy writer to do the advt. work for Campbell’s Soup Co. I found that the ideas for which I was hired were not utilized as they should be. I quit because the work produced would affect ,my future employment possibilities.” Elsewhere, she stated: “When hired, I accepted the job on the terms I was to work with one person [Mr. Congdon] on copy. Within a short period the copy matter was being handled by several people with the result that I couldn’t do a creditable job . . .” In her testimony she amplified' the statement thus : “. . . in other words I would not have put myself in the position for people who are not trained copy people . . of working under those people as copychiefs. Mr. Congdon is the only man I consider a’ competent person to be a copychief . . .” In a letter to the president of the company she commented on “clashes between personalities that seem impossible to resolve” referring to her experience in submitting copy to a Mrs. Heffer-nan as directed by her superiors. And finally, in her testimony before the Board, she referred to physical ailments brought about by nervous tension as additional reasons' for her ending her employment. The Board of Review from the testimony of the employer’s witnesses properly found: “Claimant was hired as a copywriter by Mr. Robert Congdon, whom she considered to be her superior. Although Mr. Congdon would check over somé of claimant’s work, she was nevertheless hired on the basis that she would be subject to the regular company policies of having her copy checked by other reviewers, as well.” And ón a further finding that claimant voluntarily resigned because dissatisfied oh that score, concluded that claimant voluntarily left her work without good cause and accoi*dinglv was disqualified'under §402(b). " ■ The findings upon which the Board’s conclusion logically is based, are amply supported by the evidence and we are powerless to disturb them. Findings of fact by the Unemployment Compensation Board which are sustained by competent and substantial evidence are conclusive and in the absence of fraud are binding upon us on appeal. Section 510 of the Act, as amended, 48 PS §830. Franke Unemployment Comp. Case, 166 Pa. Superior Ct. 251, 70 A. 2d 461. Since the findings in this case are supported by the evidence the exercise of our jurisdiction in this appeal is confined to questions of law. Stillman Unemployment Comp. Case, 161 Pa. Superior Ct. 569, 56 A. 2d 380. Under §402 (b) an employe is ineligible for compensation for any week “In which his unemployment is due to voluntarily leaving work without good cause.” Claimant terminated her employment voluntarily. A continuation of her work was open to her; she was not discharged. In Sturdevant Unemployment Case, 158 Pa. Superior Ct. 548, 557, 45 A. 2d 898 we said that to constitute good cause “the pressure of real not imaginary, substantial not trifling, reasonable not whimsical, circumstances [must] compel the decision to leave employment.” And as stated differently, termination of the employment must be. compelled by “necessitous circumstances”. Cf. Kaylock Unemploy. Compensation Case, 165 Pa. Superior Ct. 376, 67 A. 2d 801. A claimant in asserting good cause must show good faith. “There can be no good cause which does not rest in good faith.” Brilhart Unemploy. Compensation Case, 159 Pa. Superior Ct. 567, 49 A. 2d 260; O’Donnell Unemployment Comp. Case, 173 Pa. Superior Ct. 263, 98 A. 2d 406. In principle the present case has much in common with Seroskie v. Unemploy. Compensation Board, 169 Pa. Superior Ct. 470, 82 A. 2d 558 where an employe quit his job because he was assigned to an operation.' with- an Assistant other than one of his choice with whom he previously had worked. . Even if wé cumulate all of the reasons advanced by claimant, she still has. failed to meet the burden upon her of establishing good cause, within the intent of §402(b) for termination of her employment. Wolfson Unemployment Compensation Case, 167 Pa. Superior Ct. 588, 76 A. 2d 498; Novel Unemployment Compensation Case, 174 Pa. Superior Ct. 179, 100 A. 2d 118. Decision affirmed.

Opinion by Mb. Justice Mitchell, That a legacy which fails, either by lapse or because void ah initio goes into the residue, is conceded; but in England there is a firmly settled exception, which is thus expressed by Sir William Gbant in Leake v. Robinson, 2 Mer. 392: “ Everything which is ill given by the will does fall into the residue ; and it must be a very peculiar ease indeed in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue itself he ill given.” And accordingly, it was held in Skrymsher v. Northcote, 1 Swanst. 566, that a lapsed portion of a residuary bequest went to the next of kin, and not to tbe other residuary legatees, on the ground that the latter were given specific portions of the residuum, and could not take more by the intent of the will, and receiving the bequest in common and not jointly, there could be no increase by survivorship. The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chan eery, to keep the devolution of property in the regular channels, to the heir and the next of kin, whenever it can be done. If the question were new in this state, speaking for myself I should not hesitate to reject the English rule as wrong in principle and subversive of the great canon of construction, the carrying out of the intent of the testator. But the question is not new. It arose in Craighead v. Given, 10 S. & R. 351, and this court applied the English rule without question. Again, in Woolmer’s Est., 3 Wh. 477, it was taken as settled, and expressly sanctioned by Kennedy, J., in the opinion of the court, though the strict point decided was only that a void legacy to a corporation that did not exist, went to the residuary legatee. In Reed’s Ap., 82 Pa. 428, it was distinctly applied, there being residuary devisees among whom were the testator’s widow and daughter, and, the daughter’s share having lapsed, this court held that the widow was entitled to one third of such share, as a case of partial intestacy. And in Massey’s Ap., 88 Pa. 470, the common-law rules as to the devolution of property described in lapsed devises and bequests, were authoritatively asserted to be in force ; and Neff’s Ap., 52 Pa. 326, was explained and approved, because it “ came within the exception stated in Leake v. Robinson, of some part of the residue itself ill given.” The same view was taken by the orphans’ court of Allegheny in Henderson’s Estate, referred to by the learned judge below, and by the court of common pleas No. 4 of Philadelphia, in Everman v. Everman, 15 W. N. 417. After this general consensus of judicial opinion for nearly three quarters of a century, we must regard the rule as settled. It is true that all the foregoing cases were of lapsed and not-of void legacies, except Woolmer’s Estate, where this particular point only arose obiter, and perhaps Neff’s Appeal, where the will was republished after the death of one of the residuary legatees, and where the devise to him was therefore not merely-lapsed, but void at the date of republication. It is also true that in Patterson v. Swallow, 44 Pa. 487, it was distinctly held that, since the wills Act of 1833, a lapsed or void devise does not go to the heir, but to the residuary devisee. But the foundation of that case, so far as it rests upon any supposed effect of the Act of 1833, has been definitely taken away by the opinion in Massey’s Appeal, already cited. The English rule makes no distinction between the disposition of a lapsed and a void residuary bequest, and there is none in principle. If, through dislike of the rule, we should make such a distinction, it would be one without a real difference. It is better to let the rule stand as it was left by our predecessors, than to pare it away by super-subtle distinctions, while professing to accept it as settled. The only remaining question in the case is whether the Act of twenty-sixth April, 1855, introduced a new rule; and notwithstanding the very earnest and ingenious argument for appellant, the view of the learned judge below is unanswerable, that the statute is remedial as to the execution of wills containing charitable devises or bequests, but as to distribution, where such devises are void, it is simply declaratory. Section 11 of the Act, after prescribing the requisites of a valid deed or will for such purposes, proceeds: “ And all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law.” This is merely the devolution over, to emphasize the invalidity of the disposition which fails to comply with the requirements of the statute. It cannot be held to be anything more. To treat it as a new order of distribution, prescribing who shall take in such cases and in what order, is not only to give the statute an operation manifestly beyond and foreign to its intent, but involves us at once in inextricable confusion of legal ideas. If, as is argued, “ the words ‘ according to law ’ are to determine who ‘ according to law ’ is the residuary legatee or devisee, or next of kin, or heir,” and the statute makes a new law of distribution among such persons, then we must hold that the party standing in the first of the relations named must take to the exclusion of the others; so that if there be a residuary legatee he must take though the “ disposition of property contrary ” to the statute, be a devise of land or even a conveyance by indenture; and if it was an indenture and the grantor died intestate within the month the next of kin being prior in the list of distributees, would take the land to the exclusion of the heir. The statute will not stand the strain of such a construction. It is a statute of wills and conveyances, not of distribution of decedents’ estates, testate or intestate; and the expression “go to the residuary legatee or devisee, next of kin, or heirs, according to law,” means to one or the other, as the case may be under the existing law of distribution. No other construction is entertainable. Decree affirmed. C.

Mr. Justice Gordon delivered the opinion of the court, January 6th 1879. A guardian has, ordinarily, power to lease any of his ward’s property that is of such character as makes it the subject of a lease, but without the approval of the Orphans’ Court ho cannot dispose of any part of the realty. Oil, however, is a mineral, and being a mineral is part of the realty: Funk v. Haldeman, 3 P. F. Smith 229. In this it is like coal or any other natural product which in situ forms part of the land. It may become, by severance, personalty, or there may be a right to use or take it originating in custom or proscription, as the right of a life-tenant to work opened mines, or to use timber for repairing buildings or fences on a farm, or for fire lote. Nevertheless, vrhenever conveyance is made of it, whether that conveyance be called a lease or deed, it is, in effect, the grant of part of the corpus of the estate and not of a more incorporeal right. In the case above cited, this is said to be so as to leases of coal lands for the purpose of mining, and there is no reason why the same doctrine should not apply to oil leases. Not infrequently the oil forms by far the most valuable part of an estate, and to permit a guardian to dispose of it at will and without security, would often lead to consequences disastrous to his wards. Now Rankin’s lease to Campbell & Lambing, as well as that to Stoughton, was, in fact, a sale of all the oil within the limits of the leased territory. Its terms, inter alia, were, “the party of the second part to have the sole and exclusive right to bore and dig for oil in said lot, and gather and collect the same therefrom, for the term of twenty-one years from the date hereof.” This certainly amounts to an absolute sale of all the oil contained within the land described in the lease, subject only to the royalty therein provided for. If we suppose a similar lease of timber growing upon, or coal or other mineral found in land, we can determine without hesitation that it is hut an attempt to dispose of the realty, and so beyond the power of a guardian. As oil is not less part of the realty than timber and coal and not less valuable, there is no reason why it should not also come within the protective and supervisory powers of the court. It follows, that the lease to Campbell & Lambing Avas of no force, bound nobody and was notice to nobody until properly approved. By force of the 3d sect, of the Act of 13th of April 1854, prima facie the decree of the Orphans’ Court rendered this lease effective from its date, and if allowed to stand, it settles the controversy betAveen these parties definitely in favor of the appellees. Tavo substantial reasons are urged Avhy this ought not to be permitted; first, it interferes with the vested rights of other parties ; second, it Avas made without the consent of the guardian. The Stoughton lease was approved, on petition of Rankin, June 11th 1873, whilst that of Campbell & Lambing was not approved until the 25th of February 1875. Not only so, but the court, at that time, vacated so much of the former decree as affected, the land embraced in the Campbell & Lambing lease. This Avas not done on the motion of the guardian or on the ground of fraud or mistake in the procuring or entering of the decree, but on the petition of the lessees alleging want of notice to them of the previous action of the court. This was wholly irregular, since, for such reason, the court had no poAver to vacate a decree regularly made some tAventy months previously. Supposing these parties to have been entitled to notice in order to make the confirmation of the subsequent lease binding on them, it but follows that without such notice the decree could not conclude them; it could only conclude the parties to it, hence, their rights were in no Avay jeopardized, and the court would certainly have exhausted its poAver in confirming their lease and so leaving them to settle their controversy, with Stoughton and his vendees, by an action of ejectment. Rankin’s lease, however, amounted to nothing more than a mere proposition, from which, at any time before it received the approval of the court, he might recede. Campbell & Lambing knew they were dealing with a guardian, and they should have known that he could not, on his own motion, dispose of his ward’s propei’ty. They took nothing by their lease, and had no rights which were entitled to consideration in the confirmation of the subsequent contract. We will not say that a case might not occur where the court might approve a contract notwithstanding the dissent of the guardian, but wo do not think this such a case. According to the finding of the master, Campbell & Lambing had, by their laches, forfeited their contract, so that, had it been originally binding, they were not entitled to have it enforced, and, consequently, Rankin, in making the lease with Stoughton, hut exercised a sound legal discretion which the court properly approved. It is thus manifest, that on no point, found in this case, can the decrees under review be sustained. It is ordered that the decree reported by the master for this, Stoughton’s Appeal, be adopted and entered as the judgment of this court. Also, that the decree reported by the master for the case of Rankin’s Appeal, No. 119, October and November Term 1875, be accepted and entered as the judgment of this court.

Opinion by Mr. Justice Sadler, Lamp and Auld were part owners of certain gas leases. On November 24,1919, they were requested by the Manufacturers Light & Heat Company to sell it the gas which might be produced from wells then being drilled, and to which the company proposed to extend its pipe line. They signed an agreement contracting to dispose of their product at “$.14 per thousand cubic feet during the first year and $.15 per thousand cubic feet during the remainder of the contract to be prepared and executed by us. .....Said contract to be prepared for signature and executed within 10 days.” At the time of signing, other stipu lations were suggested to the agent of the company regulating payment in case the pipe-line was not completed at the time the well began producing. The provision as to length of term, as well as other details, was left for insertion in an agreement to be prepared subsequently; and within ten days such a written contract was submitted, by which the term was fixed at three years. Upon receipt of the copy, Lamp and Auld refused to sign, on the ground that the others interested with them were not satisfied with the arrangement, and the proposed agreement was returned. The lessees afterwards entered into a contract with the Peoples Natural Gas Company, one of the defendants in this proceeding, and furnished gas to it when the well began to produce on December 15, which was thirty days before the Manufacturers Company had completed its line so as to receive the flow. A bill in equity, filed against the proposed vendors, and their ultimate vendee, praying for specific performance of the agreement referred to, and asking for an accounting of the product already sold, was dismissed because of incompleteness of the contract of sale, which the court below held to be within the scope of the 4th section of the Sales Act of 1915. Prior to this legislation, there was no requirement that contracts for the sale of personalty should be in writing. The Act of March 21, 1772 (1 Sm. L. 389), based on the English Statute of Frauds and Perjuries, was confined to leases for periods of more than three years’ duration, and to sales of real estate. Subsequently, it was provided that declarations of trust in real estate should be manifested by a writing (Act of April 22, 1856, P. L. 532), and that promises to answer for the debt or default of another should be evidenced by written note or memorandum: Act April 26, 1855, P. L. 308. In 1915 (Act May 19, 1915, P. L. 543), the Uniform Sales Act was passed, which extended the statute of frauds to sales of personalty where the amount involved exceeded five hundred dollars. Section 4 is based upon the 17th sec tion of the English Act of 29 Car. II, c. 35, and, in practically the same language, directs that such transactions shall not be enforceable, with certain exceptions, “unless some note or memorandum in writing of the contract of sale be signed by the party to be charged, or his agent, in that behalf.” Statutes, such as the one with which we are dealing, do not provide mere rules of evidence, but are limitations upon the judicial authority to afford remedies: Safe Deposit & Trust Co. v. Diamond Coal & Coke Co., 234 Pa. 100; Moore v. Eisaman, 201 Pa. 190. If, then, there has been a failure to properly comply with the legislative requirements, relief cannot be granted. The contract of sale must be evidenced by a written note or memorandum. This means, as has been so frequently declared, in the case of contracts dealing with real estate, that all of the essentials of the agreement must appear in the writing to be signed by the party to be charged: Soles v. Hickman, 20 Pa. 180; Conrade v. O’Brien, 1 Pa. Superior Ct. 104; 1 Williston on Contracts, 1101. If not complete in itself, and oral evidence be required to supply omissions, then the whole is reduced to parol, and, though equity might reform, it can no longer specifically enforce: Safe Deposit and Trust Co. v. Diamond Coal & Coke Co., 234 Pa. 100; Rineer v. Collins, 156 Pa. 342. It is true that the statute may be satisfied where the memorandum is made up of several papers, which together will furnish the essential terms; but the separate writings must bear internal reference one to the other. In such case, oral testimony may be offered to identify and show the connection between them (Title G. & S. Co. v. Lippincott, 252 Pa. 112), but such evidence cannot be used to supply proof of the terms of the contract itself: Moore v. Eisaman, 201 Pa. 190. In the present case, an examination of the writing of November 24,1914, shows it to be incomplete. The term during which it is to be effective is not given. On its face it indicates the drawing of an agreement, setting forth the necessary terms and conditions, to have been contemplated by the parties. Such a paper was prepared, bnt its execution was refused. Nor can we see a cnring of the defects by reference to any of the exhibits offered in evidence. The only other, signed by either of the parties to be bound, is the letter of December 6th, which was a refusal to accept the contract as finally written. Specific performance could not be awarded, if section 4 of the Sales Act is applicable. The subject of the contract is personalty, and its value is in excess of the amount fixed in the statute. It is clear that the case does not come within the exceptions designated in the act. There was no actual acceptance of the goods by the buyer; there never was a delivery, such being refused by the owners. Nor was there part performance, as found in Producers Coke Co. v. Hoover, 268 Pa. 104; nor part payment of the consideration. The building of the pipe-line was for the benefit of the company, and was to be used by it in transporting gas from the entire field in which the defendants, as well as others with whom the company had contracts, were operating. The cost of the line was not to be credited as part of the price to be paid for the product when furnished; its construction was merely a necessary act of preparation, made by the company, so that it could utilize the property purchased when delivered. This was not such a payment as to take the contract out of the statute: Hewson v. Peterman Mfg. Co., 51 L. R. A. (N. S.) 398; Hudnut v. Weir, 100 Ind. 501; Galbraith v. Holmes, 15 Ind. App. 34. The record presented shows the action of the court below to have been proper, and' the assignments of error are overruled. The decree is affirmed at the cost of the appellant.

Opinion by Mr. Justice Drew, The Council of the City of Philadelphia on February 24, 1938, passed an amended ordinance, known as the City Sales Tax Ordinance, under which a tax of two per cent is levied upon all retail sales within the city limits from March 1, 1938, to December 31, 1938, with the exception of certain sales of food, drugs, newspapers and periodicals. The plaintiffs, corporations engaged in the business of selling goods at retail in Philadelphia, brought this suit in equity against the City of Philadelphia, and its officers, to enjoin the enforcement of the ordinance. Their bill was dismissed by the court below, after it had sustained preliminary objections raising questions of law, and from the final decree entered this appeal was taken. The plaintiffs aver that the ordinance violates the Act of August 5, 1932, P. L. 45 (the Sterling Act), be cause it duplicates taxes already paid by the plaintiffs to the Commonwealth of Pennsylvania, to wit: (1) the capital stock tax; (2) the corporate net income tax; (3) the mercantile license tax. It is also asserted that the ordinance is unconstitutional in requiring the plaintiffs, as vendors, to collect the tax and to be liable for it to the city. The sole question is, had the City of Philadelphia the power and authority to levy a City sales tax in the manner and form in which it was imposed? We approach consideration and determination of that question without regard to extraneous matters. We have nothing to do with the wisdom of the tax or with the purpose of its levy. It is admitted that the Legislature has the right and power to delegate to the City Council the authority by ordinance to levy, assess and collect taxes for general revenue purposes. Such a delegation of the taxing power is expressly sanctioned by Section 1 of Article XV of the Constitution of Pennsylvania, which provides in part that “Cities . . . may be given the right and power ... to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations and regulations, as may be imposed by the Legislature.” This court has ruled that the legislative taxing power may be lawfully delegated to an elective City Council. A most recent case in point is that of Wilson v. Philadelphia, School District, 328 Pa. 225, in which Mr. Chief Justice Kephart reviewed the subject elaborately. Under the Sterling Act, supra, the city has broad powers to levy taxes for revenue purposes. It is empowered therein to levy taxes “on persons, transactions, occupations, privileges, subjects and personal property, within the limits of such city,” excepting however, that it may not levy “on a privilege, transaction, subject or occupation, or on personal property which is now or may hereafter become subject to a State tax or license fee.” The subject of tax in the instant ordinance is the transaction of sale. The purchaser is made the taxpayer, and the seller the collector of the tax, for which he is compensated. Counsel for appellants argue ably that the tax is in fact on the vendor. The ordinance makes it clear that this is not so. However, as we view the case, it would make no difference which party was required to pay; the tax being on the sale itself, if the City Council had the power to make the levy, and it had that power if there was no duplication, it could require either party to the sale to pay the tax. In this instance, the Council saw fit to place it on the vendee. The ordinance does not invade the field preempted by the Commonwealth by the Capital Stock Tax Act of April 25, 1929, P. L. 657. The court below correctly concluded that “the ordinance taxes neither the same subject nor the same person as the State taxes referred to. This is so clear as to the capital stock tax that it scarcely requires statement, for that tax so far as it relates to this question is on corporate assets held for sale, not on the sale, and is levied on the vendor: Peoples Natural Gas Co. v. Pittsburgh, 317 Pa. 1.” It is equally plain that the sales tax does not duplicate the incidence of the Corporate Net Income Tax Act of May 16, 1935, P. L. 208, the taxable subject matter of which is obviously net income. We have held an income tax to be a property tax (Kelley v. Kalodner, 320 Pa. 180), and the corporate net income tax specifically to foe such in Turco Paint and Varnish Co. v. Kalodner, 320 Pa. 421. The sales tax and the net income tax vary widely. The former is an excise tax on sales and services ; the latter is a property tax upon income from any source. The former is a tax on “transactions,” whereas the latter is a tax on “property.” The persons taxed are wholly different. The sales tax is imposed upon the purchaser or consumer; the net income tax is on the corporation receiving the income. Did the Legislature preempt the field sought to be covered by the city sales tax when it passed the Mercantile License Tax Act of May 2, 1899, P. L. 184, and its amendments, requiring vendors of merchandise to obtain a license to do business, for which they must pay a fee of two dollars plus an additional amount determined by the volume of their business? The mercantile license tax is not, as appellants claim, a tax on sales, but is an excise upon the privilege of doing business, as this Court and the Superior Court have frequently said. Thus in Com. v. Harrisburg Light & Power Co., 284 Pa. 175, 178, Mr. Justice Schaffee said: “. . . the mercantile tax [is] a license tax for the privilege of vending-merchandise.” Likewise in Com. v. Globe Furnishing Co., 324 Pa. 180, 183, we said: “. . . the mercantile license tax is a tax on the privilege of doing business in a certain manner.” In Atlantic Refining Co. v. Van Valkenburg, 265 Pa. 456, 461, quoting from Com. v. Abbotts Alderney Dairies, 62 Pa. Superior Ct. 451, 454, we said: “. . . the assessment is not on the sales, however, but on the dealer.” So also in Beaver County Cooperative Association’s Appeal, 118 Pa. Superior Ct. 305, 311, we read: “The mercantile license tax is imposed, not upon the property or income, but upon the privilege of selling goods, wares, and merchandise, and is measured by the whole volume, gross, of business transacted annually.” To the same effect are Knisely v. Cotterel, 196 Pa. 614; Baer’s Appeal, 82 Pa. Superior Ct. 414; Com. v. Pocono Mountain Ice Co., 23 Pa. Superior Ct. 267; Com. v. Bailey, Banks and Biddle Co., 20 Pa. Superior Ct. 210. The State mercantile license tax and the City sales tax are similar in that they are both excises, but the similarity goes no further. The City tax is a levy on sales, the State tax is a levy imposed for the privilege of conducting a particular kind of business, albeit the amount of the tax is measured by gross sales. The sales tax is imposed upon the transaction whereby property is acquired; the mercantile tax is an imposition for the privilege of doing business. The case of Grew Levick Co. v. Pennsylvania, 245 U. S. 292, is said by appellants to decide that our mercantile license tax is a sales tax. It holds only that when applied to an exporting business the tax is a burden upon foreign commerce tantamount to an impost on exports, and as such, expressly forbidden by the Federal Constitution. A state tax upon the right to do an interstate or foreign export business is unconstitutional and is not saved by the fact that it is a franchise tax: Leloup v. Port of Mobile, 127 U. S. 640; Philadelphia and Southern Steamship Co. v. Pennsylvania, 122 U. S. 326; Robbins v. Shelby County Tawing District, 120 U. S. 489. Indeed, the mercantile tax was characterized in the Crew Levick case, supra, at page 297, as being “imposed upon the very carrying on of the business of exporting merchandise.” The case did not decide that the levy was a sales tax and not a tax on the privilege of doing business. Moreover, the case is authority for the proposition that our own decisions as to the nature of a Pennsylvania tax are controlling even in the Supreme Court of the United States when, as here, no Federal question is at issue. The court below correctly decided that the City Sales Tax Ordinance and the Mercantile License Tax Act do not tax the same subject, nor the same person, and that the field covered by the ordinance had not been preempted by the mercantile license tax. The ordinance, as amended, provides that the vendor shall collect the tax from the purchaser, and allows the vendor to deduct from the return of the tax one per cent thereof for the costs of collection. It is insisted that the municipality lacks the power to tax the purchaser and make the vendor the tax collector. No doubt the State may do so (cf. Com. v. Schuylkill Trust Co., 315 Pa. 429, 433) and has done so recently when it amended on July 2, 1937, P. L. 2774, the Liquid Fuels Tax Act of May 21, 1931, P. L. 149, and provided that: “Distributors shall be liable to the Commonwealth for the collection and payment of the tax imposed by this act. The tax imposed by this act shall be collected by the distributor at the time the liquid fuels are used or sold and delivered by the distributor and shall be borne by the consumer.” We think the same power is vested in the City of Philadelphia by the Sterling Act, supra, which authorizes it “to levy, assess, and collect, or provide for the levying, assessment, and collection” of taxes. [Italics ours.] Under such a broad legislative grant the City’s power of collection is limited only by constitutional restrictions. The imposition of such a burden upon the vendor, who is not the taxpayer, has frequently been challenged as violative of the Fourteenth Amendment, and on each occasion the Supreme Court of the United States has dismissed the challenge and sustained the imposition. A leading case is that of Pierce Oil Corp. v. Hopkins, 264 U. S. 137, which involved the constitutionality of a statute of Arkansas that imposed upon the vendor of gasoline the duty of collecting a State tax from the purchaser. A like method of tax collection was unsuccessfully attacked in the case of Monamotor Oil Co. v. Johnson, 292 U. S. 86. If the imposition of the burden of tax collection without reimbursement does not violate the Fourteenth Amendment, then, a fortiori, the allowance of compensation constitutes an additional reason in support of the constitutionality of the sales tax ordinance. Along with the foregoing challenges to the validity of the ordinance certain questions of its construction are raised. It is contended that club transactions are not sales and so not subjected to tax. We have no doubt that the levy falls upon the price of food served in a club the same as upon the cost of a meal in a restaurant. A sale is defined for the purposes of the present ordi nance as “any transfer of title or possession or both, exchange or barter, license to nse or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor. ...” (Section la.) A club transaction is surely a “transfer of . . . possession . . . for a consideration. ...” The ordinance carries its own definition. We are, therefore, unconcerned with the technical requisites, urged by counsel, of a sale at common law, or with the meaning of the same term in the special context of other enactments, such as the Brooks High License Law and the Mercantile License Tax Act construed in the cases cited: Klein v. Livingston Club, 177 Pa. 224; Union League v. Bansley, 39 Pa. Superior Ct. 514; Com. v. Meyers, 62 Pa. Superior Ct. 223. Our latest pronouncement, not restricted to the construction of any statute, is that “the ordinary meaning of a ‘sale’ is a transfer ... of title to property for a consideration. These requisite elements are present when a member of a club orders a drink and pays for it. The club corporation purchases liquor and resells it just as any other vendor; the only difference is that its customers are limited to its membership”: Benner v. Tacony Athletic Association, 328 Pa. 577, 580. Far from indicating an intent to adopt a more restricted meaning, the definition of the present ordinance takes an even broader ground when it includes as a sale “any transfer of . . . possession . . . for a consideration.” Moreover, fiscal measures, such as the present, are to be strictly construed against exemptions: Callery’s Appeal, 272 Pa. 255, 272. The construction of section 2(c) is likewise questioned. It imposes a tax upon sales of “Food, drink (other than alcoholic beverages) and entertainment in restaurants, cafes and similar establishments, including in the amount of such receipts any cover or minimum or other charge made to patrons where the charge to the patron is one ($1) dollar or more, in which event the tax is imposed on the full amount of the charge to each such patron.” The intention of the council seems to have been to exempt cover charges under one dollar and tax those over one dollar. The necessity for uniformity and the invalidity of any graduated tax make such exemption void; consequently “food, drink . . . and entertainment in restaurants, cafes and similar establishments, including in the amount of such receipts any cover or minimum or other charge ...” are liable to taxation at the uniform rate. For the foregoing reasons we entered our order of March 23, 1938, shortly after the argument, -affirming the decree at the cost of the appellants, pursuant to which order this opinion is now filed.

OPINION ZAPPALA, Justice. In this appeal we are asked to review the opinion and order of the Superior Court affirming the Court of Common Pleas of Delaware County which vacated the arbiter’s award granting the appellant uninsured motorists benefits. Before us, the appellant raises two issues: (1) whether the trial court exceeded its scope of review in vacating the award and (2) if the trial court did not, whether the trial court erred in vacating the arbitration award granting uninsured motorists benefits under the Motor Vehicle Fi nancial Responsibility Law. 75 Pa.C.S. § 1701. Because we agree with appellant that the trial court exceeded its scope of review, we reverse. The underlying facts are not in dispute. The appellant is a police officer for Darby Township. On October 5, 1986, while driving a vehicle owned by the Township and insured by the appellee, the appellant’s vehicle was struck by an uninsured motorist. As the result of this collision, the appellant suffered personal injuries. At the time of the collision, the appellant was acting within the scope of his employment as a Darby Township Police Officer and therefore received both Workmen’s Compensation and Heart and Lung Benefits. Since neither the appellant nor any member of his household owned a vehicle, the appellant filed a claim for uninsured motorists benefits with his employer’s insurance carrier, Appellee. The appellee denied the claim resulting in the appellant requesting arbitration under the Township’s insurance policy in accordance with the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq. The arbitration panel awarded $15,000.00 to appellant. Appellee then filed a Petition to Vacate the Award with the Court of Common Pleas, which was granted. Appellant filed an appeal with the Superior Court which affirmed 382 Pa.Super. 255, 555 A.2d 168. We then granted the appellant’s Petition for Allowance of Appeal. In vacating the arbitration award, the Court of Common Pleas failed to address the jurisdictional issue raised by Appellant in his Statement of Matters Complained of on Appeal but instead, relied solely upon Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988). In Lewis, we held that an employee could not recover uninsured motorists benefits under the then Uninsured Motorist Act from its employer when such injuries were suffered while acting in the course and scope of his employment. Instead, the exclusive remedy was the Workmen’s Compensation Act because no intent to the contrary had been expressed by the legislature. The Superior Court initially held that the arbitration award was reviewable by the trial court as a matter of public policy. It then held that Lewis controlled, resulting in appellant not being entitled to uninsured motorists benefits. The appellee’s insurance policy provides that any dispute as to entitlement to or extent of damages is to be arbitrated in accordance with the Pennsylvania Uniform Arbitration Act, supra. Section 7314 of the Act sets forth the authority of a court to vacate any award entered in accordance with the Act: 7314. Vacating award by court (a) General rule.— (1) On application of a party, the court shall vacate an award where: (i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable; (ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party; (iii) the arbitrators exceeded their powers; (iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or (v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing. In addition to the reasons set forth in § 7314, § 7314(a)(l)(i) authorizes the court to vacate an arbitration award for reasons permitted under common law arbitration. Under common law arbitration a court may not vacate an arbiters award “unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award” 42 Pa.C.S. § 7341. As indicated, the trial court failed to address this issue. Both the Superior Court and now the appellee rely upon Section 7314(a)(l)(i) as a basis for vacating the award. In so doing, the Superior Court has relied upon its own case, United Services Automobile Association Appeal, 227 Pa. Super. 508, 516, 323 A.2d 737, 741 (1974) which announced the following rule of law: Thus the rule, to which all the cases conform, is that where the application or construction of the uninsured motorist clause is at issue the dispute is within the exclusive jurisdiction of the arbitrators; the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy or unconscionable. In Davis v. Government Employees Insurance Company, 500 Pa. 84, 454 A.2d 973 (1982), this Court adopted the United Services Automobile Association rule regarding the authority to reject an uninsured motorist clause as against public policy. We stated: We must reject appellee’s contention that the Court of Common Pleas lacked authority to review the merits of the arbitrators’ award. Where, as here, a claimant challenges a provision of an uninsured motorist clause as being contrary to a statute, the Court of Common Pleas may exercise jurisdiction over the claim. See United Services Automobile Association Appeal, 227 Pa.Super. 508, 323 A.2d 737 (1978). 500 Pa. at 88, Note 5, 454 A.2d at 975, Note 5. While we adhere to the Davis rule, we find it inapplicable in this appeal. In Davis, we were asked to review a clause of the insurance policy which the insured claimed was contrary to the existing uninsured motorists coverage law (UML). We then reviewed the UML and determined that the insurance clause was not contrary to any existing statute and affirmed the denial of uninsured motorists benefits. Our review was limited to a comparison and interpretation of an insurance contract provision with a particularly promulgated statute, as opposed to reviewing a monetary award. In this instance, the Superior Court did not find any contract provision contrary to public policy but rather, held that the award itself was contrary to public policy. This result oriented analysis is exactly the type of review the legislature was attempting to avoid by promulgation of the Uniform Arbitration Act. In fact, under the previous 1927 Act, the trial court was authorized to vacate arbitration awards which were contrary to the law. However, this provision was omitted in the existing Act. Appellee has not argued that any provision of its own drafted policy was contrary to any stated public policy, nor does our independent review discern any such provision. In fact, in its petition to vacate the award, appellee only argues that the arbiters committed errors of law. It is clear that Appellee is dissatisfied with the award, but in contractually incorporating the Uniform Arbitration Act and its limited scope of review, court intervention is restricted. Were we to adopt the view of the appellee and the Superior Court in this matter, not only would we be redrafting the insurance contract but also modifying the Act. This, we decline to do. Accordingly, the trial court erred in vacating the arbitration award. Judgment reversed. NIX, C.J., concurred in the result. . Because of our disposition of this appeal, we need not address appellant’s second issue. However, it is quite clear that Selected Risks Insurance Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989) is controlling and that Appellant is entitled to uninsured motorists benefits under the Motor Vehicle Financial Responsibility Law.

Opinion by Mr. Chief Justice Paxson, The only speeiiication is, that the court below erred in refusing defendant’s sixth point. The point was as fellows: “ That under all the evidence in this case the verdict should be in favor of the defendant.” The alleged negligence of the defendant was of a twofold character. First, that the train was running at an unreasonable rate of speed, and, second, that no warning was given by the blowing of the whistle, or the ringing of the bell, of the approach of the train to the crossing where the accident occurred. The train appeared to have heen running at a rate of from forty to forty-five miles an hour. The witnesses for the plaintiff testify that it was running at a high rate of speed without fixing the rate. This, perhaps, they could not do with anything like accuracy, owing to their want of experience in such matters. The defendant’s witnesses, who are perhaps better qualified, fix the rate at from forty to forty-five miles, as before stated. The testimony was conflicting, as is usual in such cases, in regard to the blowing of the whistle and the ringing of the bell. That, produced on the part of the plaintiff, was mostly negative in its character. It was in substance that they did not hear any such warning, though some of them say that they' could have heard it if it had been given. On the part of the defendant at least as many witnesses testified positively that the whistle was blown at the proper place to give warning, and that the bell was rung. Some of these witnesses have no connection with the road, and, for anything that appears, were disinterested. The difference between positive and negative testimony upon a question of this kind is very marked, and it would be well if the attention of jurors was more pointedly called to it by the court in the trial of such eases. One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it, unless in some manner their attention had been especially called to it. The witness who heard the bell either tells the truth, or he tells a deliberate and willful falsehood, while the witness who did not hear the bell maj’be, and is probably truthful. The bell may be rung or the whistle blown without attracting the attention of persons who are familiar with such sounds. Several of the witnesses who were called on behalf of the plaintiff, and testified that they did not hear the warning, yet sa}*- that they distinctly heard the short, shrill signal of the danger whistle. I have no doubt they were entirely truthful in what they said. The reason they heard the one and not the other is easily reconcilable with com mon experience. The long whistle, which is used in approaching a station, is so common upon a leading railroad line that persons living in the vicinity, and especially near a crossing, may hear it many times during the course of the day. It is so frequent that they may not notice it. It conveys no meaning beyond the fact that a train is approaching a station or a crossing, but when the shrill warning signal is given by two or more sharp blasts it is likely to attract the attention of persons m the vicinity. It is known to mean immediate danger to some one. Thus we learn from plaintiff’s testimony that the danger signal, given just before the accident, attracted the immediate attention of those who did not hear the whistle or the bell at the warning post. They rushed immediately to the windows or other points of observation to see what it meant. We must assume under the finding of the jury that the train was going at a high rate of speed. We must also assume, however violent the assumption, that the whistle was not blown nor the bell rung at the whistling post as they should have been. We must consider the case with the fact of the defendant’s negligence established by the verdict of the jury. It remains to consider the question, whether the plaintiff was guilty of contributory negligence. As a general rule this question must be submitted to the jury, but there is a line of cases which it is unnecessary to cite that hold that where the facts are not in dispute the court may rule this question as one of law. The undisputed facts in this case, as I gather them 'from the evidence, and from the charge of the learned judge of the court below, are as follows: On the 20th day of July, 1891, Simon J. Urias, the husband of the plaintiff, with his one-horse wagon drove up the road or street leading from the Monongahela river, or from that direction, up to the crossing of the Pennsylvania Railroad at Copeland station, near Braddock borough, in the county of Allegheny. As he drove up the road which was an ascending grade to the tracks of the Pennsylvania railroad, a freight train, going eastward from the city of Pittsburgh towards Braddock, was passing in front of him on the crossing, and he stopped on or near a switch or siding which came out from the main track of the railroad a little to the east of the crossing and ran into an ice house on the side of the de fendant company’s road. The distance between the ice house and the south rail of the road was eighteen and a half feet. The deceased stopped with his wagon on or near this ice house switch or siding, and waited until the freight train had passed. As soon as the freight train had fairly cleared the crossing the deceased started to cross the track, when an express train of the defendant company came down the track from the direction of Pittsburgh, going in an eastwardly direction the same as the freight train had gone and struck his horse, knocking it loose from the wagon and carrying it some distance along the track and killing Mr. Urias. After the freight train had passed, it is not disputed that the deceased looked up the track and discovering no approaching train attempted to cross the track, and his horse was struck almost immediately when it stepped upon the track. It is very clear that, from the point where the deceased stopped and looked, he could not see the approaching train for the reason that his view was obscured by the ice house. This appears from the testimony of his own witnesses, one of whom testified that: “ He raised up first and looked towards Pittsburgh; of course, he couldn’t see.” If, on the other hand, it be contended that the deceased stopped at a point near the track, and where the ice house did not obstruct his view, he could have seen the train for a distance of nineteen hundred and fifty feet. For all that distance there was nothing to obstruct the view, and the evidence upon this point was not essentially contradicted. It is true, there was evidence that cars standing upon what is called the brick siding might obstruct the view to some extent. But there was no evidence that at the time of the accident there were any cars standing upon that siding. So that we have the case of a person who either stops and looks at a place where he cannot possibly see an approaching train, or who stops nearer the track where he could see a train more than a third of a mile away. If we adopt the latter view the case is ruled by Carroll v. The Railroad Company, 12 W. N. 348, where we said: “ It is in vain for a man to say he has stopped, looked, and listened, if in despite of what his eyes and cars must have told him he walked directly in front of a moving locomotive.” The same principle has been recognized in a number of subsequent cases, which it is unnecessary to cite. On the other hand, if he stopped behind the ice house at a point where he admittedly could not see, it was not a compliance with the rule laid down in Railroad Company v. Beale, 73 Pa. 504. Where there is a doubt as to the proper place to stop, look and listen, as a general rule such question will be referred to the jury. But where there is no such doubt; where the deceased stopped at a point where he could not see, it is for the court to determine whether it was a proper place. In Railroad Company v. Beale, supra, it was held that the failure to stop immediately before crossing a railroad track is negligence per se, and this is for the court, and that the rule is unbending. Had the deceased complied with this rule he would not have been injured. There was room after he passed the ice house and before he reached the south bound track to have stopped where he could have seen the approaching train for a distance of over a third of a mile. As he approached the track his eye probably followed the retreating freight train instead of looking up the track for the approaching express train. It is clear, under the undisputed evidence, that had he done the latter he could have avoided the unfortunate accident which resulted in his death. Judgment reversed. See, also, the next ease.

The opinion of the Court was delivered by Gibson, C. J. The words of the proviso no more exclude the half blood from the succession to an ancestral estate, than they exclude it from the succession to a purchased one; and indeed any exclusion .of a brother or sister, would be so unnatural and impolitic, that we ought not to suppose it to have been intended, by any thing less than express enactment or irresistible implication. What is there to raise an implication here? The proviso follows close upon a section in w’hich provision is made for the half blood in broad and .general terms; and had it been intended to restrain it to purchased estates, it would have been easy, and more in the ordinary course of expression, to say so explicitly. In default of issue, and of brothers and sisters of the whole blood, it is said, “ the real estates of such intestate shall descend to, and be vested in, the brothers and- sisters of the half blood of the intestate, and their issue in like manner respectively as is herein provided for brothers and sisters of the whole blood, and their issue.” The word “ blood”'in the proviso, is also used generally; and to apply it in the limited sense ascribed to it, would deprive the half blood of much the greater part of the benefit precedently extended to it, “ Provided,” it is said, “ that no person who is not of the blood of the ancestor, or. other relations from whom the estate descended, shall, in any of the cases before mentioned, take any estatd of inheritance therein and hence an argument that the generality of the provision for the half blood, must, to avoid repugnance, be restrained by the proviso to purchased estates, in order to det the latter operate on ancestral estates, for which it is supposed to have been intended. That it was not intended particularly for the point before us, but for all the previous provisions of the statute, whether in favour of the half or the whole blood, is clear from the fact that disqualification for want of inheritable blood, it was supposed, might sometimes occur “in any of the cases before mentioned.” Independently of that, the very reason of the provision, for the half blood, must lead us to believe that no distinction was contemplated betwixt estates which had been acquired by purchase, and those which had been acquired by descent; for if a half blood brother is of the intestate’s blood at all, he is necessarily of the blood of their common ancestor; and if he is not of the blood of the intestate, whyis he^ allowed to derive even a purchased estate from him in preference to-those who, though more remote, are thought to be of the ancestor’s blood in a double aspect'! Though a descent from a brother to a brother, is what is called an immediate one, their consanguinity is traceable only through a common anpestor; and if demi-kindred, thus established, may make out the claimant to be of the ancestor’s blood for one purpose, it is past my power to comprehend why it may not do so,for another. Neither do I apprehend what is meant by being of the whole blood of the ancestor; and the word blood is used in reference to him alone: or how a half-brother can be of less than the whole blood of a parent who stood as near to him in consanguinity, as to the intestate. Were it used in reference to the intestate in the sense ascribed to it, the. half blood could not take at all, and the entire provision made for it, would be frustrated by the utter repugnance of the proviso. On failure of the half blood, the distinction attempted, would give an ancestral estate to the public in place of a brother or sister.standing nearer in affection to the intestate than all the world beside, Such a consequence would shock the common sense of every .man in the community. In providing for an intestacy, it is the business of the legislator to consult the presumptive intent of the intestate, and to do for him what, it may be supposed, he was prevented by disability, or the suddenness of death, from doing for himself; and who can believe he would, in this case, have cut off his sisters 1 No one would suppose him to have been such a monster. In like manner, it is the duty of the judge, in the interpretation of doubtful phrases, to be guided by the same presumptive intent, especially when it may be done without wresting the words from their natural or technical meaning. Now that the word “blood,”-in its technical and in its natural sense, includes the half blood, and that it has always been used to that intent in statutes and the common law, was shown by Mr. Justice Story in Gardner v. Collins, (2 Peters, 87;) and that it is to be applied in that sense to an ancestral estate under the statute of New Jersey, was held in Den v. Jones, (2 Halst. 340.) If then there is no difference, in this respect, betwixt such an estate and one acquired by purchase, what, it may be asked, was intended by the declaration in our proviso- that none shall inherit but they who are of the blood of the ancestor 1 Obviously to prevent an estate accu-. mulated by one family from being drawn out of it by a half blood link into a family of strangers. Thus, two distinct families whose surviving parents have intermarried and procreated an intermediate one, are not of each other’s blood, though the intermediate family is of the blood of both, and may, in the circumstances specified in the statute, inherit an estate from a member of either of them; but on a failure of the intermediate blood, in its turn, the proviso would come in to turn the estate back into the family from which it came, instead of suffering it to pass to the half blood collaterals on the other side; and this it would do by requiring them to show, what they could not, privity in blood with the parent from which it started, and a consequent capacity to inherit from him. The proviso may operate, also, where there are only two sets of children; for instance to preyent an estate from being transmitted through the same medium to a step-child. But even were the true interpretation different from the one I have been establishing, it would be sufficient for the case at bar that the estate is in truth, not ancestral ; for though there had been a descent, it had been from a brother to a brother; who, and not the purchaser, is the propositus : consequently there had been no descent from an' ancestor. With each of those brothers, these sisters stood'exactly in the same consanguinity ; and were they unqualified to inherit from the proposi-tus, it is not easy to determine how they could have inherited from the other, had the propositus died before him. Did we choose to put the decision on that ground, the very foundation of the argument would fail; but we put it on a broader basis, holding, as we do without qualification, that the half blood may inherit an ancestral estate, whenever it is also of the'inheritable.blood of the ancestor. The judgment below is reversed; and judgment here in favour of the defendants below, for the tract of one hundred and ten acres, the part of the property in dispute, the tract of twenty-five acres, and the moiety of the ninety acre tract, and in favour of the plaintiffs below for the other moiety of the said ninety acre tract. Judgment accordingly.

Per Curiam, We think the learned auditor in the court below has correctly pointed out the distinctions between the cases in which corporate liability is held, and those in which it is denied, in this class of causes. He held that where the corporation received the benefits of the unauthorized action of its officers it was bound. Also that where a previous course of dealing of the same irregular character had been carried on, a liability arose notwithstanding the unlawful character of the paper, but that where there was no such previous course of dealing no liability arose as to the particular paper in question. And he held that in the case of the Spring Garden National Bank the fraud of its president, in contriving and negotiating the fraudulent paper for his own personal use, was with knowledge of the bank, imputed it is true, but correctly imputed, to his bank, and the paper thus held created no liability on the part of the Cracker Company. In these several findings we concur. None of the authorities cited for the- appellant conflict with these findings where the facts were similar. Without engaging in a protracted discussion, which we think unnecessary, we affirm the decree of the court below substantially for the reasons stated in the report of the auditor. Decree affirmed and appeal dismissed at the cost of the appellant.

Mr. Justice Paxson delivered the opinion of the court, March 2d, 1885. The plaintiff was nonsuited below. He was injured by an engine of the defendant company while attempting to cross their track at a public crossing. When he came to said crossing he saw a train passing upon one of the tracks, of which there were several. He looked up and down the road and seeing no other train approaching, he stepped upon the road and stood between the tracks waiting for the train to pass. While in this position an engine came along and struck him. He had a clear view of the track for half a mile in the direction from which the engine came, and could have seen it had he looked at the right time. His attention was doubtless given to the passing train, and as the engine 'was not on the track when he stepped thereon, he probably expected to cross before another train or engine should pass. This was unfortunately a mistake and resulted in his injury. He says in his testimony: “ I got hit by standing too near the track, I guess.” At railroad crossings there are reciprocal duties. Both the company and the public have a right of way; neither is exclusive. It is the duty of each to so exercise their respective rights as not to interfere unnecessarily with the rights of the other. A crossing is a known place of danger. The engineer of a train when he approaches it has a right to expect that persons may be there, hence it is his duty to approach it at a moderate rate of speed; the citizen when he attempts «to cross knows that a train may come at any moment. It is his plain duty to look out for it and avoid it if possible. The train is not obliged to stop : he is. There was no evidence to show that the engine approached at a high rate of speed. It was urged, however, that the engineer might and ought to have seen the plaintiff and that his failure to stop or at least blow the whistle or ring the bell was negligence. The plaintiff says “ there was no whistle blown or bell rung.” There appears to have been no other evidence upon this point. We must assume that he did not hear it for if he had he would not have waited to be run down. It is equally probable, however, that his attention was so taken up by the passing train that he did not notice either whistle or bell. We are asked to assume that the engineer saw him because it was his duty to have done so, and there was nothing to have prevented it. If we are to depend upon presumptions we must apply them to both sides. If it was the duty of the engineer to have seen the plaintiff standing upon the track close to the passing train it was also the duty of the plaintiff to see the approaching engine. And certainly it was quite as easy for the .plaintiff to see the engine as for the engineer to see the plaintiff. The view of each was unobstructed. The plaintiff was standing at a place of known danger; the engine was approaching it. The duty of each was plain; to be vigilant; to be on the alert. If the engineer saw the plaintiff it was his duty to give warning, and if he did not do so it was negligence. More than this, if he is approaching at a proper rate of speed he is not bound to do. He has a right to suppose that a person upon the track is in full possession of his faculties, and that he will in the event of danger step from the track and avoid it; that unless there is brought to the attention of the engineer some fact from which he can see that the person upon the track cannot get off, he has a right to believe that he will use his senses and clear the track: Herring v. W. & R. R. Co., 10 Iredell, 402; Manly v. Wilmington & W. R., 74 N. C., 655; Louisville & N. R. R. v. Cooper’s Executor, 9 Am. & Eng. R. R. Cas., 5. Of course a man may not be wilfully run down and killed or injured, even if he be a trespasser upon the track. Such a doctrine would not be tolerated for a moment in any civilized country. But there was nothing of the kind here. The most that can be claimed is that the engineer was negligent in not giving proper warning of his approach. Conceding such negligence, how does it affect the case ? The plaintiff was standing at a place of known peril; so clearly so, that we must declare it as a matter of law. He ought not to have stepped upon the track until his passage was clear. It was negligence per se to stand between the tracks while the train passed. There was no necessity for his doing so, and having done so, it was clearly his duty to be vigilant and look out for an approaching train. As before stated he had a clear view of the track for half a mile, but unfortunately be was looking at the passing train instead of up the track. This was negligence on his part, and such negligence that without it he would not have been injured. The case is ruled by Carroll v. The Pennsylvania Railroad Co., 12 W. N. C., 348. The facts are almost identical, and this court said : “ The injury received by the plaintiff was attributable solely to his own gross carelessness. It is in vain to say that he looked and listened, if in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.” There the plaintiff stepped in front of a moving locomotive; here he stood still between the tracks until a locomotive which he might have seen for half a mile, ran over him. A number of cases have been cited which have little appli cation, and we do not regard a discussion of them necessary. Their facts are essentially different. Much a.s we deplore the injury which the plaintiff has received, we cannot see our way clear to say that the court below erred in entering a nonsuit. Judgment affirmed.

Duncan, J. delivered the opinion of the court. This is a-novel and very extraordinary case. During its discussion, X must confess that I felt alarm from the great gravity with which the argument on the general question was put, and the zeal and ability with which it was argued by the counsel of the plaintiff in error, lest we should be compelled to give one of the most unjust judgments ever given in a court of justice; for it would be difficult for the warmest imagination to figure a claim more destitute of every colour of justice and equity, than, in reality, the demand of the present plaintiff is. Brushing from my remembrance, as far as it is possible to efface and overcome the unfavourable impressions which will be made from the survey of the whole transaction, and bringing to the consideration of the various questions that arise on it, a mind I trust free from all unjust prejudices, after a very full and anxious inquiry and deliberation, my understanding and my judgment are convinced, that, as it is void of all grace and decorum, so it is-unsupported by any principle of law, and in opposition to every sound principle of justice and good sense. This is the history of the transaction. [His honour here recapitulated the principal facts.] The marriage by John Wilkins, in 1790, neither makes these children more nor less bastards. The father had a former wife living at their birth; the illegitimacy is clearly established. From the silence of the parties to this ceremony, and its secrecy, for it was known only to the justices, and, in 1803 discovered at his death by accident in his docket, we must conclude that secrecy was observed to give to the children the rank in society, which they would hold as lawful children, not subject to the reproach of bastardy. The plaintiff now demands the surrender of this property, with all its valuable erections, of twenty times greater value than the naked lot, because, as he says, all the proceedings of the Orphans’ Court are null and void, founded in error and mistake; that nine years after he came of age, twenty years after the sale, he has discovered that his father had a wife in Ireland; that his father was guilty of adultery and bigamy, and that his mother was an unchaste woman, and he a bastard; and that he made a trip to Ireland, found out the just heirs, obtained a conveyance from them for the whole lot and buildings for less money than the three-fourths of the naked lot sold for, to pay his father’s debts, and support himself, his mother and sister, and put a building on the reserved fourth. He has fully established his own illegitimacy, and that the grantors are the lawful heirs of James M‘Pherson. If the administrators had not asked by petition for a sale, but suffered what they otherwise could not have prevented, a sale on a judgment and execution for the debts of decedent, all the lot must have been irretrievably gone. The balance, if any, after payment of the debts, would have come to the hands of the administrators, and they alone would then be accountable. What gave birth to the present controversy was the discovery thus lately made of,the illegitimacy of those children; and the effect of that fact, which is clearly established, upon the sales, is the great question. As a great question it has been considered, and very ably argued, by the counsel on both sides, and it merits consideration, as a great and important question. For it is now to be considered, whether all these proceedings, decrees of the Orphans’ Court, sales, and confirmations by the court,1 vast improvements made, titles derived, possession long continued on the faith of these decrees of the Orphans’ Court, a court of record having competent jurisdiction, are null and void, and that they are to be so decreed indirectly in ejectment, an original action, while these decrees remain unreyersed and in full force. There are minor objections — the want of adherence to prescribed formulae, and to certain ceremonial observances. These will be considered in the sequel so far as it may be deemed necessary to notice them. If the plaintiff fail to support (that which his counsel have properly considered as his strong hold,) the position, that all the solemn proceedings of this Court of Record, invested with chancery powers, conducted by chancery rules, and acting on and governed by the principles of a court of equity, are mere nullities, he cannot recover: — but if, as between the present defendant and the heirs at law of James ,M‘Pherson, they, as plaintiffs, could recover, it is an inquiry of great moment: — can this plaintiff, having acquired the title, have any status in curia from the relation in which he stands to the defendants ? That is, can they estop him, stop his mouth, when he opens it with an intention to proclaim his own bastardy, and on that ground defeat their title ? It must be constantly kept in view, that they do not claim title under the heirs of James MtPherson — their title is paramount. They say that the absolute descent to them is quo modo suspended until the debts of the ancestor are paid — that the descent is interrupted by the proceedings of the Orphans’ Court, and defeated by the judicial sale. There are legal and equitable estoppels. Legal, where the law estops a man to falsify a judicial act to which he is a party, and from which he has received a benefit; and equitable ones which will estop him from using a title which in good conscience ought to enure to the use of another. To give an example in the outset. If John MlPJierson had sold and conveyed this lot to another in the character of lawful heir of James, his father, and he is not his heir but a bastard; and, on discovering this, he purchased from the lawful heir, he never could recover. He would be estopped. There are legal estoppels, from the operation of which Chancery would relieve, but here the want of conscience is, in setting up the bastardy. In general the law is, that the grantor is estopped by his own deed.to say he had no interest, when by a subsequent deed he acquires a title. As where an heir apparent, having the hope only of succession, conveys during the life of his ancestor, an estate, which afterwards descends to him, he is estopped to say he had no. interest at the time of his grant. These estoppels run with the land into whatever hand it comes. As if A. make a lease by indenture, of black acre, and after purchase and convey it to B.; B. is bound by this estoppel. Travannion v. Lawrence, 2 Salk. 266. These estoppels are founded in law, honour, and conscience, and the true reason is, that a man having received a benefit in one character, the value of the thing, shall not afterwards recover the thing itself, in another character. This legal and equitable principle runs throughout all the transactions and contracts of life. As in an action by the assignee of a patentee against the patentee himself, he is estopped from saying it is not a new invention, because he has received the benefit of it as such, and though all the world else may show this, he shall not be permitted to do it. The justice of this principle is stamped on every human breast, civilized or savage, the wild man of. the forest, and the civilized man in a social state. Estoppel stoppeth the mouth of a man to allege or plead the truth by matter of record as by .letters patent, common recovery, pleading, confession, admittances, and acceptances; every act of a party where a Court of Record has jurisdiction estops him; for no man shall be permitted to make an averment against a record. When the record of the estoppel goes to the disability or legitimacy of the person, even strangers shall take advantage of the record. Co. Lilt. 352. (a) Loot, and Stud. 69. Two sue livery as heirs, it is estopped between them so that one shall not bastardize the other, Br. Ab. JSsi.pl. 15; and it is there agreed, that in all records in which franktenement comes into dispute, it shall be estopped with the land, so that a man may plead it as a party, or as heir, or by que estate. Ibid. In law this is certainly so, but if a legitimate daughter, and her sister, a bastard, join in suing of the livery, this ought not to bar in equity, though it might estop at law. Carter’s Rep. 27. An entry by estoppel shall not be awarded in equity, nor is the jury bound to find it: and so the law seems to be in cases of obligations, covenants, and personal contracts; but where the estate is bound by the conclusion, and converted fto an interest, though it be found by a jury, yet the court shall judge, according to the law, that the estate is good by reason of the estoppel, Pollexf. 67. If the heir does not claim the land from him who made the estoppel, but by his own purchase, or by another ancestor, he is not bound by the estoppel, Id. 460. But here the decree and sale operated on the estate of the intestate, for by a sale made by an administrator by order of a judge of probate or surrogate for the payment of debts, the estate passes to the purchaser by operation of law, so that he is in the estate of the intestate; — the land descends, but the'interest of the heir is liable to be defeated by a sale made by administrators. Reed v. Williams, 7 Wheat. 114. Buckly v. Pollard, 20 Johns. 420. One of the reasons why estoppels are allowed is, that what once a man has alleged, is to be considered true, and he ought not to be permitted to contradict it, as in Willing et al v. Brown, 7 Serg. & Rawle, 407. One with whose privity, and under whose direction, on an execution against him, a marshall’s sale was made of an estate as his, shall not be permitted to contradict it; and what is, perhaps, more to the purpose, the doctrine of estoppel has been held with regard to acts in the Orphan’s Courts. The heir at law has been estopped by his acts, in this court, from asserting his right, and thereby converting real into personal property. Appeal to the Supreme Court, of John Anderson, Administrator of Christopher Griffith, deceased. 4 Yeates, 35. This estoppel is not unconscientious, depriving one of his right of inheritance, but it is where one qua heir has received the inheritance and conveys it, he shall not be permitted to receive it again, by falsifying the record, and denying his heirship, and keep the benefit which he has received in that character. It is a doctrine of legal policy, forbidding a party to a transaction to deny or falsify it, when he has received a benefit; an estoppel running with and working on the land. If James M‘Pherson is a party to the record, that which he has done so solemnly, and deliberately avowed, that, by means of which he was supported, he shall not be permitted to disturb. Infants are represented by the administrators, in these proceedings, as they are in case of valuation, by the guardian, who may accept, and bind his infant ward by a recognizance to any jamount. Gelbach’s Appeal, 8 Serg. & Reticle, 205. Suppose all the children to have refused, and a sale made by an administrator under the order of the Orphans’ Court, which'might be — could John then have recovered from such purchaser ? But I am anticipating — this falls under another head. Considering this sale as a proceeding in rem, to which all those claiming under the intestate are parties, my opinion is, that a chancellor would postpone the present plaintiff, and administering justice, as we do in this mixed forum of law and equity, that in this action of ejectment, which, with us is in the place of a bill in equity, he-ought not to recover. At law it would be an estoppel, which Chancery never would relieve against, for both law and conscience demand that he should be estopped. And it is the great excellence of a Court of Equity, that it may deny its aid where justice requires it, and lend it on such terms as it may think proper to .prescribe; and though I cannot myself discover any solid objection to that conclusion, yet it may seem to others, that it is stretching the doctrine of estoppel further than it has yet been done. I put the case on another ground, an impregnable ground, one which will disturb no man’s possession where it has been fairly acquired and long enjoyed, and where the defendants have so long reposed on that full faith and credit which the law bestows on all judicial tribunals acting within their proper sphere of jurisdiction, and on decrees under which so many estates are daily conveyed ; a ground, which, while it unsettles no former decisions, confirms to that most useful tribunal, the Orphans’ Court, the sanction which every court of record holds. It is enacted by the act of 1713, establishing the Orphans’ Court, that the justices of the peace shall hold and keep a Court of Record in each county, which shall be styled the Orphans’ Court; and, by the Constitution, the judicial power of the Commonwealth is vested in a Supreme Court, in a Court of Oyer and Terminer, and General Jail Delivery, in a Court of Common Pleas, and Orphans’ Court, so that this tribunal is not only a court of record, but a constitutional court. By the 8th Sec. of the Act of 1713, it is provided, that the process to enforce obedience to the warrants, 'sentences, and orders, concerning any matter or thing cognizable in the said court, shall be by imprisonment, and sequestration, . as fully as any court of equity may or can do. Appeals lie from their decrees and sentences to this court; and the Orphan’s Court,- in matters within their jurisdiction, proceed on the same principles as a court of Equity. Guier v. Kelly, 2 Binn. 299. The principle on which I hold the sentence or decree of the Orphans’ Court conclusive is, that it is a general rule of our law, that where any matter belongs to the jurisdiction of one court so peculiarly, that other courts can only take cognizance of the same subject, incidentally and indirectly, the latter are bound by the sentence of the former, and must give credit to it. This deference is properly shown by those who have not the authority directly, or ex professo, but only by accident and collaterally. It would be a great waste of' time to refer to the various decisions to support a position so undeniable, and a rule so universal; those who are curious to examine the subject, I refer to Hargrave’s Law Tracts, 451. Such a sentence as the one we are considering is definitive-*— it passes in rem judicatam — the thing is finally judged, not without appeal, for that is given to this court; but we are not reviewing an appeal from this sentence, but, as a court of error, the decree of a court of Common Pleas, which had not a direct cognizance of the subject. It is a proceeding purely in rem against the estate of the intestate,, and not in personam. So much is it a proceeding against his estate, that it overrules the lien of a judgment. The estate was condemned to a sale, and may well be compared to a condemnation of goods by a court of exchequer, whose condemnation is final in an action brought to try the right of the goods. Roberts Con. Bull. N. P. 244. Scott v. Shearne et al. 2 Wm. Bl. 977. The condemnation divests the property — I mean the title of deceased. The sentence of a foreign court of admiralty, condemning property as prize, is received as conclusive evidence not only as to its direct effects, but also as to the facts directly decided by it. It required legislative alteration, and our legislature, by act 29th March, 1809, provided, ‘that no sentence, judgment, or decree of any court, exercising jurisdiction of prize, shall be conclusive evidence of any fact, matter, or thing, therein contained, except of the acts and doings of such tribunals;’ hut, well informed of the mischief of impairing the effect of the sentence on the property condemned, it carefully declares, ‘ that nothing contained in the act shall impair or destroy the effect of any such sentence on the property affected, or intended to be affected thereby; but the same shall be and remain as if the act had never been made.’ The matter which gives the Orphans’ Court jurisdiction, is the death of the owner* intestate, for if administration were taken out on the effects of a living man, or of one who died testate, the administration itself would be void, and there could be no administrator to act, no party before the court, consequently, all the proceedings would he null. Where an executor obtains payment on a probate of a void will, without suit, it c.annot be impeached, notwithstanding the probate was afterwards declared null, it being paid on the faith of the act of a judicial tribunal having competent jurisdiction. Toll. Ex. 51. The distinction in this respect is this: a probate of the will of a living person, or a letter of administration on his effects, where the person is dead, but left a will, is void ipso facto, because there is no jurisdiction; but where the person is dead, intestate, the Orphans’ Court have power over his estate, and any one acting on the faith of their judicial acts, will be protected in obeying them. The well-known distinction between erroneous acts, or judgments of a tribunal having cognizance of the subject matter, and of a,tribunal having none such, is illustrated in Griffith v. Frazer, 8 Crunch, 25. That was a case of the sale of a real estate on a judgment against an administrator durante absentia of an executor. It was there decided, that the sale was void, because the administration was void ab initio, and the validity of the sale rested on this,' whether the defendant was administrator or not of the debtor; it was ruled he was not, and that being void, all the acts' were void; and the chief justice put, by way of illustration, the case of administration to a living man. — This is totally void; it was not within the jurisdiction of the ordinary; it was hot committed to him by law; it was a case in which he had no right to deliberate ; no one representing the estate was in the case, or before the Court; consequently, their judgment did not bind that estate. But if there had been a real though erroneous judgment, which would justify the sheriff in levying on the land, the sale would have been good; but the execution issued on a judgment, that was a nullity. Now, the order of sale would justify the administrators, they would not be wrong-doers in entering and making sale on the premises. These rules would apply more properly and peculiarly to sales by order of the Orphans’ Court, than to the various instances to which they have been applied. It is a common and usual mode of sale; fewer sacrifices are made than at sheriffs’ sales, and they are less expensive, with an equitable power in the court to confirm or reject them as justice may require, proceeding, as this court always does, on principles of equity. But it never could be imposed as a duty on the purchasers at the end of twenty years, to prove the observance of every direction of the acts; as, for instance, who put up the advertisement; it never can be that the title of a fair purchaser should depend on such perishable testimony. If (and it is the best and fairest guide,) it is to be considered, as it would be if the Orphans’ Court were a court of Chancery, and had made this decree, and a fair sale had been made, and the decree executed by a conveyance from the administrators, would the purchaser be bound to look beyond the decree, if the facts necessary to give the court jurisdiction appear on its face, that is, that there are debts, children to maintain, and not sufficient personal estate for both these purposes ? If such a purchaser is not protected, then, as was said by the Lord Keeper, in Windham v. Windham, 3 Ch. Rep. 12. where a like attack was made on a sale under, decree of a court of Chancery, ‘ you blow up with gun-powder the whole jurisdiction;’ and here, if the protection be denied to honest purchasers, you lay a train of gun-powder through the whole state, and this decision would be a signal to set fire to it; — for nothing has .been more irregular than the practice of these courts generally; there may be exceptions, but they are very rare, These orders depend on loose scraps of paper deposited in untitled pigeonholes, or packed up as useless lumber in old trunks 5 and when to this, is added, and it is a sore evil, their transmission from hand to hand, as the clerks of these courts are moved off the stage in rapid succession, this would render this species of title so precarious and insecure, that if, at the end of thirty years, or perhaps snore, the purchaser was bound to produce every inventory, statement, or return of sale, no man, no prudent man, would buy at such sales. In some counties I would not take fifty per cent, to seeure the purchasers. Nothing so much requires legislative attention as the proceedings in the Orphans’ Courts, for as sure as we descend into our graves, so sure into this court we must come; and the man would be a real public benefactor who would devise set forms, and furnish directions in conducting the vast business in these courts, where we every day find so deplorable a system of confusion. Whenever the sales are called in question, we find the courts declaring, that these irregularities must be overlooked; after a lapse of years all must be presumed to have been solemnly transacted; presumptions made in favour of what does not appéar. Messinger v. Kintner, 4 Binn. 105. The presumption always is, that they are regular, and it lies on the party impugning them to show their irregularity. So far even has liberality been carried, that parol evidence was received of a sale which had not been returned. Rham v. North, 1 Yeates, 118; and Mr. Justice Yeates, with an experience of fifty years in the business of the Orphans’ Court, and whose knowledge of the mode of conducting it was greater than any one man living or dead possessed, in Snyder’s less. v. Snyder, 6 Binn. 496, exclaims, £What! shall purchasers be affected by the unskilfulness or negligence of the proper officers ?’ A substantive compliance only with the act is required. If it appears, on the facts disclosed, to the Orphans’ Court, that the debts cannot be paid, and the children brought up, without selling the had, and they are fully satisfied on these points, their power is called into full exercise. The court in this instance was fully satisfied of these facts. If the purchaser was responsible for the mistakes of the court in point of fact, after they had judged on the facts, and acted upon them, these sales would be snares for honest men. Where there are debts, as it is not denied but that there were, the administrators represent the real estate, and the purchaser holds the land, sold by order of the Orphans’ Court, discharged of the lien of the judgments against the deceased. 4 Dall. 119. The proceedings are always against the administrators to compel a judicial sale, and never against the heir or terre* tenant. 1 Yeates, 238. 1 Peters’ Rep. 273. 2 Serg. & Rawle, 377. 2 Cranch, 458. The surplus, after discharging the judgments, goes into the administrator’s hands; payment to him is good, unless notice be given to the sheriff, and the money ordered to be paid into court. If the order of sale is to be considered as a proceeding in Chancery, which I think it is, the petition of the administrator is considered as a bill in. Chancery, in which, by the Act of Assembly, he is the sole pariy representing the estate. It is very important to see ho\v purchasers, under an order of sale by a court of Chancery, stand, where sales can only be resorted to, for payment of judgment creditors, in default of personal estate. There the heir is the party, the administrator representing the personal estate. A purchaser under the decree is never affected by even a palpable error in the decree, e. g. in not giving day to a judgment creditor, to show cause, or in directing too much to be sold, .or in decreeing a sale to satisfy judgment debts without an account of the personal estate. On a full examination of the chancery authorities, without going through a tedious detail, this is^very much the doctrine and the language of the chancellors. A purchaser 8 not bound to look into all the circumtanees, nor to go through all the proceedings, from beginning to end. On the contrary, the general impressions the decisions give, is this, that a purchaser has a right to presume that the court have taken the necessary steps to investigate the rights of the parties, and that it has, on that investigation, properly decreed a sale. Then he is to see that all proper parties are before the court; and he is further to see, that in taking the conveyance, he takes a title that cannot be impeached aliunde; and he has no right to call on the court to protect him from a title, not at issue in the cause. Although the decree may be erroneous, the title of the purchaser ought not to be affected. And why? Because, as the chancellors say, it would introduce great doubts in sales made by the authority of that court, which would be highly mischievous. This is the present doctrine of the court of Chancery, but the principle is not modern. In Kitely v. Lamb, 2 Ch. R. 405, where a bill was filed, praying, that a sum of money in the hands of a trustee, might be laid out for the benefit of the plaintiff, the bill was dismissed, and the decree of dismissal signed and enrolled, after which, the trustees paid the money to the other party who had claimed it. On a bill of revivor, that decree was reversed, yet the court determined, that in regard they had relied upon the dismission, signed and enrolled, they were indemnified thereby, and that the plaintiff should be put to seek his m'oney against the person to whom the trustees had paid it, on. the ground that whilst the judgment remained in force, it barred the right, and justified the parties, though they paid it voluntarily, and without suit. The purchaser is not bound to see further back than the order of the court; he is not to see whether the court was mistaken in the facts, of debts, and children; his contract is, in truth, with the court; and, in fact we must come to the point, that the purchaser has as little to do with the irregularities of-the proceedings, as if it had been a sale for a debt of the intestate on a judgment against the administrator, by the sheriff hold inga venditioni exponas, in which case, though the debt has been paid, and nothing was due, still the defendants, or the heirs of the intestate, have no right against the purchaser. A stranger to the proceedings, could not be permitted to prove that fact, or if he did prove it, or if the judgment was reversed for any error, could it affect the purchaser ? Nothing would create a pause in my mind, or hesitancy in my judgment, unless it be the reluctance I should feel in overturning former decisions. I know an impression has prevailed, that these irregularities can be inquired into in ejectment, and some dicta, at Nisi Prius, are found in the books, to favour that impression. A very eminent judge of the present day, has said, that he wished there had never been a Nisi Prius case reported ; and surely our .decisions ought not to be governed by them, unless, by a sesíes of determinations they have ripened into law; and if they are not supported by law and reason, tho eonveniencé of mankind requires that our decisions should not be governed by them. One thing-1 may venture to assert without the hazard of contradiction, that there has been no solemn determination by this court, of this very question; I therefore consider it as an open one. No sale ever has been declared void, in ejectment against a purchaser Iona fide, for any of the alleged irregularities, or because the decree of the court was founded on a mistake. The case of Larrimer v. Erwin was at Nisi Prius, and the report of that case warns us against confiding in these decisions. I have a proper respect for judicial decisions where it is clearly ascertained what they are, but where they depend on memory or such indistinct evidence as to leave it doubtful, they have with me little weight, when they are at variance with the soundest principles of policy and justice. The chief justice cited it in Messenger v. Kintner, and, as afterwards explained by him, in Huckle and Wife, v. Phillips, 2 Serg. & Rawle, 7, the court did not rely solely on the non-settlement of the accounts, but on the circumstances, particularly on this, that before the purchaser had paid his money, the administrator had settled his account, by which it appeared, there was a surplus in his hands after payment of all debts; and Mr. justice Yeates treats that case with little regard. He says, in Snyder v. Snyder, 6 Binn. 497, ‘ if that decision were, that a sale was void, merely because an administration account had not been .settled, he could not assent to it. Nineteen out of twenty sales would be rendered void, should the doctrine be established.’ And with strong emphasis he asserts, “ that the decree of an Orphans’ Court, in a case within its jurisdiction, is reversible on appeal, and not collaterally in another suit.” In Messenger v. Kintner, the court did inquire into the proceedings of the Orphans’ Court, because there they considered the decree as a mere nullity on its face. It purported to be the partition and valuation of a man’s lands; it was a proceeding against his estate, and not the estate of his father, in which he was alleged to be bound by proceedings unsanetioned by law or justice, where neither he, nor his guardian, or next friend was a party; it was' all coram non judice, and tainted with fraud, which would vitiate the most solemn acts. I do not quarrel with this decision — it does not come in my way. When the decree in Fullerton’s Case, *at Nisi Prius, at Chambersburg, was assailed on the ground, that there were only debts, and no younger children, it was sustained; 4 Dall. 451, 4 Yeates 523, and in Rham v. North, before Yeates and Smith, justices, at Nisi Prius at Harrisburg, where the order required no return of sale, and none was made, a sale proved by parol was supported ; and so in Huckle and Wife, v. Phillips, 2 Serg. & Rawle, 4, a decree of sale on the ground of maintenance of a child only, was held good, although there were former sales for payment of debts; and in Bickle v. Young, 3 Serg. & Rawle, 234, where the whole proceedings and sale were conducted in the name of one administrator only, when there were two, and in Snyder v. Snyder, the same objecjection was made and did not prevail. These are all the reported cases, and yet the purchaser has been hitherto protected except in Larrimer v. Irwin, the circumstances of which are not stated. In the case of Davis v. Huston, 2 Yeates, 289, the lands of the intestate had been valued under a decree of the Orphans’ Court, and taken at the valuation by a putative daughter, and sold by her, and the purchaser set up her illegitimacy as a defence against the payment of the purchase money, and this defence prevailed. There was in Messenger v. Kintner, a proceeding against the estate of the heir, and not of the ancestor; and in fact it was a controversy between the legitimate and illegitimate child, and against such estoppel, we have seen from Carter’s Reports, equity would relieve. It is true, that the chief justice, in Snyder v. Snyder, spoke of a long practice of inquiring into these proceedings in actions of ejectment, acknowledging its inconvenience. So far as these irregularities go to show a fraud, or to corroborate other proof of a fraud I agree. Mr. Justice Yeates took a view of the subject which meets my assent and -approbation, and I cannot give his-conclusion better than in his own words. “ I consider the general remark to be correct, that the decrees of the Orphans’ Court, in. a case within their jurisdiction, is reversible only on appeal, and not collaterally in another suit. The settled rule is, that the merits of a judgment can never be contested in an original suit either in law or equity, 2 Burr. 1009. The maxim is de fide et officio judiéis non recipitur questio. Hard. 127. The defendant in error in Messenger v. Kintner, a minor, somewhere about nine years of age, was attempted to be bound by proceedings unsanctiorned bylaw and justice, to which neither he, nor his guardian, or next friend, were parties ; it was res inter alios acta, and no, presumption could be made in favour of what was done. I assimilate the present case, to a sheriff’s selling land which he has taken in execution by process of law. The judgment concludes all irregularities in the previous proceedings, except where the plaintiff in the execution becomes the purchaser, Goodyer v. Junce, Yelvert, 79; but- the sale must be fair and just, uninfluenced by threats or violence. Here the lands have not been aliened by the first purchaser, but remain in his children, whose guardians have leased to the defendant. The true merits of the case rest on the honesty and fairness of the public sale, and may be fully contested in the present suit.” 6 Binn. 499. It gives me additional confidence in the opinion I have formed, to find the chief justice in considering the question again, in Selin v. Snyder, 7 Serg. & Rawle, 166, which was the same as Snyder v. Snyder, new parties being added, declaring, “that the Orphans’ Court were acting within their jurisdiction. They had power to receive and grant the order for the sale of John Snyder’s estate, and therefore what is averred on the record cannot be contradicted. The sale may be avoided if unfairly made, but the assertion in the record, that the parties appeared in court, must be taken to be an absolute verity.” “ The purchaser is bound to look to the jurisdiction of the Orphans’ Court, and, in some instances, the validity of the proceedings has been contested in the courts of common law. But the truth of the records concerning matters within their jurisdiction cannot be disputed.” And-again, in the Supreme Court at Philadelphia, in December last, in Kennedy v. Wachsmuth, he repeated this well settled principle. The court has here decided, that there were debts, and children to support, and no personal estate to pay the debts, and support the children, and on that state of adjudged facts they decree a sale; Beyond the decree, the purchaser is not bound to look. The inquiries upon an ejectment are: Was there an administrator,' and order to sell, such as would authorize the administrator to make sale; was the sale fair? The irregularities or ■ mistake of facts after sale confirmed, money paid, conveyance executed, possession for twenty years, improvements of twenty times the value of the property, fair purchasers deriving the title by subsequent conveyances, cannot affect the purchasers. These objections, on the return of the sale, might and probably would have been sustained by the Orphans’ Court; but these and all the other errors noticed by the counsel of the plaintiff in error, ought not to overturn these fair and honest proceedings and sales. I have not concluded it necessary to go into detail on the’various errors assigned. The present opinion in its general scope embraces the whole of them, and though there may be some abstract opinions of the court, to which I cannot accede, yet, as in the main the charge is right, there can be no reason for reversingthe judgment. If there were irregularities as to the advertisement, that was error of judgment of the administrators. Where there was no fraud intended, and where the proceedings were intended to be fair and regular, they ought not, after the confirmation by the Orphans’ Court, and so long an acquiescence, 'to be overthrown, to the injury of subsequent bona fide purchasers. It was insisted that whatever might be the fate of the first sale, the second was clearly void. I cannot distinguish them. The act of 1794, under which they were made, provides that the Orphans’ Court may from time to time order sales, for payment of debts, maintaining the children, and improving the residue. The purpose is joint; if the first does not produce a sufficient sum for all the purposes,, the order may be renewed until all the purposes are satisfied; all will be considered as one transaction, and this was decided in Huckle and Wife, v. Phillips. The doctrine I advance is, that where there is a direct sentence on the very point, such is to be received as conclusive evidence, not to be impeached fi’om within, but like all other acts of the highest judicial authority is impeachable from without; and though it is not permitted to show that the court was mistaken in th© original action, it may be shown that they were misled by some collusive aet between the parties,* and this was decided by the opinion of all the judges in England, in the duchess of Kingston’s trial in the house of Lords. 9 State Trials, 268. Collusion being a matter extrinsic of the cause, may be gone into by a stranger and tried by a jury. It might be here inquired into, whether there was collusion between the administrators and the first purchasers in obtaining this decree;’ but that is not pretended. There is a common mistake of all, at least of one of the administrators, of the court, and of the purchasers — a mistake arising out of an unknown fact which took place in a foreign country. A man is chargeable for goods sold to a woman, whom he represents as his wife, though they are not in fact married. One more authority I add, Commonwealth v. Greenwood Turnpike Co. 1 Cont. R. 1. 7. Turnbull, justice, in delivering the opinion of the court, said, “ a judgment, decree, sentence or order, passed, by a competent jurisdiction, which creates or changes a title or any interest in estate, real or personal, or which settles and determines a contested right or fixes a duty on one of the parties litigant, is not only final as to the parties themselves and all claiming under them, but furnishes conclusive evidence to all mankind, that the right, interest, or duty, belongs to the party in whom the court adjudged it.” The Orphans’ Court had authority to direct the administrators to mortgage for payment of 'debts, and support of children, not exceeding one third the value of the estate. Now, if instead of a sale, money had been taken upon mortgage, fairly applied by the administrators, could it be endured, that the mortgagee should lose his money, advanced on the faith of a decree to which all are bound to give credit, because it afterwards turned out in point of fact, that the intestate had a wife in Ireland, and his children were illegitimate, and that, though there were debts to pay, of the intestate? No honest and intelligent man, lawyer or layman, would hesitate to give an answer; that answer would be, justice forbids this. If it were not that some former decisions, at Nisi Prius, had mutilated the uniformity of the law, relating to decrees for sale, — sales executed, and confirmed by the court, would be sustained, according to the universal rule governing the sentences of every court of record, when acting within its jurisdiction. The determination of this court, in the recent case of Selin v. Snyder, has restored the law, by declaring, that testimony shall not be received to contradict’the record. The error assigned was not a mere formality, but a vital objection, a charge that the proceedings were conducted against the consent of the administratrix, the mother of the children of John Snyder. It is impossible to distinguish; the cases in principie are the same, for if it were perxnitted to falsify in uno, it would be permitted to falsify in omnibus. The strongest possible case is that cited in 10 Vin. Tit. Record C. pl. 2. from Br. E.pl. 78. “ Record of outlawry of divers persons, was certified in the exchequer, among whom, one was certified outlawed, and was not outlawed, and that his goods forfeited, were in the hands, of I. N. and upon process made against him, he came and said he was not outlawed ; and parcel of the record came by chancery, out of B. R. into the exchequer; and Green, justice of B. R. came into the exchequer, and' said he was not outlawed, but that it was misprision of the clerk. Skipwith said, Though all the justices would record the contrary, they shall not be credited, when we have recorded that he is outlawed. Quere: What remedy is for the party ? It seems it is by writ of error, inasmuch as there is no original against him, but only record of outlawry without original. Br. Record pi. 49. And in the same book, pi. 4. cites Br. Err. pl. 78, it is said, the diversity is this, that a man may assign error on a thing separate or out of the record, but he cannot falsify it.” The decision in Selin v. Snyder, impresses the decree with the seal of inviolability, where a fair and bona fide purchaser claims under it, where it was a duty for the court to decree and where the decree states such facts, as .give the court authority to make the order of sale. Cases of individual hardship may arise from adhering to this principle, but the old maxim of law is, that a private mischief shall be rather suffered, than a public inconvenience, and this is applied to all public sanctions in government and legislation, and it never can be more safely applied, than to the sanction of judicial sales ; and if these purchases are not protected, but remain open to inquiries as to the regularity and exactness of the proceedings of this tribunal, this useful power will be disused, and, in time, abolished. I have stated what I conceive to be the legal and fundamental rules of property, and if the question was to be decided, by appeal, to plain common sense, its verdict would be the same as the judgment of the law. On the view I have taken of this case, I have not thought it necessary to dwell much on the minor objections; they are absorbed in the great question; the final decision of the cause rests on that, and it is of consequence it should so rest. All others sink into insignificance, but the great question of the conclusiveness of these decrees for sale by order of the Orphans5 Court, required an unequivocal determination. It is one on which, the title to so many estates depends, that it could not without great mischief and inconvenience be postponed, and it would be unworthy to evade it; it is on that ground also I wish to be distinctly understood that the judgment is affirmed. I consider the rule as one of the indelible land marks of property, invariably established by the well-weighed policy of the law,' and has stood the test of ages, founded on the great principle of public convenience, and necessity, and ought not to be shaken by any accidental mischief to an individual, which occasionally will occur from every general rule. This, like other general principles, may produce disadvantages unjustly to an individual, but it is on this condition that general rules are adopted; partial inconvenience is the inevitable consequence, but the production of general good authorizes the establishment; ‘ partial evil is universal good.5 But the hardship, if considerations of hardship, ought ever to mingle in the administration of justice, would fall on the defendants. The Irish heirs never dreamed of this inheritance, it was to them totally unexpected, they never calculated or acted upon it as a right which might descend on them, it was a mere windfall, as little looked for, as the descent of the imperial crown on their heads, and as much a surprise; to them it would be no disappointment. But the defendants have laid out the labour of their lives upon it, have looked up to it as their support during life, and a provision for their children on their death; they have considered it as their own ; all their plans and habits of life have been formed in the full belief of enjoying that which they had fairly acquired on the faith of a judgment of a court having authority. And, as it respects the present plaintiff, what grievance has he to complain of, except the baffled expectation of an iniquitous speculation, and except that he is not suffered to sell the very hands that fed him, and is disappointed in the premium he expected from stigmatizing publicly his mother, and defiling his own nest? It maintained and educated him, it supported his mother and sister; and the reserved part of the lot, rendered valuable by the money of the defendants, he still enjoys — he holds the worth of his money! One thing is very plain, that, either the real value was concealed from the Irish heirs, or they, from a sense of justice to the purchasers, or humanity to the plaintiff, parted with it for its value as it stood at the death of the intestate. If the state of improvements had been communicated to them, then they conveyed to him as the natural heir, or as trustee for the purchasers. Considerations of hardship are of little value ; courts of justice do not sit to inquire how the loss of property may press on this individual, or that, who has held it without title. The usual subject of consideration for the court, is, whether it has been held without title, and if they find that it has, to restore it without delay, to the right owner. There is nothing of conscience in his claim, and the law is against him. This opinion I háve formed after long and repeated consideration. I have explained the ground of it I fear, with too much prolixity, and perhaps, have repeated too often the same thing, but public duty required a deep investigation, and full explanation of the subject. The justice of the ease is so clearly with the defendants, that it would be incumbent on the plaintiff, who wishes to establish a rule contrary to justice and equity, to produce some well-established authority, showing, that there is an inflexible rule of law, in opposition to justice. He has failed to do this, for the invariable rules of law, and the justice and equity of the particular ease, are in exact and happy conformity. Judgment affirmed. Since the opinion was drawn up, I find in 1 Vol. of the Reports of Nott 8? M‘ Cord, of Cases in the Constitutional Court of South 'Carolina, 329, that the decree of the court of ordinary, revoking the probate of a will, was held to be the judicial act of a court possessing jui'isdiction over the subject matter of dispute. And the law holds the exercise of this right so sacred, that no evidence will be permitted to contradict it in relation to the subject in dispute, so long as it remains unreversed by the superior tribunal; and this can only be done by appeal to the Common Pleas, according to the act of assembly. And in Waters v. Woodward, same page, an existing judgment or decree of a chancery court, upon a matter within its jurisdiction is conclusive of the right of the parties in any other court of concurrent jurisdiction ; nor do the decrees of a court of equity form any exception to the general rule. Sitting in a court of law, judges are not at liberty to enter into the examination of the justice or injustice of the decree of a court of competent jurisdiction. " Unless it comes before them on a writ of error or appeal, it must stand until reversed by a court of competent authority to review it. In Scott v. Hancock, 13 Mass. 162. under a similar proceeding, Jackson, justice, said, “ these orders of sale by administrators affect the inheritance, and if we should order the'sale as prayed for, by the administrator, we should decide these questions conclusively against the heirs, who would be disinherited to the extent of what should be sold under the order, without any trial of the fact by a jury, (and without any opportunity of reviewing the judgment by writ of review, writ of error, or in any other manner.” The claim of the ci’editors is paramount to any title that could be acquired after the death of the testator. And in Moers v. White, 6 Johns. Ch. Rep. 384. Chan. Kent, entirely approves of this doctrine, of the conclusiveness of an order of sale, and refers to Read v. Williams, 7 Wheat. 60, before cited, and ob serves, that the validity of the order of sale was not questioned, because it was the order of a competent court of peculiar and exclusive jurisdiction; and it was an extraordinary and monstrous case. Letters of administration were granted after the lapse of 28 years, and the right to sell, after the lapse of 31 years from the death of the intestate, yet the decree of the court being res judicata, it could not be questioned in a collateral action. Thus, we see how the question stands by the law of England, and our sister states, New York, Connecticut, Massachusetts, and South Carolina. The extent of real property, that-must be in the course of 20 years, transmitted by this mode of sale is immense, and the number of persons, through whom that property passes is inconceivable. Can it be then, that a matter decided by the Orphans’ Court, a court of peculiar jurisdiction, shall be controverted at the end of any given period, and that a latent claim, which no man of intelligence could foresee — known to no one, or if known, concealed, should be put in operation, by an heir, and sweep away the labours of a life-time, and that because the tribunal appointed by the law to decide, had erroneously found a fact on prima facie evidence, as the cohabitation here was, and then without notice, or the means of notice, the decree of the court should be disputed after such long possession ? As the doctrine of the law, I hope I have satisfactorily shown it shall not. Tiluhman, C. J. was absent, in consequence of sickness. Chancellor Kent, in Vanhorne v. Fonda, 5 John. Ch. Rep. 388, states a principle in Equity strongly applicable to this case. Admitting- that one tenant in common, may, in a particular case, purchase in an outstanding title for his own benefit, yet, where two devisees are in possession of land, under an imperfect title, derived from their common ancestor, one of them cannot buy an outstanding adversary title to deforce and expel his co-tenant, for such purchase will inure to their common benefit, subject to an equal contribution to the-expense. The reason holds equally in the law — it is not consistent with good faith, nor the duty which the state of the parties as claimants of a common subject created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole to himself, and thus undermine his co-tenant. It would be an unusual act, repugnant to a sense of refined and accurate justice. It cannot be tolerated in a common subject, in which the parties had an equal concern, and which created an obligation to deal candidly, and honestly, with each other. Communityof interest produces a community of duty, and there is no defence on the ground of justice and policy where one co-tenant buys an outstanding incumbrance, or an adverse title, to deforce and expel the other. Here, to be sure, the estates were separate, but they all were derived from the same source, James M‘Pherson, now, long enjoyed under the same title, and the equity of the purchasers against the plaintiff is stronger than the case of co-tenants.

, The opinion of the court was delivered, May 7th 1868, by Strong, J. The facts out of which the question raised by this-appeal arises, are briefly these: Before his death, Rowland E. Evans, the decedent, wrote a testamentary paper, bearing date May 24th 1856, and signed it either then, or on some succeeding- day. Immediately after the signature, and in close juxtaposition with it, he wrote ,a brief addition, merely directing what should be done if any one of the classes to whom he had given his residuary estate should fail, and noticing that a word in the thirty-first line was somewhat blurred. This addition was also dated May 24th 1856, and it was signed. There is no evidence, other than that which arises from the dates, when either of these signatures was made, unless it is found in an attestation clause following the last signature, and signed by two witnesses after the middle of June 1856. The clause is as follows: “ The above will and codicil were signed and published in the presence of us, who have subscribed in the presence of each other and of the testator.” There was no other attestation clause attending the first signature of the decedent. On the other side of the sheet upon which the foregoing had been written, the decedent subsequently wrote and signed another testamentary paper or codicil dated July 21st 1858. This was attested by two other witnesses. The will and codicil or codicils being all upon one sheet of paper, it was folded and endorsed in the handwriting of the decedent, “will.” After his death the paper was found in a book-case, behind the books, in a paper box, bound as a pamphlet, representing a book, but endorsed as a pamphlet. In the box were other papers of little or no value, and the draft of another will unexecuted. The condition of the paper when found was this: the word “will,” with which it had been endorsed, was erased by an ink line drawn through it, and immediately thereunder, close to it was written in the decedent’s handwriting the word “ cancelled.” The signature of the codicil of July 21st 1858 was erased, and the word “ can-celled” written under it. The signature to the addition dated May 24th 1856 was also erased, but the other signature remained. The paper had two rents perpendicular to the folding, extending from one-quarter to one-third across the fold, and making four considerable rents when the sheet was unfolded. Upon this state of facts we are to determine whether the will had been revoked, or, in the language of the statute, repealed. Our Statute of Wills of 1888 enacts that no will in writing, concerning any real estate, shall be repealed, nor any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as is provided in regard to the ■execution of wills, or by burning, cancelling, obliterating or destroying the same by the testator himself, or by some one in his presence and by his express direction. A similar provision is made in regard to wills respecting any personal estate, adding ■only, as a mode of repeal, a nuncupative will. There are then two modes under the statute, and only two, in which wills executed according to the required forms of law can be rendered of no effect, if we except revocation by a nuncupative will, which this case does not call upon us to consider. One of these modes is by another will, or codicil, or other writing, declaring a repeal. This is revocation by another and distinct instrument of writing. It works the repeal by force of the words contained in the new instrument. But to enable the will, codicil or other writing to have such an effect, it must itself be complete, executed and proved in the prescribed manner, namely, as a will. The other mode of repeal is something done to the will itself, something more than mere intention expressed. It must be intention to annul carried into execution by acts done to the paper. This mode is described in the statute as “ burning, cancelling, or obliterating, or destroying the same,” (that is, the written will), by the testator himself, or by some one in his presence, and by his express direction. It is not claimed in this case that the will of Mr. Evans was repealed in the mode first above-mentioned, but the ground taken by the appellant is that it was annulled in the second mode, by cancellation and destruction. The statute does not declare what shall amount to cancellation. The word is not a technical one, and therefore the legislature must be presumed to have used it in its ordinary and commonly understood sense. It amounts to nothing to show what the original etymological meaning of the word “ cancel” was. Long before the statute was passed, it had acquired an accommodated meaning, plain to the common understanding. To most minds it did not suggest a thought of its primary signification. No one supposed that when a cancelled bond, or note, or power of attorney was spoken of, it was intended exclusively a bond, note or power over which lattice-work lines had been drawn. No one would have doubted that drawing parallel lines or curved lines across a bond, or a single line through its signature, would amount to cancellation, if done with an intent to annul the instrument. Nor would any one have doubted that writing the word “ cancelled,” or the word “ annulled,” upon any other instrument than a will, would be an act of cancellation, and effective as such, if done by one who had authority to destroy it, and with an intent to destroy. The reason is that the act puts the instrument into such a condition, that it shows on its face its invalidity the moment it is produced. It is a common, ordinary mode in which writings are annulled, and the act of cancellation being palpable, and inseparable from the writing, there can be no mistake in regard to an executed intention to render it of no effect. How then can it be maintained that the word “ cancelling” was used in the statute in any peculiar sense ? Why, as it confessedly may be, in case of a bond, note, check, letter of attorney or any other instrument, may not a will be cancelled, not by words alone, not by words in writing alone, but by an act done to the will which stamps upon it an intention that it shall have no effect, though the act done he not complete obliteration, or physical destruction ? Can it be that a will may be repealed by straight or crooked lines drawn upon it, and yet not by lines in such form as to express words ? Putting the one on the paper is as much an act done to it, as is writing the other, and no more, but the latter may indicate the purpose of the act more clearly than the former can. It is true we have to do with the meaning of the words “ cancelling,” “ obliterating” and “ destroying,” as used by the legislature, but there is nothing in the statute that requires us to attach to them any unusual signification. Let it be admitted that, collocated as they are, we are required to consider them as defining acts of a similar nature. We do. All are acts done to the will itself, and they are not used in their absolutely literal sense. Even burning does not mean entire consumption by fire. This is not claimed, and under a statute very similar, it has been so ruled: Bibb ex dem. Mole v. Thomas, 2 Wm. Blackstone 1043; Reed v. Harris, 33 Eng. C. L. 57. Nor is obliteration, as meant in the act, nothing short of effacing the letters of the will, scratching them out lor blotting them so completely that they cannot be read. A line (drawn through the writing is, doubtless, obliteration, though it ^may leave it as legible as it was before. So the destruction spoken of is not necessarily annihilation, or a change into other forms of matter. Tearing into fragments is unquestionably destruction, though the fragments may be reunited. All the words are used in their popular sense, and thus used they secure the object the legislature had in view, a complete manifestation of an executed intention to repeal. Each word is expressive by an act done to the paper itself, a mark upon it, evincible of a present intent that it shall not operate as a will. Revocation by cancellation then is not to be understood to mean ¡exclusively drawing crossed lines upon the paper, but it means any j act done to it, which, in common understanding, is regarded as cancellation, when done to any other instrument. Undoubtedly it must be an act done to the will itself, and it must be done animo . cancellandi. In Williams on Executors 110, the doctrine is thus ¡Stated: “ The principle appears to have been established that if the intention to revoke is apparent, an act of destruction or can- / cellation should carry such intention into effect, although not literally an effectual destruction or cancellation, provided the testator Shad completed all he designed to do for that purpose.” Turning now to the facts of the case, we cannot doubt that there was an intention of the decedent to repeal his will, and that the intention was executed. It is impossible to look at the paper without seeing that he did to it something plainly showing his Intent that it should have no operation. Were there nothing more ¡ihan the erasure of the last signature to the writing dated May 24th 1856, it would he difficult to escape from the conviction thatl it was an act of repeal annulling all that preceded that signa-' ture. The paper first written and the addition, according to the most familiar rules of construction, constituted but one instrument. They were dated on the same day. They were attested at the same time, and by a single attestation. The attestation clause speaks of them both as having been signed in the presence of the witnesses, and as there is no evidence that there was more than one occasion when they were called upon to attest the signatures, it is a legitimate presumption that they were made at the same time. The subject of the addition also leads to the conviction that it was made contemporaneously with the part preceding. It is the completion of a partly expressed testamentary disposition, with a reference to a blot as if it was in the instrument which the testator was then writing. In view of these considerations the fact that the paper exhibits a signature preceding the added sentence, is of not much importance. Even if it was made before the supplementary clause was written (which, however, is contradicted by the subsequent attestation clause), it is evident the will was not laid aside as complete until the final signature was written. It is not uncommon for a testator to sign his name repeatedly to a testamentary paper. He sometimes signs each sheet, sometimes ai the close of every disposition, and again at the end. It is th( last which'consummates the instrument, and makes it a will, anc the erasure of the last works a repeal of the whole instrument If then the writing dated May 24th 1856, were executed at the! same time, and together constituted but one will, the obliteration of the final signature was an annulling of the whole. This, however, is not all. It has been noticed that the paper/, when found after the death of Mr. Evans, exhibited two rents across the folds, such as are frequently made with a purpose to destroy. That the rents did not reach to complete physical de-| struction, is true, but this is not necessary to amount to that destruc-'j, tion which fhe Act of Assembly recognises as a mode of repeal. | Our statute is very like the British statute, and those of some of our sister states, under which it has always been held that partial destruction, even slight, is sufficient, if accompanied by an intent to annul the will. Said Lord Chief Justice De Urey, 2 W. Black. 1043: “ The statute has specified four modes of revocation, and if these, or any of them, are performed in the slightest manner, this, joined with the declared intent, will be a good revocation.” See also 1 Jarman on Wills 132; Abraham v. Joseph, 3 Hurl. & Nor. 350; Re Simpson, 5 Jur. N. S. 1366; 4 Mass. 460. Undoubtedly if the tearing in this case was accidental, or if it was purposely done, but without any intent to destroy the will, it amounts to nothing. There must be both an act and an intent concurring. But were there evidence that at the time the rents were made Mr. Evans had said, “ I revoke this will,” or “ This is no longer my will,” beyond doubt the act done would have been effectual to work a revocation. Declarations both verbal and written are admitted to show with what intent an act of apparent destruction or cancellation was done. In this case the legal presumption is that the tearing was done by the testator. He only had custody of the will. Was the tearing accidental or intended as an act of revocation ? The erasure of the endorsement on the will, the writing on it the word “ cancelled,” the erasure of the signatures, if they show nothing more, exhibit this, that there was an intent to annul the instrument. It is said there is nothing to connect these acts with that of tearing, so as to warrant their being used to give character to it. But they are connected by the feet that they are all acts of apparent 'attempted destruction, done to the same writing, and, therefore, we think it a fair inference from the endorsement and erasure, that the act of tearing was animo revocandi. Conceding, then, that the two rents across the folds of the paper were not decisive of the intent with which they were made, the other evidence throws light upon it, and it is to be regarded as explanatory, independent of its own peculiar effect. There is yet another view of this case. It relates to the effect of the testator’s erasing the endorsement upon the will, and writing under it the word “ cancelled,” when he had written the same word under the codicil of July 21st 1858, and had erased the signature to that and the last signature to the papers dated May 24th 1855. It is to be considered now without reference to any act of tearing. Was this cancellation ? Were the question presented to the common mind the verdict would not be a moment in doubt. There are both the intent to cancel and the act done in pursuance of it. True, there was no revocation or repeal by mere force of the word “ cancelled.” Neither that word, nor any other would suffice if written on a separate paper. But, I think, a repeal is effected by the act of writing upon the will itself a word that manifests an intention to annul it. Such an act is a mode of repeal, of the second kind recognised by the legislature, a thing done to the paper on which the will is written. It would be strange if drawing ink lines across the will without obliterating a word, should amount to cancellation, and writing on it words that leave no doubt of an intent to cancel, should be anything less. It is plain that cancellation does not require a signature under the statute, nor is any form of cancellation required. As distinguished from destruction, it implies a preservation of the instrument, but with something upon it indicative that it has ceased to be operative. What that something is cannot be material, if it clearly exhibits a testator’s intent to annul. In Warner v. Warner’s Estate, 37 Vt. 356, there is a case very like the present. The Vermont Statute of Wills is similar to ours, though it requires attestation by subscribing witnesses. It prescribes as the only modes in which a will duly executed may be revoked, first, by some will, codicil or other writing, and secondly, by tearing, cancelling or obliterating. Under this statute, the question arose, in the case cited, whether a will had been cancelled. The paper propounded for probate was dated August 22d 1857. It was all in the handwriting of the deceased, except the names of the witnesses, and it was duly attested and published. It was folded and endorsed in the handwriting of the deceased: “Isaac Warner’s last will and testament.” The will was written upon one sheet of foolscap paper, covering the first page and about one-third of the second. Thus far there were no marks of obliteration, cancellation or defacement upon it. But upon the last half of the second page were written the following words: “ This will is hereby cancelled and annulled in full, this 15th day of March in the year 1859.” Several lines lower down on the page were the following words erased: “ In testimony whereof I here I have.” On the fourth page of the sheet, written lengthwise of the sheet, as folded, and below the endorsement upon the back, were these words in the testator’s hand-' writing: “Cancelled and is null and void, I. Warner.” It was conceded by counsel, and declared by the court that the will was not revoked in the first statutory mode of revocation, that is by a will, codicil or other writing. The words of attempted revocation were not attested by subscribing witnesses. They had, therefore, no operation as a will or other writing. But it was ruled that the will was cancelled within the meaning of the statute. It was considered that in the writing were combined both an act done to the paper, and inseparable from it, without destroying some of its words, and a declaration of intention. The case rests upon the position that by his act, though the act was writing, the testator had put the paper in such a condition, that when produced it showed his intent to annul it. Hence it was adjudged cancelled. The case contains a full and able discussion of the subject, quite satisfactory to us, 'and in harmony with our convictions. And there is no case in conflict with it. Mr. Redfield, in his Treatise on Wills, page 818, expresses doubts whether Warner v. Warner was correctly decided. His doubts appear to rest on the supposition that cancelling must mean erasure of some portion of the writing, a supposition which does not appear to be founded in the best reason, and they overlook entirely the grand purpose of the legislature, which was to secure substance rather than form, and demand an unequivocal and permanent manifestation of the will to revoke. We are referred by the counsel for the appellees to Grantly v. Garthwaite, 2 Buss. 90, where it appeared that the words “ last will and testament,” endorsed on the envelope of a will, had been erased, and the word “superseded” written in the testator’s handwriting. The will was held not revoked. But the facts must be carefully noted. The will itself was enclosed in an envelope, and both were enclosed with an unattested draft of another will in another envelope. It was upon this second envelope the erasure was made and the word “superseded” written. Nothing was done to the will itself. It bore no mark of revocation, nothing to show the testator’s intention that it should not continue in force. It was necessary to look beyond the instrument, or the paper on which it had been written, to discover either an act or intention of revocation. In re Brewster, 6 Jur. 56, is also cited. There it appeared that the testator had written across his signature, “ cancelled, Wm. B.,” and below the names of the attesting witnesses, “Mem., I hereby declare this will revoked and altogether cancelled, the bequests and other arrangements being rendered nugatory, &c. I intend to make another will, whereupon I shall destroy this, Wm. Brewster.” Sir Cresswell Cresswell considered the testator had done no sufficient act in law to effect a revocation, and he admitted the will to probate. He gave no reasons for his decision, but they are manifest. What the testator wrote on the will showed that he intended only a future revocation. He designed to make another will, and then to destroy the one he had made. Erom this it was inferable he did not regard his act as an accomplished repeal. The case which comes nearest to the support of the case of the appellees is Lewis.v. Lewis, 2 W. & S. 455. There the testator had written on the margin of the first page of his will, “ obsolete.” Whether the word referred to the whole will, or to the clause opposite to which it was written, was doubtful, but it was assumed to refer to the whole, and this court held the will not cancelled or revoked. Writing that word on the margin was, in the judgment of the court, neither a, burning, cancelling, obliterating or destroying the will. Of course it was not a repeal by another will, codicil or writing. But it should be observed that though the word was written upon the paper' on which the will was written, it was placed where it .could have been detached without defacing the instrument. It might have been separated and the will itself remained intact. In this respect it differed from the case now before us. There was also no evidence apart from what the word imported to show what was the testator’s intention ’in writing it, and the word itself did not clearly evince an intention to repeal the will. It expressed no more than that in the testator’s opinion the will was old, neglected, disused.. The word “obsolete” never had the sense of annulled, revoked, repealed. It is expressive of a condition, not of an act. Revocation by an act done, as distinguished from revocation by will, codicil or other writing declaring it, consists not only in the act hut also in an accompanying clear intention to revoke, and this did not appear in Lewis v. Lewis, in which respect it differed widely from what appears in the present case. The decision, therefore, is*not inconsistent with Warner v. Warner, or with the views heretofore expressed. It does not hold that a will cannot be cancelled by making marks upon it, inseparable from the will, clearly with an intent to cancel, if the marks consist of letters and words rather than lines drawn across the instrument. It does not rule that cancellation is necessarily erasure or defacement. What would have been the judgment if, instead of the word obsolete, the word cancelled had been written, and written where it could not be removed, and leave the will entire, can hardly be gathered from the case. Warner v. Warner does not, as it is argued, substitute the intention of the testator for the judgment of the law. The argument assumes that the statute used the word cancelled in a restricted sense, an assumption which finds no support in the law. As already remarked, that act which would be a cancellation of a bond, must be a cancellation of a will. We are not at liberty to restrict the act by reading it “ cancelling by defacing some material and essential part of the script.” That would make cancel-ling synonymous with obliteration. But without extending our remai’ks further, we conclude by expressing our opinion that the will of Mr. Evans was repealed by the acts of him done to it. The decree of the Register’s Court is therefore reversed, . and that of the register affirmed.

The opinion of the court was delivered, May 17th 1873, by Mercur, J. When the plaintiffs below rested their case the defendants moved for a nonsuit. This was refused by the court; that refusal is now assigned for error. If the defendant had declined to give any testimony we would consider the sufficiency of the evidence then given. As, however, much evidence was afterwards introduced, the whole should be considered together. The action was brought by the defendants in error to recover damages for the burning of a block of buildings. The fire was alleged to have been caused by sparks from the stack of the railway company’s locomotive “ Lancaster.” The buildings were situated within a few feet of the railroad embankment, and near the water-stand, where the locomotive was supplied with water. The evidence as to whether the sparks caused the fire, was properly submitted to the jury, who found they did. The defendants requested the court to charge the jury, that there was no testimony which would justify them in finding the defendant guilty of any negligence. This the court refused to do, but left it to them to determine from the whole testimony, whether the defendant, by his exclusive negligence, caused the fire. For this refusal and charge the principal errors are assigned. Negligence is the gist of this action. To recover, the plaintiff must have established the defendant’s exclusive negligence. Was there such evidence of this fact, that it should have been submitted to the jury ? It was formerly held, that where there was a scintilla of evidence of a material fact, the question should be submitted to the jury. This doctrine, however, has been overruled, both in England and by this court. In Wheelan v. Hardisty, 8 El. & Bl. 262, it is said, that an end has been put to what has been treated as the rule, that a case must go to the jury, if there was what has been termed a scintilla of evidence. The question is, whether the proof is such, that the jury could reasonably come to the conclusion that the issue was proved. Toomey v. Railway Co., 3 C. B. N. S. 146, was a case for negligence. It was there held, that it was not enough to say there was some evidence! A scintilla of evidence, or a mere surmise, that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence. In Ryder v. Wombwell, 4 Law Rep. Ex. 32, it was said by Willes, J., that it is now settled that the question for the judge is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit, if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant. The case of Ryder v. Wombwell is cited with approbation by the court, in Howard Express Co. v. Wile, 14 P. F. Smith 201. There the rule is more distinctly and clearly stated by Justice Sharswood, to be, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof; but in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so, they have the right, and it is their duty, to withhold it from the jury. The uneontradicted evidence in this case, showed that the sparkarrester was perfect in mechanical construction, and in efficient condition at the time of the fire; the learned judge, upon disposing of the rule for a new trial, states these facts to have been admitted. He ivould have set aside the verdict upon the ground that it was against the weight of the evidence, had he not been constrained by the judgment of his colleagues, his associates not learned in the law. Sitting as a court of last resort, we cannot reverse merely because we may think the verdict was against the weight of evidence. If any evidence was given, which, alone and uneontradicted, would justify an inference that the injury was caused by the exclusive negligence of the defendant below, we will not disturb it. If, upon the other hand, there was no such evidence, then the court erred in not affirming the point submitted by the defendant. The rule is well settled, that a party is not answerable in damages for the reasonable exercise of a right, unless upon proof of negligence, unskilfulness or malice. In this case there is no allegation of malice. The proof is clear, that there was no negligence or unskilfulness in the construction of the locomotive or spark-arrester. John E. Wootten testified that he was in charge of the machinery of the road. Was a machinist; had paid considerable attention to spark-arresters; had made that one of his studies; considered himself an expert upon that subject; had 300 engines under his charge, having spark-arresters; knew this locomotive and this spark-arrester ; considered it an efficient spark-arrester. It arrests the sparks as far as it is possible to do so, considering the purposes of the engine and other considerations required from spark-arresters. No better with reference to grades, the business of the road, and the necessary-duties the engine has to perform, after eight or nine years’ experiimenting; that on the Lancaster is the best they have reached for the uses of the road, the Lancaster is one of their most improved engines; the size of the fire-box is increased in it, which results in slowness of combustion, economy of fuel, and diminishes the emission of sparks. No coal-burning engines, with smaller spaces than the Lancaster, nothing larger than an eighth of an inch, would pass through. William Lorenz testified that he had been for twenty years a civil engineer; is now the chief engineer of the company; was formerly engineer in locomotive department; is familiar with spark-arresters on the road; from knowledge thus derived, and interest taken therein, considers himself an expert; knows the spark-arresters used on the coal-cars at the time of the fire, and knows of no better kind. It thus appears that the greatest mechanical skill, and the most progressive mechanical science, have united in creating the most perfect machinery adapted to this purpose. The proof is equally clear that it was in good condition. Wm. Brown testified that he was the engineer on the Lancaster at the time of the fire. The spark-arrester was in good condition, nothing the matter with it; the day before it had been examined; he had examined it the day after. Re-examined it to see if it had caused the fire; found it all right. Three other witnesses, whose duties were to examine the spark-arresters daily, testify to the good order and condition of this one. It was not quite new, but just as good as new. It was claimed, however, that an undue amount of coal had been put in the fire-box of the locomotive, and that the moving backwards and forwards while at the water-station, was negligence. A careful examination of the whole evidence fails to show us any negligence in either of these acts. It is therefore just that this company should have the benefit of the principle, that no person, whether natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a cautious regard to the rights of others: Railroad Co. v. Yeiser, 8 Barr 366. To recover, the plaintiff must have established the negligence of the defendant. Yet he has been allowed to recover in the face of the most overwhelming proof that there was no negligence. The learned judge therefore erred in not charging the jury as requested, and the first assignment of error is sustained. Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Trunkey delivered the opinion of the court, It seems to be settled law that the finder of lost property has a valid claim to the same against all the world, except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner, -who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article wras deposited in its place, the finder has no right of possession against the owner of-the building : McAvoy v. Medina, 11 Allen (Mass.) 548. An article casually dropped is within the rule. Where one went into a shop, and as he wras leaving picked up a parcel of bank notes, which was lying on the floor, and immediately showed them to the shopman, it was held that the facts did not warrant the supposition that the notes had been’ deposited there intentionally, they being manifestly lost by some one, and there was no circumstance in the case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner: Bridges v. Hawkesworth, 7 Eng. Law & Eq. R. 424. The decision in Mathews v. Harsell, 1 E. D. Smith (N. Y.) 393, is not in conflict with the principle, nor is it an exception. Mrs. Mathews, a domestic in the house of Mrs. Barmore, found some Texas notes, which she handed to her mistress, to keep for her. Mrs. Barmore afterwards intrusted the notes to Harsell, for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them, and appropriated the proceeds; whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says : “lam by no means' prepared to hold that a house-servant who finds lost jewels, money or chattels, in the house of his or her employer, acquires any title even to retain possession against the will of the employer. It will tend much more to promote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the benefit of the true owner.” To that remark, foreign to the case as understood by himself, he added the antidote: “ And yet the Court of Queen’s Bench in England have recently decided that the place in which a lost article is found, does not form the ground of any exception to the general rule of law, that the finder is entitled to it against all persons, except the owner.” His views of what will promote honesty and justice are entitled to respect,' yet many may think Mrs. Barmore’s method of treating servants far superior. The assignments of error are to so much of the charge as instructed the jury that, if they found the money in question was lost, the defendant had no right to retain it because found in his hotel, the circumstances raising no presumption that it Avas lost by a guest, and their verdict ought to be for the plaintiff. That the money Avas not voluntarily placed where it was found, but accidentally lost, is settled by the verdict. It is admitted that it Avas found in the parlor, a public place open to all. There is nothing to indicate AYhether it was lost by a guest, or a boarder, or one who had called with or without business. The pretence that it Avas the property of a guest, to whom the defendant Avould be liable, is not founded on an act or circumstance in evidence. Many authorities Avere cited, in argument, touching the rights, duties and responsibilities of an innkeeper in relation to his guests; these are so Well settled as to be uncontroverted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the floor of a room common to all classes of persons, no presumption of ownership arises; the case is like the finding upon the floor of a shop. The research of counsel failed to discover authority that an innkeeper shall have an article Avhich another finds in a public room of his house, Avhere there is no circumstance pointing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman, who immediately informs her employer, and gives him the article on his false pretence that he knoAvs the owner and will restore it, she is entitled to have it back and hold it till the oAvner comes. A rule of laAV ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in equality of rights with others. The learned judge Avas right in his instructions to the jury. Judgment affirmed. Mercur, J., dissents.

The opinion of the Court was delivered by Kennedy, J. The first and second errors are bills of exception to the opinion of the court in admitting evidence objected to by the counsel of the plaintiff in error. It seems that Elizabeth Maus, one of the terre-tenants and plaintiff in error, claimed a part, if not the whole of the land, which she held, immediately from George Maus, who derived his title thereto from Philip Maus, the intestate debtor. Any admissions therefore, made by George Maus, while owner of the land, tending to support the claim of the plaintiff below against it, would be admissible evidence against Elizabeth, the same as against George himself, had he continued to have held the land, and been warned as tenant under the scire facias. We therefore perceive no error in admitting the evidence. The third error is, an objection made by the counsel for the plaintiff in error, to the court below permitting the scire facias, after the argument of the counsel had been concluded on the trial of the scire facias, to be amended upon the application of the counsel for the defendant in error, who was the plaintiff below, by changing the amount of the judgment, as recited therein, from 50 pounds to 363 dollars and 83 cents. The debt in the original judgment, obtained in 1813, against Philip Maus, in his lifetime, was 50 pounds. This judgment was revived by scire facias, in 1S13; and the judgment of 1813 was revived by scire facias, in 1819; and that of 1819, was revived by scire facias, in 1829. The judgment given in a scire facias sued out here, upon a judgment in debt, is not merely an award of execution for the amount of the original judgment as it is in England; but having an act of assembly, which authorises the recovery of interest upon the whole amount of the original judgment, including both debt and damages allowed for the detention thereof, from the date of its rendition, in order to meet this a judgment of quod recuperet is given for the aggregate amount of the first judgment, including both debt and damages as a principal, and interest thereon up to the time of entering it and an award of execution accordingly. The amount, for which, the judgment is thus entered in the first scire facias, forms a new principal, upon which interest commences, running until paid or revived again by a scire facias sued out, not on the original judgment, but upon the one given in the first scire facias, in which a judgment is again entered for the amount of the judgment given in the preceding scire facias, with interest thereon to the day of entering it. Accordingly every succeeding scire facias that is sued out, recites the judgment on the last preceding scire facias, and the judgment given therein is for the amount of the judgment so recited with interest thereon from its date to the entry of the new judgment. By this course the scire facias is made to subserve a double purpose, to wit; first, that of continuing the lien of the original judgment down and connecting it with the judgment entered in each succeeding scire facias, so that the origin of the lien still continues to be the same, while the amount thereof is constantly increasing by lapse of time and the costs accruing upon the several judgments of revival; and second, that of recovering interest upon the original judgment, which can only be done in England by bringing an action of debt on it. But the plaintiff by doing so, does not gain the benefit of the lien of the original judgment in the new action brought upon it with a view to recover the interest due thereon. Where no defence is made in the scire facias, it is the business of the prothonotary, upon the judgment’s being entered to calculate the interest, and thus ascertain the amount for which the judgment ought to be entered, and to set it down upon the record thereof. And should he happen to commit an error in doing so, either by making it more or less than it ought to be, there is no doubt but it may be corrected afterwards at almost any time, before being paid. It is never too late to amend the record merely for the purpose of correcting a misprision of the clerk. This is every day’s practice and will be done after writ of error brought on account of it. Green v. Miller, 2 B. & Adolph. 781. Mansly v. Steacy, 4 Taunt. 588. In such cases where there is always something to amend by, no injury can accrue from the practice to any one; as for instance, where the clerk has entered the judgment, “ de honis propriis” instead of “ de bonis testatoris,” it would be intolerable to reverse for such mistake; the court will direct the entry in such case to be amended instead of the judgment to be reversed. Green v. Bennet, 1 T. R. 782. So, a writ of scire facias will be directed to be amended by the record and made to conform to the judgment upon which it was intended to be sued out. Brasswell v. Jeco, 9 East 316. Perkins v. Petit, 2 B. & P. 275. And indeed courts seem to have carried the practice of amending the record -still farther in order to give the plaintiff the benefit of his recovery where the record shows that by a trial upon the merits he has entitled himself to it. Accordingly, after-judgment in ejectment from Ireland affirmed, the-court amended the declaration by enlarging the term, though the-record had been remitted to Ireland. Vicars v. Heydon, (Error) Cowp. 841. We feel satisfied that the court below committed no» excess of authority in permitting the amendment to be made; on, the contrary, we think it was their duty to do what they did. It was at most but a mere correction of clerical errors. The fourth error, we think, has something in it. The verdict of the jury charged the three-fourths of 343 dollars, upon the lands holden respectively by Elizabeth Maus, Joseph Maus and Susanna Strawbridge; the first two of whom were warned as terre-tenants, but as to the third, Susanna Strawbridge, it does not appear how she came to the notice of the jury. In this there is probably some mistake, or something which ought to have been placed upon the record,, that has been omitted. The court, however, set aside the finding of the jury, not only as to Susanna Strawbridge, but likewise, as to-Joseph Maus; thus, throwing the whole three-fourths of the 343' dollars upon the land of Elizabeth alone. In England, the lands of the defendant to the judgment bound by it, which come afterwardsinto the hands of several purchasers, must upon execution sued out, be all extended and charged equally. This any one of the purchasers, has a right to claim and to insist on, upon the principle of his being, entitled to contribution. Hence, if a scire facias be sued out, upon which only one of two terre-tenants is warned by the sheri £f, he who. is warned may plead the fact of there being another tenant, whose land is also bound by the judgment, and that he has not been warned;. and thus compel the plaintiff to sue but another scire facias for the purpose of warning and making the other tenant a party to the proceeding, and the first cannot be compelled to answer further, until this shall be done. See Jefferson v. Morton, 2 Saund. Rep. 8 c, et seq. and also, note (10) by Sergeant Williams, page 9 a. I do not know, however, that the tenant warned by the first scire facias would have the same right here, though I do not mean to say, that he would not; but there is certainly a difference between the mode of taking lands in execution in England and here. There the creditor, if he resorts to the lands of his debtor, is obliged to receive payment of his judgment out of the rents, issues and profits thereof, and if they be in the hands of several purchasers they must all be extended and charged equally, as already mentioned, for the purpose of dealing equitably with the tenants, by making each contribute his proportion and no more, to the payment of the judgment, And if the creditor should take out execution against the land of one alone, the tenant of the land taken in execution, may have relief by an audita querela, and compel the creditor to go against all the lands, unless he has suffered himself to be served with a scire facias as the only terre-tenant, and omits to plead that there are others, giving their names, &c. as mentioned above, in which case if execution be awarded against his land, he can have no relief or contribution. See Sergeant Williams, note (10) 2 Saund. 9 a. But here the judgment creditor has a right to obtain payment by a sale of any distinct, separate portion of the lands, provided the rents, issues and profits of it beyond reprizes, be found insufficient to pay the debt within the space of seven years, notwithstanding the judgment be a lien upon twenty different lots or tracts of land, in the hands, severally of as many different purchasers. But still the tenant whose land is taken and sold to pay the debt, if he stands in equalijure with the remaining nineteen tenants, will be entitled to contribution; and may recover it, if in no other mode, by an action on the case against each, for his proper proportion, according to the relative value of his land. Or it may be, that if he pays off the amount of the judgment, and thus prevents a sale of his land, that the court would permit him to use the judgment for the purpose of obtaining or securing to himself contribution. It may be of the first importance, indeed, to a party in some cases, who has paid more than his proportion of the debt, to have the judgment as a security at least, by means of which he may ultimately obtain contribution. And, although the court cannot of itself directly undertake to settle and determine the sum of money, that each of the tenants shall contribute, yet it can direct an issue to be formed for the purpose of ascertaining that, and every fact by a jury, that may be material and necessary to be known and established, so that the court may be able to direct the proceeding upon the judgment in such a manner as to compel each to pay his due proportion. Under the particular circumstances of this case, however, it does not appear to be absolutely necessary, that we should decide whether one of two or more tenants of different tracts of land, bound by the same judgment, upon being warned by a scire facias sued out thereon, can compel the plaintiff to warn the others, and make them parties to the suit, before he shall proceed further in it. For he has of his own will warned them all here, and having done so, can he afterwards relinquish the proceeding against one or more without giving it up as to all of them? Can the court even grant him leave to do so? May it not prejudice the right of the party against whom the suit is continued and prosecuted as regards his obtaining contribution in case he should be compelled to pay? It certainly may, for if the suit were to be prosecuted against all, and finally it should be adjudged that the lands of all were liable, this would be one step gained by each towards maintaining his right for contribution against the others, in case he should be made to pay the debt; because, on settling the question of contribution among them, none of them would be permitted to deny the fact of his land having been equally liable with that of the others to the payment of the judgment: the judgment would be considered conclusive evidence on that point; and it also appears to me, that it would be prima facie evidence of their being bound to contribute to the payment of the debt according to the value of their respective lands. Being only prima facie evidence, however, for this purpose, it may, to be sure, be repelled by other evidence showing, that they do not stand in equalijure. For instance, one of three, being compelled to pay the whole debt, might be the heir of the defendant to the judgment, and hold his land by descent, while the other two were purchasers of their lands from the debtor for a valuable consideration; it is certain, that upon this being shown, the presumption arising from the circumstance of the execution of the judgment being awarded against the lands of the three, the first, upon paying the judgment, or upon his land alone being sold for that purpose, acquired a right to contribution, would be completely repelled: because, as against the latter two, he would have no equity at all, having paid nothing for his land. But still it cannot be denied, but the award of execution in the scire facias against the lands of all, who are warned as terre-tenants, is some evidence, say, at least, one link in the chain necessary to be made out, to support a claim for contribution by any" one of them who shall have been compelled to pay the judgment, or more of it than his due proportion. Without the aid of such evidence, then it might frequently happen, that in the course of a very short time perhaps at the very time of his being compelled to pay the money, he would be wholly unable to maintain his claim for contribution, but by means of it he is enabled to establish incontrovertibly the joint liability of their lands, which otherwise he might not be able to do. But under another view-suggested above, it may be of the utmost importance to one terre-tenant, when there are more, that all should be made parties to the scire facias, and that there should be an award of execution against the lands of all, because notwithstanding his land alone may be taken in execution, and he compelled to pay the whole of the judgment, still he may obtain the benefit of the judgment, under the direction of the court, to enable him to recover contribution from the others, who may be insolvent, and therefore without the benefit of the judgment, which is the first lien upon their lands, he would be completely remediless. Now from this view of the doctrine and principles which seem to be applicable to the case before us, it is evident, that Elizabeth Maus, the plaintiff in error, may be injured, and perhaps greatly too, by the course that has been adopted and is about to be pursued. For, although the evidence adduced on the trial, may not have been sufficient in the opinion of the court, who doubtless judged correctly as to it in this respect, to authorise a verdict against Joseph Maus or Susanna Strawbridge, if she was properly before the jury, which, however, does not appear to have been the case, yet upon another trial, Elizabeth, if she is not able to show that her lands are held free of the judgment, may prove by additional evidence, which unquestionably she has a right to do, if she can, that the lands holden by Joseph Maus and Philip Strawbridge, who seem to have been warned, but lost sight of altogether on the trial, are equally liable to pay the judgment with her own. If this were the case of a claim founded upon a tort, where the right of contribution could not exist among the defendants, setting aside the verdict as to some of the defendants only when it was against all, might possibly be right enough, but here the case is altogether different, as we have shown. The court we think ought either to have set the verdict aside as to all or else as to none; so that the footing upon which the defendants stood, both in relation to the judgment and to each other, might ultimately have been decided by a jury under the advice of the court, as long as any one of them desired it. We also think that it is not competent for the plaintiff, in the judgment, to entera nolle prosequi, as to one or more of the terre-tenants, without doing so as to all, or if he persists in doing so, it will operate in favour of all. We think, therefore, that the fourth error has been sustained, and that the judgment of the court below must be reversed on account of' it. The question attempted to be raised by the fifth error, which' is the only remaining one that has been assigned, is not presented by the record, and therefore, cannot be noticed; but I think it probable that the case of Fetterman and Murphy, in 4 Watts, is conclusive of it. Judgment reversed, and a venire de novo awarded.

OPINION Justice BAER. We granted allocatur in this case to decide “whether and when a reviewing court considering a challenge to a pretrial ruling, whether in a post-verdict or appellate context, may look beyond the record of evidence presented at the suppression hearing.” In the Interest of: L.J., 606 Pa. 46, 994 A.2d 1080 (2010). The Superior Court relied on a footnote from this Court’s decision in Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983), for the proposition that “it is appropriate to consider all of the testimony, not just the testimony presented at the suppression hearing, in determining whether evidence was properly admitted.” Id. at 317-318 n. 5 (emphasis in Chacko). The Superior Court, reasoning that it was bound by Chacko, considered evidence adduced for the first time at trial when deciding whether the police properly seized contraband from Appellant, L.J. Specifically, the court affirmed the trial court’s denial of suppression because trial testimony established that L.J. voluntarily consented to the search at issue. For the reasons set forth herein, we find the Superior Court’s reliance on Chacho to be understandable but ultimately misplaced, vacate the disposition order, and remand this case to the juvenile court for a new suppression hearing in accord with this opinion. I. The facts of the case are relatively straightforward. The Commonwealth charged Appellant, a minor, with the delin quent offenses of possession of a controlled substance and possession with intent to deliver. Appellant filed a motion to suppress. At the suppression hearing, Officer William Hunter testified that at 7:00 p.m. on September 18, 2007, he was conducting a narcotics surveillance of Chris Glover. Glover engaged in a hand-to-hand transaction with one male who left the scene. Alex Turner and Appellant then approached Glover. All three engaged in conversation. Turner gave money to Glover, who then retrieved items from a baggie and handed them to Turner. Turner and Appellant then left the area. Officer Hunter then radioed for backup officers A.C. Frames and Anthony Jackson to stop Turner. Officer Hunter learned that the other officers recovered from Appellant’s purse a large ziplock baggie containing a large white chunky substance, which was later determined to contain 29 grams of crack cocaine. After a lengthy conversation among counsel and the court, it became clear that the officer who actually seized the items from Appellant and arrested her was not present for the suppression hearing. Officer Hunter did not witness the seizure of the contraband or Appellant’s arrest. Oral argument on the suppression motion was somewhat haphazard, with two portions of the argument being conducted off the record. Argument initially centered on the extent to which an arresting officer may rely for probable cause on the observations of an officer conducting surveillance. Appellant’s counsel also argued that the officers needed a warrant to search Appellant’s purse, and that Officer Hunter “does not know exactly where the items were recovered.” Notes of Testimony (N.T.), 12/24/07, at 25-26. Appellant’s counsel generally argued that the search of Appellant’s purse was conducted without a warrant, probable cause, or reasonable suspicion. After additional off-the-record argument, the court denied the motion, reasoning that Officer Hunter’s observations of Appellant, Turner, and Glover provided probable cause to search Appellant’s purse: So we’re clear on the record, I’m denying this motion because what the police officer [Hunter] saw at the time of the transaction would certainly suggest to him that both of the people who had a conversation with the buyer or seller were involved in the transaction. And as I understand it, they both had a conversation and the drugs that were passed to Turner by Glover could have been and reasonably would have been transferred to [Appellant], since they approached and conversated [sic] together. And for that reason your motion is denied. Id. at 28-29. The case proceeded immediately to an adjudicatory hearing on the charges, with the suppression testimony incorporated into the hearing. The first witness to testify was Officer Jackson. He testified that he was the backup officer to Officer Hunter. Using a radio, Officer Hunter instructed Officer Jackson and his partner, Officer Frames, to stop a male (Turner) and a female (Appellant) in the area of 1900 Berkshire. According to Officer Jackson, he: stopped this female and asked her if she had any weapons on her. She was clutching a purse[.] I asked if she had weapons in her purse. She stated, no. I asked her if she mind [sic] if I took a look. She opened up her purse and it immediately appeared to me was a clear plastic baggie containing a large chunk of crack cocaine. Id. at 30-31. Appellant attempted to cross-examine Officer Jackson by asking if he obtained her written consent to search the purse. The Commonwealth objected on relevance grounds, arguing, “we’re at trial, your honor. The [suppression] motion is completed.” Id. at 32-33. The trial court sustained the objection. Appellant did cross-examine Officer Hunter concerning the fact that Appellant’s consent to the search of the purse was not in “the police paperwork.” Id. at 33. Shortly thereafter, the court adjudicated Appellant delinquent of possession with intent to deliver, and not guilty of simple possession. Appellant was ordered to serve a term of probation. Appellant filed a concise statement of errors complained of on appeal, arguing in part that the search and seizure of her purse were illegal, and therefore the evidence contained therein should have been suppressed, because the police acted without a warrant and without probable cause or reasonable suspicion. The juvenile court, in its Pa.R.A.P. 1925(a) opinion, reiterated its initial justification for denying the suppression motion, quoted above. The court then opined for the first time that, in light of Officer Jackson’s trial testimony that Appellant gave consent to a search of her purse, “the arguments asserting the absence of probable cause or reasonable suspicion become moot.” Juv. Ct. Op. at 3. On appeal to the Superior Court, Appellant contended that the juvenile court erred when it considered Officer Jackson’s trial testimony in determining the validity of the search and seizure for purposes of Appellant’s pretrial suppression motion. The Superior Court, initially found Appellant’s argument intuitively logical. Certainly, if the Commonwealth fails to establish the constitutionality of certain police action during a suppression hearing, then the proper course of action for the court hearing the motion is to grant the motion and suppress the unconstitutionally seized evidence. That a court’s error in so denying a motion could be cured by evidence introduced at trial, which establishes the constitutionality of the police action, raises questions of whether the defendant has been deprived of procedural due process. Super. Ct. Mem. Op. at 4. The panel, however, described its scope of review as “well-settled” as defined by Chacho and its mandate “to consider all of the testimony, not just the testimony presented at the suppression hearing.” Id. at 5 (quoting Chacko, 459 A.2d at 317-18 n. 5). The court nevertheless noted that two panel decisions had recently opined that they were “bound by the record as created at the suppression hearing. Accordingly, we cannot rely on the facts that were not developed until trial.” Commonwealth v. Ventura, 975 A.2d 1128, 1136 (Pa.Super.2009) (quoting Commonwealth v. Days, 718 A.2d 797, 802 n. 8 (Pa.Super.1998)). Recognizing this conflict, the Superior Court in the instant appeal rejected the Ventura /Days language because, inter alia, neither Ventura nor Days discussed Chacko and, “since Chacho was decided by our Supreme Court and Days was decided by this Court, we are obviously bound to follow Chacko.” Super. Ct. Mem. Op. at 8. Based upon Officer Jackson’s trial testimony concerning consent, the panel affirmed the disposition order, without addressing whether the search and seizure would have been justified based only on the suppression record. II. On appeal to this Court, Appellant argues that the Superior Court need not have followed the Chacho footnote, despite the panel’s insistence that Chacho controlled the case, because the Chacho footnote constituted non-precedential dicta. Appellant also contends that, aside from Chacho, this Court has repeatedly held that courts are limited to the record of the suppression hearing, unless new and previously unavailable evidence arises at trial. Appellant argues that a general rule limiting suppression issues to the suppression record is consistent with the rules of juvenile and criminal procedure, and necessary to the orderly administration of justice. Appellant urges that it was particularly unfair for reviewing courts to rely on Officer Jackson’s trial testimony in this case, where the trial court precluded Appellant from cross-examining Officer Jackson concerning Appellant’s alleged consent to search her purse, on the ground that the suppression phase of the case was over. Finally, Appellant maintains that if the juvenile court is to consider post-suppression evidence to support the suppression finding, then fundamental fairness requires that the court do so by formally opening the suppression record and allowing a full hearing thereon. Otherwise, Appellant asserts, a defendant could be “blindsided” when he learns, for the first time after the notice of appeal has been filed, that certain trial evidence was actually used to justify the suppres sion decision. Indeed, Appellant argues that if trial evidence may be used to support a suppression ruling, defendants may feel compelled to testify at trial on the suppression issue, in violation of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Commonwealth responds that the Chacho footnote was not dicta, and that this Court should reaffirm the Chacho rule. The Commonwealth contends that the United States Supreme Court, along -with numerous state and federal appellate courts, adhere to the Chacho rule. The Commonwealth notes that in Commonwealth v. Gordon, 546 Pa. 65, 683 A.2d 253 (1996), we justified a ruling that a defendant did not have a reasonable expectation of privacy in an abandoned home based, in part, on the defendant’s trial testimony. Next, the Commonwealth argues that the Chacho rule “conforms to the well established principle that a case can be affirmed for any reason appearing on the record.” Commonwealth’s Brief at 13. The Commonwealth further avers that the purpose of suppression is to deter police misconduct and to protect a defendant’s privacy-interests; if the record as a whole reflects that the police acted lawfully, then suppression would be unjustified. The Commonwealth urges that “practicalities” militate in favor of the Chacko rule: suppression motions are often vague, so suppression hearings do not always develop all of the available evidence; moreover, police officers are occasionally unavailable for suppression hearings, so those officers should be able to supplement the record with trial evidence tending to show that an item at issue was properly seized. The Commonwealth contends that the rules of criminal and juvenile procedure do not preclude the use of the Chacho rule, because those rules do not speak to an appellate court’s scope of review of a suppression ruling. Finally, the Commonwealth argues that Appellant’s claim of being blindsided by the use of trial evidence in support of the suppression ruling is “absurd,” because “the world has been on notice” since at least 1983 that the Chacko rule applies in Pennsylvania. Commonwealth’s Brief at 20. The Commonwealth also dismisses Appellant’s claim that she was precluded from cross-examining Officer Jackson on the consent issue. III. (A) In this case, we must address the proper scope of review of a suppression court’s decision. Often, we broadly state that our “task,” or our “review,” or our “standard and scope” of review, is to determine whether the record supports the suppression court’s factual findings, and whether the suppression court’s findings are free from legal error. See, e.g., Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275, 1280 (2007) (“our review”); Commonwealth v. Perez, 577 Pa. 360, 845 A.2d 779, 788 (2004) (“standard of review”) (citing Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 868 (2000) (our “task”)); Commonwealth v. Hughes, 575 Pa. 447, 836 A.2d 893, 898 (2003) (“standard and scope” of review). This phrasing, while convenient, tends to blend the concepts of scope and standard of review. Scope of review “refers to the confínes within which an appellate court must conduct its examination. In other words, it refers to the matters (or “what’) the appellate court is allowed to examine.” Commonwealth v. Selenski, 606 Pa. 51, 994 A.2d 1083, 1089 n. 6 (2010) (citation and ellipses omitted). In contrast, standard of review is the “degree of deference given by the reviewing court to the decision under review.” Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1235 (2007) (citation omitted). Scope of review (or the “what”) may be divided into two components: the subject matter of the review, and the extent of the record that the appellate court consults when conducting that review. As for the subject matter, our scope of review is limited to the factual findings and legal conclusions of the suppression court. Perez, 845 A.2d at 788 (citation omitted). As for the record, we are limited to considering only the evidence of the prevailing party, and so much of the evidence of the non-prevailing party as remains uncontradicted when read in the context of the record as a whole. Id.; see also Hughes, 836 A.2d at 898. The instant case concerns a less-considered aspect of the record component of our scope of review: namely, whether the appellate court may refer to the trial record as well as the suppression record when reviewing the suppression court’s decision. In Perez, 845 A.2d at 788 n. 8, we expressly declined to consider this very question. (B) Thus, we return to Chacko. In that case, Chacko made three inculpatory statements to prison guards regarding a stabbing in the prison. Chacko was not given Miranda warnings before the first statement. Immediately after the first, un-warned statement, the Major of the Guard of the prison provided Chacko with Miranda warnings and elicited a second statement. The next day, the prison officials again provided Miranda warnings and took a third statement. We held that the first statement should have been suppressed, because it was given during a custodial interrogation without Miranda warnings. We further held that the error was harmless in light of the fact that Chacko gave two other inculpatory statements after first being properly warned. As to these latter two statements, Chacko claimed that his borderline IQ and the surrounding circumstances made his Miranda waiver unknowing and involuntary. We disagreed. In doing so, we looked to the circumstances surrounding the first warned statement. We noted that both before and after being provided with Miranda warnings, Chacko was alert and focused, answering questions promptly and without confusion or coercion. Chacko, 459 A.2d at 318. In the course of this discussion, we noted in a footnote that Chacko testified both at the suppression hearing and at trial. At the suppression hearing, Chacko testified that two guards escorted him to the Major’s office. At trial, however, Chacko insisted that his suppression testimony was erroneous, and that he actually went to the office unescorted. We credited Chacko’s trial testimony, which tended to militate in favor of a finding that the Miranda waiver was free and voluntary. We then wrote: “While this factor is not crucial to our determination, we note parenthetically that it is appropriate to consider all of the testimony, not just the testimony presented at the suppression hearing, in determining whether evidence was properly admitted.” Id. at 317-18 n. 5 (emphasis in original). -1- We must now determine whether this statement is binding precedent under the doctrine of stare decisis. “The doctrine only applies to issues actually raised, argued and adjudicated, and only where the decision was necessary to the determination of the case. The doctrine is limited to actual determinations in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta.” Commonwealth v. Perry, 568 Pa. 499, 798 A.2d 697, 707 (2002) (Castille, J., now-C.J., concurring; citations omitted). We hold that the doctrine of stare decisis does not apply to the Chacko footnote, because the passage was not necessary to the outcome of the case. First, we explicitly noted in the footnote itself that the question of whether Chacko was escorted by guards was “not crucial to our determination.” Chacko, 459 A.2d at 317-318 n. 5. Next, it is clear that the majority in Chacko simply volunteered the discussion; the issue was not litigated by the parties. Thus, the statement was non-binding dicta, and stare decisis does not apply. -2- Next, we must determine whether the Chacko rule is reflected in binding precedent from this Court. In the Chacko footnote, this Court cited, with a “cf.” signal but without elaboration, this Court’s earlier decision in Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). In DeMichel, the Commonwealth prevailed at a suppression motion, but “new and different” evidence came to light at trial showing that the police had violated the knock and announce rule. Id. at 161. The trial court granted a motion in arrest of judgment on the basis of this new evidence. This Court agreed, and rejected the Superior Court’s holding that the trial court may never overrule the findings of the suppression court. We wrote that the interests of justice demand suppression of previously-admitted evidence if the defendant proves at trial, through new and different material, that the evidence should be suppressed. Id. at 162. DeMichel, while instructive, does not support a broad-based adoption of the Chacho rule that all evidence at trial may be considered for purposes of any pretrial ruling. While DeMichel accepted the possibility that a defendant’s introduction at trial of new and different evidence may lead, in the interests of manifest justice, to the court reversing a previous erroneous denial of suppression, see also Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74, 77-78 (1986), DeMichel does not hold that reviewing courts should look to both suppression evidence and trial evidence as a matter of course. Likewise, Gordon is not controlling. In that case, police were investigating a purse-snatching incident. An elderly man told the investigating officer that a person matching the perpetrator’s description lived in an abandoned house nearby. The police entered the dilapidated structure without a warrant, and found the defendant with the purse. The defendant moved to suppress the evidence. The suppression court denied the motion, but the Superior Court reversed, holding that the defendant had a reasonable expectation of privacy in the structure. On appeal, this Court reversed, reasoning that, based on the investigating officer’s testimony at the suppression hearing, the defendant did not have an objectively reasonable expectation of privacy in the structure. The defendant argued, “in the alternative,” that this Court should recognize a reasonable expectation of privacy “to respect the dignity of the homeless.” Gordon, 683 A.2d at 258. We found this argument “disingenuous” in light of the defendant’s own testimony at trial and at sentencing that he was not in fact homeless: he had a home and a stable job. Id. at 258-59. We noted, therefore, that “Gordon’s advocacy on behalf of the homeless rings hollow.” Id. at 259. Such a statement does not stand for the broad proposition that courts should typically look beyond suppression testimony to determine if the suppression court’s ruling was proper. -3- While the broad “rule” of Chacho is not reflected in this Court’s jurisprudence, of course, the pronouncement would be binding on this Court if it represents the view of the United States Supreme Court on a federal constitutional issue. Council 13 v. Commonwealth, 604 Pa. 352, 986 A.2d 63, 77 (2009) (United States Supreme Court is the ultimate arbiter of issues arising under federal law or the United States Constitution). In the Chacho footnote, we string-cited a number of decisions by non-binding tribunals, but we cited only one United States Supreme Court case: Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In that case, undercover federal prohibition agents attempted to purchase bootleg liquor from defendants Carroll and Kiro. The defendants promised to make the sale, but it did not take place. Some months later, on routine patrol, those agents saw Carroll and Kiro travelling in their vehicle on a well-known liquor trafficking route between Detroit and Grand Rapids, Michigan. The agents stopped the defendants on suspicion of trafficking liquor in violation of the National Prohibition Act. The agents discovered sixty-eight bottles of liquor in the vehicle, seized the contraband, and arrested the defendants. The defendants filed a motion to suppress the evidence and return it to Carroll, who owned the vehicle, on the ground that the agents illegally searched the vehicle without a warrant. The High Court ultimately determined that the agents could stop the vehicle and search it without a warrant so long as they had probable cause to believe that the vehicle contained illegal contraband. The Court concluded that probable cause did exist under the circumstances. The Court then wrote: Counsel finally argue that the defendants should be permitted to escape the effect of the conviction because the court refused on motion to deliver them the liquor when, as they say, the evidence adduced on the motion was much less than that shown on the trial, and did not show probable cause. The record does not make it clear what evidence was produced in support of or against the motion. But, apart from this, we think the point is without substance here. If the evidence given on the trial was sufficient, as we think it was, to sustain the introduction of the liquor as evidence, it is immaterial that there was an inadequacy of evidence when application was made for its return. A conviction on adequate and admissible evidence should not be set aside on such a ground. The whole matter was gone into at the trial, so no right of the defendants was infringed. Id. at 162. Like the comments in Chacho and Gordon, we do not read this elucidation by the High Court in Carroll as announcing a general rule that courts should look to trial testimony as well as suppression testimony when reviewing suppression decisions. At most, the Court simply noted that looking to the trial testimony for forfeiture purposes was harmless in the context of that case, which arose in the unique context of the National Prohibition Act. Indeed, the Court opined that the admissibility of the evidence (ie., the liquor) to prove the ultimate criminal case at trial both sufficient in and of itself to warrant forfeiture of the liquor upon a conviction. Moreover, the Carroll Court did not examine in detail any particular claims of prejudice arising from the procedure, such as the claims being presented in the instant case. As noted above, the Court was apparently unaware of the exact suppression record, and therefore looked to trial evidence to determine if forfeiture was proper. Additionally, Carroll announced its rule before the advent of codified procedural rules, such as the federal and the Pennsylvania rules of criminal procedure. Therefore, we find it appropriate to further examine whether the Pennsylvania rules of criminal proce dure, rules of juvenile court procedure, and case law interpreting those rules, speak to the matter at hand. (C) In both the criminal and juvenile context, this Court has promulgated rules of procedure governing the suppression of evidence. Generally, motions to suppress must be both filed and decided before trial. See Pa.R.Crim.P. 578-580; see also Pa.R.J.C.P. 346-348. In the criminal context, the hearing must take place outside the presence of the jury, see Pa. R.Crim.P. 581, and a record must be made of the suppression evidence. Id. 581(G); see also Pa.R.J.C.P. 350 (official comment) (citing Pa.R.J.C.P. 127). At the end of the hearing, “the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights ... and shall make an order granting or denying the relief sought.” Pa.R.Crim.P. 581(1); see also Pa.R.J.C.P. 350(C). If the court determines that the evidence shall not be suppressed, that decision is generally “final, conclusive, and binding at trial, except upon a showing of evidence which was theretofore unavailable[.]” Pa.R.Crim.P. 581(J); see also Pa.R.J.C.P. 350(D). This procedure is fair, orderly, and efficient. It provides “one single procedure for the suppression of evidence^]” Pa. R.Crim.P. 581 (official comment); see also Pa.R.J.C.P. 350 (official comment). It emphasizes the importance of having a separate suppression court record for review, in light of the fact that a suppression court’s factual findings, credibility determinations, and legal conclusions may be different in kind and scope from those rendered by a finder of fact at trial. It requires the suppression court to set forth its findings of fact and conclusions of law at the end of the hearing, so that the litigants and the appellate courts are aware of the basis for the suppression court’s ruling. Most importantly, the suppression court’s decision is “final, conclusive, and binding at trial[.]” Pa.R.Crim.P. 581(J); see also Pa.R.J.C.P. 350(D). This language strongly suggests that the record of the suppression hearing is intended to be the complete record for suppression issues, and those issues are to be finally determined before trial, not during trial or after trial. Ordinarily, suppression proceedings and trial proceedings do not overlap or interweave. Rule 581(J), and its juvenile court analogue, Pa.R.J.C.P. 350(D), provide a limited exception, however, to the procedural mandate that the suppression court’s denial of suppression is final and binding at the conclusion of the suppression hearing. This exception permits the admission of only previously unavailable evidence, at trial, pertinent to the issue presented for suppression. We have interpreted this rule as allowing a defendant to challenge a prior adverse suppression ruling with new evidence at trial. Monarch, 507 A.2d at 77-78; DeMichel, 277 A.2d at 162. Accordingly, in light of this very limited exception allowing for the admission of evidence at trial, which was previously unavailable at suppression, we find the Commonwealth’s arguments in favor of the absoluteness of the Chacho rule, allowing for consideration of all testimony, to be unpersuasive. (D) The conclusion that only previously unavailable evidence is admissible during trial on an already closed suppression issue then returns us to the question of what the proper scope of “the record” must be in review of suppression matters. It is axiomatic that the nature of the record below controls the appellate court’s scope of review. See In re: One Hundred or More Qualified Electors, 546 Pa. 126, 683 A.2d 283, 287 (1996). For example, when determining whether the evidence is sufficient to support a conviction, we look to the evidence admitted at trial. See e.g. Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 306 (2011). We do not look to evidence “of record” at other stages of the proceedings, such as sentencing. Similarly, in the scenario presented sub judice, it is inappropriate to consider trial evidence as a matter of course, because it is simply not part of the suppression record, absent a finding that such evidence was unavailable during the suppression hearing. We further reject the Commonwealth’s contention that the overarching purposes of the exclusionary rule, i.e., to deter police misconduct and to protect privacy, would be undermined, and defendants would receive an unjustified windfall, if courts are forced to overlook proof that the evidence at issue was lawfully seized. Commonwealth’s Brief at 13-14. It is the Commonwealth’s burden to establish that evidence was properly seized, see Pa.R.Crim.P. 581 (official comment) (“In all cases, the burden of production is now upon the Commonwealth. The burden of persuasion is there as well.”); see also Pa.R.J.C.P. 350(D) (official comment); and, as our rules make clear, the time for the Commonwealth to carry that burden is at the suppression hearing. It is no great chore to require the Commonwealth to present its evidence at that time, just as we require the Commonwealth to present its evidence of a defendant’s guilt at trial, and not thereafter. We also note that in the suppression context, appellate courts do not simply comb through the record to find evidence favorable to a particular ruling. Rather, appellate courts look to the specific findings of fact made by the suppression court. Those findings are dependent on the suppression court’s credibility determinations. A suppression court may find some evidence favorable to the Commonwealth to be credible, and other evidence favorable to the Commonwealth to be incredible. Only after the court assesses and weighs all of the facts may the court issue conclusions of law specifically relating to those findings of fact. There is no mechanism for that special evaluative process to take place during a trial, especially when the case is being tried to a jury as the finder of fact. The Commonwealth notes that appellate courts are not left adrift to comb the record on their own; for example, in the instant case, the juvenile court specifically indicated in its Rule 1925(a) opinion that it found Officer Jackson’s trial testimony credible for suppression purposes. Thus, the Commonwealth argues, appellate courts are simply performing their traditional review when they determine whether these additional facts are supported in the record. While there is some facial appeal to this argument, it is ultimately untenable. Like the Superior Court, we recognize due process concerns with a rule that would permit a trial court to issue belated supplemental findings of fact and conclusions of law, such as occurred in the instant case. See LaFave, Wayne R., 6 Search and Seizure § 11.7(d) (4th ed. 2004) (“Absent notice to the defense that the legality of the search and seizure is somehow an “open” question throughout the trial, the defendant may well not challenge certain trial testimony which bolsters the pretrial suppression ruling but is not particularly damaging on the issue of guilt or innocence.”). Those concerns are particularly serious in the instant case, where a Commonwealth witness testified for the first time at trial that Appellant consented to the search of her purse. While Appellant managed a small degree of cross-examination on this issue, the trial court largely cut off this line of inquiry because the suppression phase of the case was over. See N.T., 12/24/07, at 31-38. Moreover, the witness who would have been in the best position to rebut the Commonwealth’s new evidence on the issue of consent was Appellant herself, but testifying at trial would have required her to give up her Fifth Amendment right against self-incrimination. As Appellant notes, she is protected from having to make this choice. See Simmons, supra note 4. Nevertheless, the Commonwealth asserts that there is no due process concern here because defendants have been on notice since the Chacho decision in 1983 that the appellate courts may consider trial testimony when determining the validity of a suppression court’s ruling. Despite what we today hold was dicta in Chacho, we believe that our rules of procedure give defendants ample reasonable basis for concluding that once the suppression hearing is closed, the court’s suppression ruling (and, necessarily, the court’s assessment of the facts undergirding that ruling) is final, conclusive, and binding. Pa.R.Crim.P. 581(J); Pa.R.J.C.P. 350(D). That ruling, a fortiori, is based not on trial testimony, but rather on findings of fact and conclusions of law as expressed at the time of the suppression hearing. In short, defendants should not be forced to speculate that any evidence being introduced at trial may also impact the suppression landscape. In a related vein, defendants simply should not be forced to guess, or to learn for the first time in a post-sentence opinion, what evidence supported the trial court’s suppression ruling. The Commonwealth’s final argument that “the practicalities of pretrial suppression proceedings support the rule in Chacho and Gordon,” Commonwealth’s Brief at 14, likewise has no basis in the procedural framework. The Common wealth notes that suppression motions are often vague and boilerplate, and police witnesses may be unavailable to testify because of conflicting obligations. However, regardless of whether the defendant’s suppression motion is detailed or boilerplate, the Commonwealth carries the burden at suppression and satisfies that burden if it proves to the satisfaction of the suppression court that the evidence was properly seized. See Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968); see also Pa.R.Crim.P. 581(J) (official comment). Again, it is no great chore to ask the Commonwealth to carry that burden of proof in a single proceeding with whatever testimony is necessary and available. If the Commonwealth believes that it cannot carry its burden of proof at a particular time, it is free to ask for a continuance. See Pa. R.Crim.P. 580, 581(E). IV. Deciding, however, that our procedural rules do not support a reviewing court looking beyond the evidentiary record presented at the pre-trial hearing in examining a denial of suppression does not conclude our appellate duty. Despite our rejection of the Chaeko footnote (which cited to Carroll) as binding precedent, we cannot ignore that Chaeko was a pronouncement of this Court upon which the Superior Court, trial courts, and parties have relied upon for almost thirty years. See, e.g., Commonwealth v. Charleston, 16 A.3d 505, 516-17 (Pa.Super.2011) (quoting the Chacko footnote); In the Interest of D.W., 427 Pa.Super. 629, 629 A.2d 1387, 1389 n. 2 (1993); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376, 1384 n. 19 (1984) (“Our courts have consistently adhered to the principal that an appellate court may consider all testimony on record in determining whether certain evidence was admissible at trial, and not solely the testimony elicited during the suppression hearing.”). Once, of course, the viability of the Chacko footnote is wiped away, these Superior Court cases are similarly nullified. We therefore find it prudent to determine whether this decision should be afforded retrospective or prospective application. “When this Court issues a ruling that overrules prior law, expresses a fundamental break from precedent, upon which litigants may have relied, or decides an issue of first impression not clearly foreshadowed by precedent, this Court announces a new rule of law.” Fiore v. White, 562 Pa. 634, 757 A.2d 842, 847 (2000). One of the hallmarks of whether this Court has issued a new rule of law is if the decision overrules, modifies, or limits any previous opinions of this Court. Kendrick v. Disk Attorney of Phila. County, 591 Pa. 157, 916 A.2d 529, 538 (2007). “While retroactive application of a new rule of law is a matter of judicial discretion usually exercised on a case-by-case basis, the general rule is that the decision announcing a new rule of law is applied retroactively so that a party whose case is pending on direct appeal is entitled to the benefit of the changes in the law.” Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 610 Pa. 371, 20 A.3d 468, 479 (2011) (quoting Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027, 1030 n. 5 (1998)). In considering whether to deviate from this general rule, we consider: (1) the purpose of the new rule; (2) the extent of reliance by courts and litigants upon the old rule, and (3) the effect the new rule of law will have on the fair administration of justice. Kendrick, 916 A.2d at 536. In furtherance of this first prong, we may also consider whether the issue involved concerns substantive or procedural law. Freed v. Geisinger Med. Ctr., 601 Pa. 233, 971 A.2d 1202, 1213 (2009). We possess greater discretion to impose a decision prospectively only “if the [new rule of law] is of the court’s own making, involves a procedural matter, and involves common law development.” Id. (quoting Kendrick, 916 A.2d at 539). Under the guidelines of both Fiore and Kendrick, we initially hold that today’s decision does announce a new rule of law, such that an examination of retroactive or prospective application is necessary. First, litigants and courts have clearly relied upon the Chacho footnote, as reflected in the cases such as Charleston, cited above. Second, while this decision is not a “fundamental break from precedent” in that the Chacho footnote was never precedential in the first instance, this opinion certainly “modifies or limits” that footnote and the applicability of both Chacho and Carroll in Pennsylvania. Accordingly, this opinion constitutes a new rule of law. We thus turn to examining whether this decision should be afforded the general rule of retroactive application. First, the rule today is generally procedural, as it merely reinforces the procedure required for the review of the denial of a suppression motion and the re-opening of the suppression hearing to consider previously unavailable evidence. Moreover, it merely instructs reviewing courts moving forward that they are no longer to apply the procedure and scope of review seemingly authorized by the Chacko footnote. Second, and as has been repeatedly stated supra, the reliance upon the Chacko footnote has been extensive. Finally, given that this opinion serves to right an inaccurate interpretation of prior law, we find that this decision significantly alters the appellate process of this and other cases substantially. That said, we note that here, the Commonwealth never asked the trial court to reconsider its earlier suppression ruling in light of Officer Jackson’s trial evidence. Concomitantly, Appellant’s counsel attempted, albeit unsuccessfully, to cross-examine Officer Jackson at trial to scrutinize the propriety of the alleged consent given by Appellant to search her handbag. Moreover, the juvenile court never declared Officer Jackson “unavailable” for purposes of the suppression hearing, yet permitted him to testify at trial, unfettered by cross-examination, concerning Appellant’s alleged consent. Indeed, the viability of any consent could be crucial for suppression purposes, as the opinions of the courts below relied heavily (if not exclusively) on Officer Jackson’s testimony concerning Appellant’s consent to uphold the suppression denial (as opposed to Officer Hunter’s suppression testimony). Given all of this, the best course in this case, to ensure the fair administration of justice for all parties and to cases already commenced where the litigants have potentially relied upon the Chacko footnote is to give this decision prospective effect. In accord therewith, and because no reviewing court has ruled upon the correctness of the suppression denial based solely upon the suppression hearing testimony, we vacate the disposition order and remand this matter to the juvenile court for a new suppression hearing. Such will permit the Commonwealth to utilize the testimony of both Officers Hunter and Jackson, and simultaneously afford Appellant a complete ability to scrutinize the evidence of probable cause or consent. Any appeals by these parties thereafter, as well as all litigation commenced Commonwealth-wide after the filing of this decision, will be considered in accord with this opinion. Order vacated. Case remanded. Jurisdiction relinquished. Chief Justice CASTILLE and Justice TODD join the opinion. Justice SAYLOR joins Parts I, II, and III of the majority opinion and concurs in the result with respect to Part IV. Justice EAKIN files a concurring and dissenting opinion. Justice McCAFFERY files a dissenting opinion in which Justice STEVENS joins. . See 35 P.S. § 780-113(a)(16), (a)(30). . It is unclear why Officer Jackson did not testify mere minutes earlier, at the suppression hearing. . We note that a number of other Superior Court panels have followed the Chacko rule, including, recently, Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super.2011). . In Simmons, 390 U.S. at 394, 88 S.Ct. 967, the United States Supreme Court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Here, Appellant did not testify at the suppression hearing, so it is difficult to see how Simmons directly applies to her situation. Appellant’s broader point, however, is that Simmons recognized a defendant's right to testify in support of a suppression motion without giving up the Fifth Amendment right against self-incrimination. Our own Rules of Criminal Procedure make the point explicitly. See Pa.R.Crim.P. 581(H) ("the defendant may testify at [a suppression] hearing, and if the defendant does testify, the defendant does not thereby waive the right to remain silent at trial."). According to Appellant, defendants run the risk of being forced to give up that Fifth Amendment right if they feel compelled to testify at trial in order to counter new Commonwealth evidence that may be ultimately admitted for suppression purposes. As in this case, the only effective practical way for Appellant to confront Officer Jackson’s claim of consent would have been by testifying at trial, which she is constitutionally protected from having to do. Appellant proposes that if new trial evidence is to be introduced for suppression purposes, the court should pause the trial and formally re-open the suppression hearing, so that the defendant may testify freely there, without giving up her right against self-incrimination. Appellant’s Brief at 19. . We are compelled to note that while the Commonwealth avers that the United States Supreme Court has permitted the consideration of trial evidence by appellate courts that are reviewing suppression denials, the Commonwealth cites to no case from the High Court for this proposition. . When we state that part of our "task” is to determine whether the record supports the suppression court’s factual findings, this is another way of expressing that our standard of review is highly deferential with respect to the suppression court’s factual findings and credibility determinations. In other words, if the record supports the suppression court's findings, we may not substitute our own findings. Hughes, 836 A.2d at 898 ("[w]here the record supports findings of the suppression court, we are bound by those facts.”) (citation omitted). In stark contrast, our standard of review of the suppression court's legal conclusions is de novo: appellate courts give no deference to the suppression court’s legal conclusions. Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476 (2010). . We may have credited Chacko's trial testimony simply because Chacko insisted at trial that his suppression testimony was erroneous on this point. It is obvious that the result would have been the same if we had credited Chacko’s suppression testimony that he was escorted to the meeting by two guards, because the totality of the circumstances showed that Chacko’s Miranda waiver was free and voluntary. . In a “cf.” citation, the "cited authority supports a proposition different from the main proposition but sufficiently analogous to lend support.” The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 17th ed. 2000). . This Court decided DeMichel with five Justices. One Justice concurred in the result, with the other four evenly split on whether the police actually violated the knock and announce rule. . The High Court noted that the principal purpose of the Prohibition Act was to seize contraband and the vehicles used to transport it. The Act also provided for criminal penalties: a $500 fine for a first offense, a $1000 fine or ninety days in prison for a second offense, and a fine of $500 or more and two years in prison for a third offense. . Carroll was announced in 1925; the Federal Rules of Criminal Procedure were enacted in 1938; the Pennsylvania Rules of Criminal Procedure were enacted effective January 1, 1965; and the Pennsylvania Rules of Juvenile Court Procedure (Delinquency) were enacted effective October 1, 2005. The juvenile court procedure rules for suppression of evidence were modeled after, and often directly track, the Pennsylvania rules of criminal procedure regarding suppression. . We recognize the line of cases string-cited by Mr. Justice McCaffery in dissent, all of which have cited to Carroll for the proposition that trial evidence may be considered for evaluation of a suppression ruling. As the Dissent’s own block quotes and citations note, however, our sister courts are not unanimous in so holding. See, e.g., Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25, 29-30 (2001) (”[I]n reviewing a judge’s ruling on a motion to suppress, an appellate court may not rely on the facts as developed at trial even where the testimony [from the suppression hearing] differed materially from that given at trial.”). Further, in light of our procedural rules framework and the distinctions evident in Carroll, we find a thorough examination of all relevant factors appropriate rather than following the nonbinding decisions of other courts. . This Court has recognized the expectation interest that parties have in such an orderly disposition of suppression issues before trial issues. Commonwealth v. Heacock, 467 Pa. 214, 355 A.2d 828, 830 (1976). . It is less clear whether Pa.R.Crim.P. 581(J) and Pa.R.J.C.P. 350(D) may be read broadly enough to permit the Commonwealth to bolster or supplement its suppression-hearing evidence with previously unavailable evidence at trial tending to show that the evidence was properly seized, and thus admissible. We note, however, that the rule is phrased neutrally; it does not draw a distinction between a defendant’s challenge and the Commonwealth's supplementation. Assuming arguendo that the rule that would permit such supplementation, the Commonwealth could do so only with "evidence which was theretofore unavailable.” The Chacho rule, in contrast, would permit routine intermingling of trial evidence with suppression evidence, without a showing that the evidence was previously unavailable. . See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1159 n. 5 (2000). . Indeed, the wise course of conduct for all parties involved in suppression hearings is to have all potentially necessary evidence and testimony available at the time of the hearing. Certainly, as exhibited herein, this is what the Rules of Criminal and Juvenile Procedure contemplate. . Moreover, going forward, if a party (or, indeed, both parties by consent) wishes to take the unusual step of augmenting the suppression record with trial evidence, it should do so explicitly, on the basis that the new trial evidence was previously unavailable. Such an explicit motion has several salutary purposes. First, it gives the trial court the opportunity to re-open the suppression hearing to consider the new evidence outside the presence of the jury. See Pa.R.Crim.P. 581(F) (suppression hearing "shall be held outside the presence of the jury.”) In this re-opened hearing, the trial court would have the opportunity to determine whether the trial evidence was truly unavailable, an issue which may well be ancillary to the issues raised in the trial on the merits. Second, it gives the defendant a meaningful opportunity to formulate and present a defense to the new evidence, whether by cross-examination or by direct testimony, without concern that such a defense would waive the defendant’s Fifth Amendment right against self-incrimination. See supra note 4; see also Pa.R.Crim.P. 581(H) ("the defendant may testify at [a suppression] hearing, and if the defendant does testify, the defendant does not thereby waive the right to remain silent at trial.”). Third, it gives the trial court an opportunity to announce new specific findings of fact and conclusions of law as required by Pa.R.Crim.P. 581(1), all of which are critical to later appellate review. Finally, it gives all parties and the appellate courts reasonable notice of the scope of the evidence that was considered by the court in support of its suppression ruling. . Of course, we cannot fault the Commonwealth in this regard as it prevailed at suppression. . We note that this Court has recognized two types of prospective application of decisions: (1) "purely prospective,” which does not apply the new rule of law to the parties to the case, but only to cases commenced thereafter; and (2) “prospective” generally, which does apply the new rule of law to the parties in the case and all litigation commenced thereafter. See Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146, 1150 n. 8 (1997) (quoting Blackwell v. Commonwealth, State Ethics Comm'n, 527 Pa. 172, 589 A.2d 1094, 1103 (1991) (Zappala, J., concurring)). We find the latter of these categories to be the more appropriate in the circumstances presented by this appeal.

Opinion by Mr. Justice Fell, The first two assignments of error relate to the right of the plaintiffs to recover. They cannot be sustained. The boy injured was five years and three weeks of age. While the defendant’s car was standing at a crossing, he got on a step of the front platform. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal bar fastened to the woodwork of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass and saw him and shook the door and caused him to fall. This testimony was denied by the motorman who testified that he did not see the boy or shake the door, and there was testimony that tended to show that the motorman could not have seen him because the wooden part of the door was several inches higher than the boy’s head and that the boy while standing on the step was two or three feet back of the position occupied by the motorman. It was not, however, shown that it was impossible that the motorman by change of position or by leaning over could have seen, and the positive testimony of the boy that he did see him took the case to the jury on the ground of negligence in shaking the door when the boy was in a place of danger: Levin v. Traction Co., 194 Pa. 156. The father of the boy was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended. The boy had gone almost daily to the home of his aunt nearby and had on a few occasions gone with his cousin, a boy sixteen years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt’s house or was likely to do so. The remaining assignments of error may be considered together. They charge misconduct of counsel in addressing the jury. The remarks objected to as being improper are: “ Now this is what I charge frankly and plainly in this case a suppression of evidence, and by that I ask you twelve men to determine this ease, if you have any hesitancy about the conclusion upon the evidence in the case. I ask you in money to make this company, with its earnings, and out of its earnings, out of its millions, for which it is in this business — it is not a charity, it is not a benevolence, it is a business just as hard and cold as any that can be estimated in dollars and cents — I ask you to make this company out of its millions to put on that stump a foot as good as the original. It is idle for them to cry for justice. Give it to him, that is what we want and that is what we ask. Give it to him, whatever we ask, five thousand, ten thousand, fifteen or twenty thousand dollars, whatever it is make them pay it, and give them the justice they want.” These remarks were objected to at the time and were taken down by the official stenographer and by leave of court filed as a part of the record. Motions were made to withdraw a juror and continue the case. The overruling of these motions is assigned for error. There was not the slightest foundation in the testimony nor in the circumstances connected with the case to support the statement of counsel that there had been a suppression of evidence and the jury were so instructed by the court in answer to points presented by defendant’s counsel. This instruction did not cure the error of counsel. The effect of the statement on the minds of the jury is as manifest as was its purpose. The other statements were intemperate appeals to the prejudices of the jury and invitations to find a verdict on false grounds. No verdict that may have been obtained by such means should be allowed to stand and the effective remedy is to withdraw a juror and continue the case. If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge. A cause is not well tried unless fairly tried and a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony. It is not founded on the truth of the cause. In sustaining an assignment based on improper comments of counsel, it was said in the opinion in Holden v. Railroad Co., 169 Pa. 1, that the only efficacious remedy in such a case was to withdraw a juror, and that the practice of doing so which obtained in some courts should be widely extended as an admonition to counsel. In the recent case of Wagner v. Hazle Township, 215 Pa. 219, an offer of testimony was made with the intention to bring to the attention of the jury an irrelevant fact. In reversing the judgment it was said by our Brother Mestbezat : “ When an attorney in the trial of a cause willfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the case at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the. justice of a cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the ■jury, he fails to observe the duty required of him as an attorney and his conduct should receive the condemnation of the court. This condemnation can and should be made effective.” The judgment is reversed with a venire facias de novo.

Per Curiam: We affirm this case upon the opinion of the learned president judge of the court below. The decree is affirmed and the appeal dismissed at the costs of the appellants.

Opinion by Teexleb., J., This is a contest between wife and husband as to which shall have the custody of the infant daughter, born, October 12, 1924. The parties were married when he was a student at State College. She was fifteen years of age. They have not been very successful in their married life and are now separated, he living with his parents and she with her mother and step-father. The court made an order awarding the custody of the child alternately for a period of six months to each of the two parties. The court must have regarded both parties as proper persons to have the child, else it would not have awarded the custody of -the child to each of them alternately. This being so, it follows, other things being equal, that the child owing to its tender years, being but two and a half years old, should be given to its mother. It has been the usual practise in Pennsylvania ever since the case of Commonwealth v. Addicks, 5 Binney, 519, where no reason appears to the contrary, to commit a child of tender years to its mother. See P. & L. Digest of Dec. Vol. 15/25130, where a number of cases are cited. A full discussion of the subject appears in Com. v. Hart, 14 Phila. 352. The rule is not a rigid one and is not observed where the welfare of the child is not promoted by adherence to it. Ordinarily, the needs of a child of tender years are best served by the mother who, in the common experience of mankind, is better fitted to have the charge of it, although there are cases where the contrary appears. It certainly will do this child no good at the expiration of every six months to remove it to another home and change its environment. The paternal grandparents would probably have different rules in the control of the child than the mother, for when the mother and child lived with them, one of the causes of discord was that the grandparents were over-indulgent and adverse to employing methods which were both for the good of the child and of the mother. Furthermore, we have carefully read the testimony and are convinced that if there is any preference to be given to the parties aside from the fact that the mother is the natural guardian for an infant, it should be given to her. The testimony of the husband did not impress us. As to the other matters introduced into the case, as throwing light on the fitness of the contending parties, the wife and her mother appear in a favorable light and are corroborated by disinterested witnesses. Upon the merits of the case, apart from the presumption in favor of the wife, we feel the best interests and permanent welfare of the child will be promoted by giving the mother the custody. The lower court directed that the child should not be taken by anyone beyond the jurisdiction of the court without permission being given by it to do so. If the court is desirous of having the right of the father and grandparents to visit the child preserved and fears that a permanent removal from the county might deprive them of it, we suggest that the way indicated in Com. v. Strickland, 27 Pa. Superior Ct. 309, and Deringer v. Deringer, 101 Phila. 190, be followed and a bond be exacted requiring the mother to produce the child at such times and places as the court may thereafter direct. We infer from what was said at the argument that the mother is able to furnish such bond. The order of the lower court is reversed and the record is remanded with the instructions that the court award the custody of the infant to its mother with like provisions as to the right of the father and paternal grandparents to visit it as are contained in the former order-. Appellee to pay the costs.

Mr. Justice Gordon delivered the opinion of the court, February 15th, 1886. We full}'- agree with all that has been said by the learned counsel for the plaintiff in error as to the inviolability of the charter of the Pennsylvania Railroad Company. We not only now assent, as we always have done, to the principle announced by the Supreme Court of the United States, in the Dartmouth College case, but are perfectly aware that whether we so assent or not, we must, as a subordinate jurisdiction, give to that case its proper effect. We also agree, that the framers of the Constitution of 1874, did not intend to violate the laws of the Federal Government, or to repeal the provisions of any charter theretofore granted by the Legislature of Pennsylvania. It follows, that a protracted discussion of these points would subserve no valuable purpose. Nevertheless, it seems to us as of no avail to deny the plain and obvious reading of sec. 8, art. 16, of the present Constitution. “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or .enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” It is admitted that the then existing municipal corporations are included in this provision, and that no language is elsewhere found in the Constitution, or its schedule which exhibits an intention to exclude them from tbe restriction thus imposed. But, confining ourselves to the words of this section, we are unable to comprehend the force of the reasoning which would exclude “ other corporations ” from the conditions to which their immediate correlatives have been subjected. Moreover; if we have regard only to the grammatical structure of the sentence, the doubt would be not as to the intention to embrace corporations then existing, but rather future ones. The word “invested,” standing as it does alone, has undoubtedly a present signification, and cannot be made to embrace the future but by the addition of some verbal auxiliary. Thus, whilst we have no doubt of the design to apply the provisions of this section to corporations which should thereafter be erected, yet can we by no possible construction, exclude those then in being. The answer, however, is, that the section under discussion, by 'the express terms of the constitution itself, was not intended to apply to private corporations existing at the time it was framed, and the 10th section of Article 17, is cited in support of this hypothesis: “The General Assembly shall not remit the forfeiture of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution.” But we assume without fear of contradiction, that the provision here stated was not intended to apply to those corporations which could not claim exemption from what we may call constitutional legislation; in other*words, such as from the nature of their charters, must necessarily come within the provisions of this new organic law. It would be folly to call upon such to accept that concerning which they had no choice. Therefore, all corporations falling within the terms of the Act of 1855, or the Amendment of 1857, are, so far as the provisions of that statute, or that amendment extend, concluded by the action of the convention of 1873. Beyond this, however, its prescriptions neither did, nor were intended to go, and so we have held in Hays v. The Commonwealth, 82 P. S. R., 518, and subsequent, cognate cases. We may also add, in order to avoid the possibility of mistake, that the power of the convention was, in this particular, no greater than that of the legislature. The defendant’s charter must be regarded in the light of a contract, and is in all particulars inviolable, unless in the charter itself, or in some general or special law to which it was taken subject, there is a power reserved to the General Assembly to alter or amend, and, as in that case, the legislature might intervene to modify the charter of a corporation, so might the Constitutional Convention. Whence, then, did the Pennsylvania Railroad Company derive its authority to build the branch from the western side of the Schuylkill to Fifteenth street? Certainly not from the Act of 1846, for that Act gave it a charter which embraced only the power to build and operate a road from Harrisburgh to Pittsburgh, but rather, as the counsel for the defendant below contends, from the Act of the 16th of May, 1857. This Act, inter alia, reads as follows: “That any company already incorporated by this Commonwealth, becoming the purchaser of the said main' line shall possess, hold and use the same under the provisions of their Act of incorporation, and any supplement thereto, modified, however, so as to embrace all the priyileges, restrictions and conditions granted by this Act in addition thereto.” This gave to the Pennsylvania Company a new charter containing all the privileges of that of 1846, and it was under the rights thus conferred that it built, and now operates, the branch in question. In this we, without hesitation, concur with the learned counsel for the defendant, who contends that the company was not driven to the necessity of resorting to the Act of 1874 for power to build i'ts branch, but possessed that right under the privileges conferred by its original charter as extended by the Act of 1857. The question .here raised, was fully discussed and settled in McAboy’s Appeal, argued at Pittsburgh, November 3d, 1884, (11 Out., 548), and needs no further discussion. But if the defendant’s charter dates from 1857, it would seem to be cltfar that it was taken subject to the Act of May 3d, 1855, if not to the amendment of 1857, and if so, that Act must be taken as part of the charter. “Every charter of incorporation,” says the statute, “granted, or to be granted, shall be deemed and taken to be subject to the power of the legislature, unless expressly waived therein, to alter, revoke or annul the same whenever in their opinion it may be injurious to the citizens of the Commonwealth, in such manner, however, that no injustice shall be done to the corpora-tors, and as fully as if the reservation of said power had been therein expressed.” That under this Act the legislature has the power to alter all charters granted subsequently to its passage there can be no doubt, and no reason has been given why the charter of the defendant should be exempted from its provisions. The allegation that it was so exempted by reason of its purchase of the main line of the public works cannot be sustained, for we find nothing of the kind in the Act relative to the sale of those works. By that purchase it got, in addition to its right to hold and operate the main line of the state improvements, what was equivalent to a new charter, by which powers not conferred by the sale itself, were vested in it, and surely it took those powers subject to the Act of 1855. The conclusion here stated cannot be avoided but by showing that the new grant was accompanied by an express renunciation of legislative jurisdiction. Nor must we pass unnoticed the fact that this company accepted, as part of its charter, the Act of the 14th of April, 1868, and so became subject to the constitutional amendment of 1857, and, as a consequence, to the legislative power of the General Assembly. We thus find that the legal status of the Pennsylvania Company, at the time of the adoption of the constitution of 1874, was, in all respects, similar to that of- the Monongahela Navigation Company at the time of the passage of the Act of 1844, so that we may regard the case of that company against Coon, reported in 6 Barr, 379, as decisive of the controversy in hand. The corporation here mentioned was erected in 1836 without the imposition of any conditions respecting such consequential damages as might result from the construction of its works. On the 24th of June, 1839, a supplemental Act was passed by which certain new privileges were granted to the company, and in the last section of that Act the legislature reserved to itself the light “to alter, amend, or annul the charter, in such manner as to do no injustice to the stockholders.” Now, we may pause here for the moment to observe the similarity of the language thus used to that found in the Act of 1855, and the amendment of 1857, and to remark that this reservation of legislative power is as well part of the defendant’s charter as it was that of the Monongahela Navigation Company. “ Every charter of incorporation granted, or to be granted, shall be deemed and taken subject to the power of the legislature, unless expressty waived therein,.....as fully as if the reservation of said power had been therein expressed.” The similarity of the position of the two companies with reference to the subject matter under consideration is thus rendered certain, and the decision which determines the liability of the one, must also, if adhered to, settle that of the other. In 1842, Coon et al., brought their suit for damages resulting to them from the water backed by the defendant’s dam on their mill wheels, but the Court refused to sustain this action, for the reáson that this locum tenens of the state was not liable for damages of this character. So the matter stood until 1844, when the General Assembty enacted, “ that the company shall make amends for any damages done,, or that may be done, to lands and property on the Monongahela River, or its branches, or its tributary streams, by overflowing the same.” Under this Act the plaintiffs brought a new action for the same damage as those claimed in the former suit, and it was held that they were entitled to recover. It must here be observed, that not only was the same defence open to the company in the case cited, as that now urged for the defendant in the present contention, but to the further defence that the Act of 1844 was retrospective in its operation and imposed damages for which the Courts had previously declared the Navigation Company was not liable. Nevertheless, Chief Justice Gibson, who delivered the opinion of this Court, thus disposes of the controversy: “ Now, it has already been determined that the case before us was not provided for in the original Act of incorporation; and had it continued to stand on that foot, the power of the state would have been incompetent to burden the company with charges not originally imposed on it. But in 1839 it accepted a grant of further powers and privileges, in consideration of an express reservation by the legislature qf the power ‘to alter, amend, or annul the said charter of said company, at any time thereafter, in such manner that no injustice be done to said corporation; ’ and in execution of it, they declared, in 1844, that the company ‘shall make amends for any damage done, or that may be done, to lands or property laying upon the Monongahela River, or its branches and tributary streams, by overflowing the same.’ It is evident, that by accepting additional privileges and powers on the terms prescribed in the grant to them, the company surrendered the inviolability of its contract to the discretion of the legislature. How this discretion has been exercised it is not for us to say; but if we were bound to do so, we would promptly say that it has, in the words of the declaratory Act, done no injury to the company.” We have thus a complete disposition of the case in hand, without resorting to the argument, which to us seems fallacious, that the constitution only provides a remedy for the enforcement of a pre-existing right, hence, does not infringe the company’s charter powers. The error discoverable in this position is, that there wrns no such pre-existing right as against the Commonwealth, and those upon whom she had conferred' the right of eminent domain, and so it was held by all the cases from Shrunk v. The Navigation Company, dowm to the Lycoming Cas & Water Co. v. Moyer, 3 Out., 615. On the other hand, whilst this provision does not in terms abridge the defendant’s right of eminent domain, yet it does encumber the exercise thereof, and thus alters or modifies its charter. We, therefore, rest our decision on what we deem its legitimate ground, that is, that the Act of 1855, and the constitutional amendment of 1857, must be taken to be as much part of the defendant’s organio law, as though written therein, and, as a consequence, as well the constitutional convention, as the legislature, had the power to subject the company’s exercise of the right of eminent domain to the provision that it make just compensation, not only for the property which it might choose to take, in the strict sense of that word, but also for such as it may injure or destroy. What we have already said substantially disposes of all the assignments of error except the ninth and tenth, and they are comparatively unimportant. It-is certainly idle to urge that a remedy is given in the defendant’s charter for the injury here complained of, when, throughout the case, the conten tion on part of the company, has been that no means of redress for such injury exist either in or out of the charter. Moreover, it is not pretended that the constitutional provision which requires compensation for property injured, before such injury has been complied with either by payment or security. The case thus falls within the doctrine announced in Dimmick v. Broadhead, 25 P. F. S., 464, and McClinton v. The Railroad Co., 16 Id., 404. The tenth assignment is answered by saying: where the legal estate is vested in a trustee, all actions at law which affect the trust estate must be brought in his name: Perry on Trusts, 3d ed., vol. 1, sec. 328. To prove, therefore, that the plaintiff, in the suit in hand, had individually no interest in the property, but held only as trustee for certain national banks in the city of Pittsburgh, could have no result legitimately helpful to the defendant’s case. The judgment of the Court below is affirmed.

Kennedy, J. (after stating the case) delivered the opinion of the Court. Several matters have been assigned for error, the first of which is the exception taken to the opinion of the court on the admission of evidence. So far as the defendant offered to give evidence of the instructions of the plaintiff in the execution to the sheriff, in regard to making the levy and the interest or estate that he should levy on, the court decided in favour of the plaintiff by rejecting the evidence; and I think very correctly too: but so far as the evidence offered to be given tended to show what property was embraced within the terms of the levy, the court decided in favour of its admission ; and this, if there be error in if, is the only thing in the opinion of the court on this point, that the plaintiff can complain of, because the other matters were ruled in his favour. Then with respect to parol evidence being admissible for the purpose of showing what was included within the description contained in the levy, and whether the house and lot of ground in question were within it or not, it seems to me impossible that a doubt -can be entertained of its admissibility. It is only by such evidence that the locality of the property described in the levy can be ascertained and identified; and a.s the -lot in controversy is not specifically described in, or made a part of the levy, it must be obvious that whether it be actually embraced within it or not, must be determined by means of parol evidence. The reasonableness of this principle seemed to be rather admitted by the plaintiff’s counsel in the argument; but it was objected that, under the decision of the court admitting the evidence offered on this point, other evidence was given altogether inadmissible in its character; and that the court, in their charge to the jury, took notice of it as if it were properly admissible, and entitled to consideration by the jury in forming their verdict. If any such evidence were admitted, it certainly does appear from the record of the case to have been done not through any error or mistake of the law on the part of the court. And it cannot be that a judgment is to be reversed, because evidence, not strictly admissible on the issue joined between the parties, was given by one party without objection from the other, and afterwards commented on by the court to the jury as if it were properly admissible. Beside, this objection does not appear to be comprehended in any of the errors assigned. The judgment cannot, therefore, be reversed on the first error assigned. The second error is an exception to the charge delivered by the court to the jury, on'certain points submitted by the counsel of the plaintiffs. So far as questions of law were involved in these points, they were correctly answered. But some of them were clearly questions of fact, and therefore came exclusively within the province of the jury to decide them according to the evidence : as in the third point, where the court was requested to charge the jury, “that the levy embraced all the interest of Carlisle in the tract of land bought from George Sheakly which was bound by the judgment, including Georgetown.” Now whether the levy did embrace all the land purchased by Carlisle of Sheakly which was bound by the judgment, or not, was certainly a matter of fact to be decided by the jury from the evidence given. By comparing the description of the land contained in the deed and thereby conveyed from Sheakly to Car-lisle, with the description of the land contained in the lev3q I should say that they were not the same ; and whether either included the lot in question was a fact which could only be determined by the aid of parol evidence, because it is not pretended that it is specifically mentioned or described either in the one or the other. The court, then, were not bound, and indeed could not, without usurping the province of the jury, give such direction as was requested, in this particular, to the jury. The questions, whether the lot of ground in contest was embraced within the levy, or not, and how far the parol evidence given on the trial was to be regarded in deciding it, comprehend every thing involved in the points submitted by the plaintiff’s counsel to be answered by the court. It being admitted on the trial that the land in dispute was one of th'e lots of Georgetown, No. 32 in the plan of the town, and that it was not disposed of by Sheakly prior to his conveyance to Carlisle, nor reserved by Sheakly in his deed ; it was therefore contended by the plaintiff’s counsel, that it was necessarily embraced in the sheriff’s levy; because, as is alleged, the levy expressly describes the land taken in execution as being “ the same piece and tract of land on which Georgetown is situated.” If this were really so without more, the conclusion contended for by the plaintiff’s counsel, would perhaps be more plausible. But it seems to me that the description in the levy is susceptible of a different construction, and that it may as well be read in such a way as to exclude the lots of the town altogether, as to give it the meaning contended for by the plaintiff’s counsel, only so far as the lots of the town are specifically called for, which seems to be the case in respect to the lot No. 46, on which the farm house stands, and lot No. 22, on which the grist mill is erected. In order to render the words of the levy intelligible and to make sense of them, they must undergo some change. The words of the levy are, “ all the right, tide and interest of the defendant of, in and to eighty acres of land, more or less, situated in Sandy Creek township, adjoining of and the same piece and tract of land on which Georgetown is situated, &c.” Now, the words, “ adjoining of and the same piece, &c.,” are unmeaning, or rather perhaps involve a contradiction; because to say that a piece or tract of land is the same land that it adjoins, is absurd and cannot be; yet this would seem to be the literal meaning of the words used in this part of the levy, if they can be said to mean any thing at all. It may be fair, however, notwithstanding this apparent absurdity, to presume that something rational Was intended by the introduction of them. But in order to get at that intention, it is necessary to change the form of them and either to'supply something that is wanting, or otherwise to remove what may seem to have been introduced unnecessarily, through want of capacity perhaps to put the matter in writing in intelligible form. By striking out the copulative “and” between the words “adjoining of” and the word “ same,” the description becomes at once not only perfectly intelligible but- sensible ; and will then read thus : “ all the right, &c. of the defendant of, in and to eighty acres of land, &c. adjoining of the same piece and tract of land on which Georgetown is situated.” It is easy to imagine that the word “and” may have been inserted here inadvertently or ignorantly; but it is utterly impossible to supply any words that are wanting that would make sense by retaining (lie particle “and,” and at the same time fulfil or meet with certainty the intention of the sheriff when he committed the levy to writing. If the word “and” be rejected as surplusage, the town lots will necessarily be excluded from the levy, with the exception of those whereon the fiante house and grist mill are erected, which are particularly called for in the close of it. The only objection I see to this form of rendering the language of the levy is, that the natural import or meaning of the words, “the same piece or traet of land on which Georgetown is situated,” must be the same with the one hundred acres conveyed'by Sheakly to Carlisle; and hence the levy would exclude all the land to which it appears Car-lisle had at that time any claim there, and consequently might render it entirely inoperative. To this, however, I think it might be answered, without doing much violence to the true import of these words, if it should be found necessary in order to avoid such a result, that they ought to be confined to mean merely the ground plat of the town, and not the tract of land itself as it was before the town was laid out and taken from it. But as this construction of the levy does not seem to be necessary in order to support the charge of the court below to the jury, in answer to the points submitted by the plaintiff’s counsel, I do not wish to be understood as deciding positively in favour of it. For I am satisfied that the circumstances given in evidence, when taken in connection with any rational construction that can be put on the levy, are amply sufficient to show beyond all doubt, that the lot of ground in question, as well as all the town lots sold by Carlisle and improved by the erection of building thereon before the levy was made, were not intended and cannot be considered as embraced within it. The terms of the levy seem to be completely satisfied, by giving to it all the unimproved lots retained by Carlisle and enclosed within his fields and occupied as part of his farm, together with the lots on which the dwellinghouse and mill stand, with the out buildings used as appurtenant thereto. The purchaser will thus obtain the full quantity of land called for by the terms of the levy, and perhaps more, as well as all the buildings and improvements to which there is the slightest reference in it. The circumstance of the frame house and grist mill being particularly specified in the levy, without naming any other building whatever, is powerful evidence to show that houses and buildings separate and distinct from them were not intended to be included within it. The maxim expressio unius est exclusio alterius applies with full force here. From the parol evidence given on the trial, it appeared that as many as seven or eight of the town lots embraced within the deed of conveyance from Sheakly to Carlisle, had been disposed of by the latter, upon which valuable dwellinghouses and other buildings were erected at the time of the levy; yet all these may be claimed by the plaintiff under his purchase at the sheriff’s sale with as much propriety as the house and lot in question. This evidence, taken'in connection with the terms of the levy, was even more than sufficient to satisfy any reasonable mind, that the lots thus improved were not included in the levy, and that the plaintiff, under his purchase at sheriff’s sale, could have no right to them either in law or equity. As was there was no attempt on the part of the plaintiff to controvert the truth of this parol evidence, the court below were warranted in telling the jury that the plaintiff could not recover; and this disposes of the third and last error assigned. Judgment affirmed.

The opinion of the Court was delivered by Kennedy, J. The first error assigned is an exception to the court’s admitting the deposition of William Hays to be read in evidence. 1. Because his deposition was not regularly taken.' 2. Because he was interested in the result of the trial of the cause, and therefore not a competent witness. 3. Because the matters testified to by him were not admissible. The objection to the mode of taking the deposition is without even the shadow or colour of ground to support it. It was duly taken under a commission awarded for that purpose by the special order of the court, with interrogatories thereto annexed by the defendants, in proper form and not leading, as alleged by the plaintiffs, as, also, cross-interrogatories on the part of the plaintiffs. The plaintiffs, likewise, joined therein, by naming a commissioner, who attended and joined in executing it. The objection to the competency of the witness was, that he, as one of the heirs of his father, Robert Hays, deceased, had joined with some of his brothers and sisters, other heirs of the same, in executing a release of all their interest and estate in the land in dispute, which descended to them from their father, and to the two defendants, Robert Hays and David Hays, two other heirs and sons of the same father. It is unnecessary here to decide whether, upon a recovery had in this case by the plaintiffs, the witness would have been bound by his covenant of warranty, contained in the deed of release, to have made good, or to have contributed to the loss of the defendants. For it might be a question, perhaps, whether the release ought to be construed so as to extend beyond the occasion for giving it, and what might naturally be supposed to have been the design and intention of the parties at the time: which may be, that each of the releasors should release his own individual interest in the land, and be responsible for it alone. If the covenant contained in the release bound him no further than this, it is plain that a recovery by the plaintiff, in right of his wife, as one of the heirs of the said Robert Hays, deceased, would not render the witness liable for any loss which the defendants might thereby sustain. The decision, however, of this question is rendered wholly unnecessary, as the defendants, Robert Hays and David Hays, executed and delivered a deed of release to the witness before he gave his testimony under the commission, releasing him from all liability to them, by reason of anything contained in the release which he, with some of the other heirs of Robert Hays, deceased, executed in their favour. The first error is, therefore, not sustained. The second error is an exception to the admission of a receipt given by the plaintiffs for money which they received of the defendants, Robert and David Hays; and a note whieh the latter gave to the wife of the plaintiff for the balance coming to her, in full of her interest in the real and personal estate of her father, as was alleged. We can perceive no valid objection to this testimony. Testimony was given tending to establish an agreement between the widow of Robert Hays, deceased, and his heirs, for the partition of his real estate amongst them; and testimony, in connection with the receipt and the note, was also given, going to show they were given in carrying the agreement for the partition into effect. And, whether the agreement for the partition was verbal or written, the testimony objected to was admissible, because a verbal agreement for the partition of real estate is good and binding on the parties, if carried into execution. Therefore, the testimony being to show that the agreement for the partition of the estate was carried into effect, and particularly by the plaintiffs who were claiming to have it divided again, and thereby get a double portion of it, was clearly admissible. The third error is an exception to the admission of the testimony of Jane Kline, which was objected to for the same reasons as that of William Hays, which has been shown to have been properly received. The fourth error is an exception to the reading, by the defendants, of certain parts of the deposition of Agnes H. Martin, without reading the whole of it, which deposition had been taken by the plaintiffs. Supposing the parts omitted to be read by the defendants to, be admissible, it was certainly competent for the plaintiffs to read them, and thus to have all the benefit to be derived therefrom, the same as if they had been read by the defendants. If the deposition contained anything favourable to the, plaintiffs, it was, perhaps, rather favourable than otherwise to them that, the defendants first read certain portions of it in evidence, as it tended, in some degree, to show that they considered her not altogether destitute of credibility. There was no error, therefore, committed by the court in permitting the defendants to read such portions of the testimony taken by the plaintiffs as best suited their purpose, leaving the plaintiffs, if they chose, to read the residue. The fifth error is an exception to the admission of a release, dated the 2d of June 1827, executed and acknowledged by, other heirs of Robert Hays deceased, to Robert Hays and David Hays, two of the defendants, but not executed by the plaintiffs! We think that it was properly received and read in evidence to the jury,’because it showed that the agreement for partition of the real estate of the deceased Robert Hays, of which evidence was given, was by means of the release carried into execution so far as it went; and also because it showed the tenor of a release testified to have been executed by' the plaintiffs for the same purpose, drawn by the same scrivener, and most likely of the same tenor with that excepted to, which was lost or could not be found. The sixth error is an exception to the court’s admitting the same release as that mentioned in the fifth ..error to be read in evidence in connection with the answer of William Hays to the seventeenth interrogatory in chief propounded to him, and annexed to the commission under which his testimony was taken. That it was admissible has been already shown in our answer to the fifth exception. For it being testified that a release, drawn prior to it, by the same scrivener, who had since died, for th& same purpose; had been executed by the plaintiffs, as also others of the heirs of the said Robert Hays deceased; but was lost; the- release offered to be read and objected to, taken in connection with the answer of William Hays to the seventeenth interrogatory in chief, was some evidence at least to establish the object, design and purport of the lost release, which, if it could have been procured, would have been clearly evidence against the claim of the plaintiffs of a very decisive character. The seventh error is an exception to the answers given by the court to the second, third, fourth and fifth points submitted by the counsel of the plaintiffs. By these points the court was requested to instruct the jury, that the release signed by the wife of the plaintiff, not being acknowledged according to law, could not bar the recovery of the plaintiffs; and should the jury believe there was a parol sale of the wife’s interest in the land, still, unless followed by a possession taken in pursuance of the contract and the payment of the purchase money, the case came within the statute of frauds, and therefore no interest passed to the defendants. That the plaintiffs having shown a legal title in them, could not be devested of it, except by clear and conclusive proof of a parol sale, and possession taken in pursuance of the contract: and that the husband’s verbal assent to the execution of the release would not render it valid unless acknowledged in the manner prescribed by- law. These points, in our opinion, were answered by the court as favourably at least as the plaintiffs had any right to claim. The court instructed the jury, although the release signed by the wife of the plaintiff was not acknowledged in the manner the law requires, yet taken in connection with other facts, of which testimony had been given, it would be sufficient to bar the recovery of the plaintiffs. That as a general principle, it was true that the wife’s interest in land could not be disposed of by a- parol sale thereof, unless followed by possession taken in pursuance of the contract and payment of the purchase money, as otherwise it would come within the statute of frauds. But still there were other ways by which a person’s title to land might be devested, that had come to him or her by descent. The Orphans’ Court could devest the title of a married woman without her assent, and convert it into personalty; and; in 1826, could have ordered it to be paid to her husband, who might have consented that it should be paid to his wife, and the receipt of either for the money, in such case, would be a complete discharge of all right on the part of either or both, afterwards, to either the money or the land. That a minor or a married woman might make partition, even without deed, and devest their title to lands which came to them by descent. That it was true, in general, that a deed signed by the wife alone, whether properly or improperly acknowledged, would not, per se, convey the title of either the husband or herself; but there was testimony in the case before them, taken in connection with the husband’s verbal assent to the execution of the release by his wife, which, if believed, would in equity bar the plaintiffs’ recovery. Taking all the instruction thus given by the court to the jury, we are decidedly of opinion that the plaintiffs have no reason to complain of it. The right which the plaintiffs had to the land in question having been acquired by descent, in conjunction with the other children of Robert Hays, deceased, including the two defendants, Robert Hays and David Hays, it was in the power of these defendants, at any time, by an application to the Orphans’ Court, to have compelled the plaintiffs 'to make a partition of it; and therefore, being compellable by law to do so, they might well do it without process of law; and, if made equally between them, it would for ever afterwards be binding on both husband and wife. And the partition, if equal at the time it was made, would be good, however unequal it might become afterwards by subsequent events. Co. Litt. 171 a; Fitz. N. B. 62, F. Neither is it essentially requisite that a voluntary partition should be by deed, in order to make it binding; as between parceners, at least, it is good if made by parol without deed. Litt., sec. 250. And it is so between tenants in common, where they execute the same in severalty by livery. 1 Inst. 139 a; Docton v. Priest, (Cro.Eliz. 95); Ebert v. Wood, (1 Binn. 216). In this last case a partition between tenants in common, made by parol, and possession taken by each of his respective property, was holden by this court to be good. In making partition of an intestate’s real estate among the heirs, it is not necessary that a certain portion or allotment thereof in kind should be given to each heir. This, under process from the Orphans’ Court, is only done when the estate will admit of such a division without injuring or spoiling the whole; and if to divide it even into two parts would produce such injury, the whole must be valued; and then the partition is made by giving the estate to some one or more of the heirs, if any one or more of them will agree to take it at the valuation so made thereof, upon his or their paying, or securing to be paid, to the other heirs their respective proportions of the valuation money. But if none of the heirs will take it at the valuation, the court, at the request of any one of them, will direct it to be sold, and the money arising therefrom to be distributed among them. Seeing, therefore, that any one of the heirs may compel a partition of the estate thus to be made by legal process, it follows from the established doctrine laid down above, that if it be done by the agreement of the parties, without legal process, and be fair and equal, it will be good and binding upon all, whether femes' covert or not, if their husbands join, or minors, if with the consent of their guardians. That the partition, as claimed to have been made by the defendants in this case, was equal at the time it was made, does not appear to have been denied or controverted; and that there was abundant testimony given on the trial, going to show that a parol agreement for a partition of the estate was made, in which all the parties joined, and going to show, also, that it was afterwards carried into execution, cannot well be doubted. It would also appear from the evidence, and so the jury must have found, that the plaintiffs received their full purpart of the estate; or, if they had not, it is not probable that they would have acquiesced so long in the defendants’ enjoyment of the land in question, seeing them improving it, too, as their own, by a large expenditure of money and labour laid out and bestowed upon it. To permit the plaintiffs to recover under such circumstances would be allowing to them a double portion of the estate, beside giving them a full portion of all the labour and money done and expended by the defendants in improving it. This would be the very height of injustice, and contrary to every principle of equity. There is nothing in the remaining errors assigned. Judgment affirmed.

Opinion, Mr. Justice Mitchell : The first six specifications of error are to the findings of fact and the assessment of damages, but the report of the referee having been confirmed by the court, and no plain mistake being shown, we dismiss them without discussion. But the learned counsel for the city have made an urgent and ingenious effort to bring this case within the ruling in Ford v. School Dist., 121 Pa. 543. The distinction, however, is plain. That case was an action for the negligence of the janitor of a school building, and was decided on the ground that, under the Pennsylvania statutes, school districts are agencies of the commonwealth for a special and limited purpose, with no funds under their control but public moneys devoted to a specific charity, and not divertible, even indirectly, to any other use. This purpose might be entirely destroyed by holding the funds liable for the consequences of torts by the officers or servants of the school district, and therefore such liability cannot be sustained. It had been held as early as Wharton v. School Dir., 42 Pa. 358, that school districts are not municipalities, but mere territorial divisions for limited purposes, and belonging to the class of quasi corporations, which exercise some of the functions of a municipality within a prescribed sphere. To the same effect are Commonwealth v. Beamish, 81 Pa. 389; Colvin v. Beaver, 94 Pa. 388; Erie School D. v. Fuess, 98 Pa. 600. And this is the well-settled general doctrine. “It is essential.....to bear in mind the distinction .....between municipal corporations proper.....and . . ......quasi corporations, such as townships, school districts.' .... The decisions.....hold the former class of corporations to a much more extended liability than the latter, even where the latter are invested with corporate capacity and with the power of taxation: ” 2 Dillon Mun. Corp., 3d ed., § 961. The present action differs from the class we have been considering, in being against the city of Philadelphia, and in being an action for nuisance by the negligent use of property. The city, having a general power of taxation, and exercising full municipal functions, comes under the larger measure of liability spoken of by Judge Dillon. Just how far this liar bility extends has not been definitely decided, as is said by our Brother Clark, in Boyd v. Insurance Patrol, 113 Pa. 269, 279, where he reviews the cases with special reference to the liabilities of charitable or other corporations exercising a quasi municipal function. Nor is the distinction between the cases where municipal corporations have been held liable and where they have not, entirely logical or obvious, as was observed by Chief Justice Gordon in Ford v. School Dist., 121 Pa. 543, 549. But, in the class of cases to which the present belongs, injuries arising from the misuse of land, there has never been any substantial hesitation in holding cities liable. The ownership of property entails certain burdens, one of which is the obligation of care that it shall not injure others in their property or persons, by unlawful use or neglect. This obligation rests, without regard to personal disabilities, on all owners alike, infants, femes covert, and others, by virtue of their ownership, and municipal corporations are not exempt. The general rule is thus stated: “ Municipal corporations are liable for the improper management and use of tlieir property, to tbe same extent and in the same manner as private corporations and natural persons. Unless acting under valid special legislative authority, they must, like individuals, use their own so as not to injure that which belongs to another:” 2 Dillon Mun. Corp., 3d ed., § 985. The particular question here involved does not seem to have been before this court, but it was expressly decided in Shuter v. Philadelphia, 3 Phila. 228, by Judge Sharswood, when president of the District Court: “ The municipal corporation owning and occupying property for public purposes is as much subject as a private citizen to the usual rule, sic utere tuo nt alienum non lsedas. The city is as much bound as an individual owner of a lot, to find an outlet for the water on it, without encroaching on his neighbor.” We adopt this as a correct exposition of the law. Judgment affirmed.

Opinion by Mb. Justice Dean, Charles N. Raymond borrowed from Anna H. Stroup $2,000, and to secure the loan, executed to her a mortgage in that sum on a lot of ground and dwelling house in the borough of Middletown. The value of the property was not less than $2,500. A judgment bond accompanied the mortgage; default having been made by Raymond in payment of the debt and interest, judgment was entered on the bond, execution issued, and the mortgaged property seized and sold by the sheriff on December 30, 1896, to Wilmer Crow, this appellant, at his bid of $400. There were other bidders, but it is found as a fact by the court below, from the testimony, that all parties interested, which would include plaintiff, defendant and purchaser, believed the sale was made subject to the mortgage. It appears clearly from the testimony, that Crow, the purchaser, until some time after the sale, assumed the property had cost him over $2,400. It was then discovered, that as the sale had been made on the bond the mortgage had been given to secure, the lot was discharged from the lien of the debt. This rule was then taken, at instance of an intending bidder, and plaintiff and defendant, before the sheriff’s deed was acknowledged, to set aside the sale. A bond with ample security was tendered, to be filed in court, stipulating that on a resale a bid sufficient to cover mortgage, debt, interest and costs would be made. After testimony taken, the court set aside the sale. The purchaser, Crow, appealed to this court, and counsel for plaintiff and defendant in the judgment, now move to quash the appeal, assigning several reasons, only one of which we notice, viz: No appeal lies from the discretionary exercise of a power resting with the common pleas. It is settled that the setting aside or refusing to set aside a sheriff’s sale, is in the sound discretion of the court below; and unless there be a manifest and gross abuse of that discretion, this court will not disturb the decree. All our cases touching the question are so fully cited in the opinion of the Superior Court, Laird’s Appeal, 2 Pa. Superior Ct. 300, that we need not repeat them. And it is held in the same cases, that this court may either affirm the decree or quash the appeal. But it may be argued, that there was a manifest abuse of discretion here, because the learned judge of the common pleas sets out as a reason for setting aside the sale, gross inadequacy of price, which the law has settled, is not of itself a sufficient reason. If this were the only reason on which the decree rested, the argument of appellant would be sound; clearly, it is an abuse of discretion, when to reach a decree, the court itself overrides the established law. Substantially the same position was taken by the court below in Young’s Appeal, 2 P. & W. 380, decided in 1831, as is taken by the court below in the case before us. All the judges concurred in dismissing Young’s Appeal, because no appeal was given by the act of 1827; two of the judges, Ross and Gibson, C. J., wholly dissented from the reasons given by the court below for setting aside the salé; the other three judges declined to express an opinion, as to this part of the case, because it had not been argued. But the opinion of Ross, J., concurred in by Gibson, C. J., has ever since been followed by this court as the law, and is conceded by the learned judge of the court below to have been the law so lately as Ritter v. Getz, 161 Pa. 648. But he thinks “ the time has arrived when the hoary pretense of ‘seizing upon other circumstances ’ might safely be sent to keep company with the many other useless fictions that have been abandoned in the modern desire for a more straightforward administration of the law, and that the courts should admit that when the price is grossly inadequate, that of itself is a valid reason for setting aside a sheriff’s sale.” We do not think this statement meets the reasoning in Young’s Appeal, supra. The opinion there states: “The bona fide purchaser at a sheriff’s sale of land, the moment it is knocked off to him, if he. complies in all respects with the conditions of sale, instantly acquires a vested right to the property sold. Such a purchaser would be bound by his bargain thus made, although his bid greatly exceeded its value. And if he purchase at a bona fide sale, greatly below the value, the vendor would be bound by the sale. Equality, in this case at least, is equity.” The opinion then goes on to show that any other rule would necessarily affect sheriff’s sales very injuriously, because buyers would not attempt to purchase at such sales, when they could be set aside for mere inadequacy of price. We do not see that lapse of time has changed the rule that “ equality is equity ” into the opposite one that inequality is equity. The same reasons for adhering to all other formal solemn contracts exist where sheriffs’ contracts are regular and made under no misapprehension as to material facts. We are clearly of the opinion that the rule was founded upon the soundest reason, and should be adhered to. If the decree of the court below had for its foundation, only the reason, that inadequacy of price was sufficient to set aside the sale, we would reverse it as a palpable abuse of discretion. But it also rests upon a much sounder one; the court states, that all parties interested acted on the mistaken belief that the purchase was subject to the mortgage; this was such a mutual mistake as would in most cases relieve parties from the obligation of their contracts. Undoubtedly, courts have, in cases where the purchaser believed he bought the land discharged from the lien of a mortgage, relieved him from the obligation incurred by his bid, if he made prompt application before acknowledgment of deed. And, on the other hand, there is no reason here why this purchaser should get for MOO a property which he thought he was paying more than >¶52,400 for. This mutual misapprehension, coupled with inadequacy of price, warranted the decree, and therefore there was in fact no abuse of discretion. There being no such abuse apparent from the record or averments of appellant the appeal is quashed.

Opinion by Mr. Justice Dean, George B. Markle was indebted to his sister, Ida M. Hessenbruch, in the amount of two notes, aggregating the sum of $110,000, the notes being dated June 23,1893, payable in sixty days, with interest from July 1, 1893. On the same day, as collateral security for the debt, he delivered to his sister an assignment of one moiety of his interest in the partnership of C. B. Markle & Company, miners and shippers of coal in Luzerne county, with power to Mrs. Hessenbruch to sell said interest at public sale if default was made in payment; of the notes at maturity. George B. Markle paid neither principal nor interest on the notes up to November 4, 1893, when in the exercise of the power conferred upon her by the written assignment, after thirty days’ notice of her intention so to do, Mrs. Hessenbruch sold the collateral at public sale, and herself, indirectly, became the purchaser on a bid of $50,000. The other moiety of his interest had been assigned to Clora Markle, another sister, as security for a debt he owed to her. During the existence, previous to the assignment to Mrs. Hessenbruch, of the firm of George B. Markle & Company many dividends, payable to the partners, according to their respective interests, had been declared; that, on the George B. Markle interest had always been paid to him. After the assignment, the declared dividends upon his whole share, from October 7,1894, to July 1,1898, amounted to $107,375. Of this sum, each sister had drawn $10,937.50, leaving unpaid $85,500, one half of which, $42,750, belonged to each. George B. Markle set up, in hostility to his sister, Mrs. Hessenbruch, a claim to this money, and notified the partnership not to pay to her. Clora Markle asserted a right, not only to her own moiety, but to the one claimed by Mrs. Hessenbruch; she relied on cer tain assignments of his whole interest to to her by the brother, George, made June 5, 1896, and October 25, 1897. To avoid peril of mispayment, the partnership deposited the whole of the balance of the dividend, $85,500, with Drexel & Company, responsible bankers of Philadelphia, to be held by them until the disputed ownership of the dividends on George’s share was settled, either amicably or judicially. Mrs. Hessenbruch then filed this bill against defendants, setting out, more at length, substantially the facts as narrated, and praying that she be declared the owner of a moiety of George’s interest, and as such owner, that her right to receive the dividends on such moiety be judicially declared, and that the holders of the money be directed to pay the same to her. The answer and cross-bill of Clora Markle, in substance, averred a parol agreement between Mrs. Hessenbruch and her brother which induced the written one, by which parol agreement, Mrs. Hessenbruch promised that her brother should retain the right to receive all dividends declared on his share, and that she wonld not exercise her power tó sell prior to September 1, 1897, without the consent of the brother; that as he had not given his consent the dividends on the whole share under the subsequent assignments had passed to her. The answer of the firm and remaining partners is, that dividends had been declared out of profits from time to time, and paid over to all the partners except on George B. Markle’s interest ; but that dividends declared and payable on this last share had not been paid over, because of a controversy between Mrs. Hessenbruch and her brother as to the right thereto, and that the company is ready and willing to pay the same whenever this controversy is judicially settled. The answer of George B. Markle, in substance, makes the same statements as that of Clora Markle, though much more in detail. His defense, on the merits, is practically set out in the sixth paragraph of his answer, thus : “ 6. I deny that any dividends due and set apart to me upon the books of the said firm at the time of said sale passed by virtue thereof to the complainant as purchaser of said interest. .... I deny that by virtue of said sale the said Ida Markle Hessenbruch became and is entitled to any accounting for said interest up to the time of said sale, or since, and aver that any accounting of my interest therein vested in Clora Markle, under and by virtue of the several assignments to her, and especially under the assignment of June 5, 1896, before referred to.” He further averred that a bill in equity, prior to the one in, this case, had been filed in the court of common pleas of Luzerne county, wherein George B. Alvan and Clora Markle were plaintiffs, and the other parties named as defendants in this case, including Mrs. Hessenbruch, this plaintiff, were named as defendants, wherein the same subject matter is contested which is sought to be determined by this bill, and that the issue is now pending for decision in that court, and that therefore, this complaint should be dismissed. The issue as thus made up came on for trial in the court below; there was a patient and prolonged hearing, and a large volume of testimony taken. The learned trial judge, on both facts and law, found in favor of plaintiff. We shall not concern ourselves with a discussion of the contradictory evidence; a careful examination of it fails to satisfy us that there is any manifest error in the findings ; on the contrary, we believe they are fully warranted and are right. As to the averment of lis pendens in the answer of George B. Markle, in this case, it is purely a question of law determinable from an inspection of the records in the two causes. In equity, often, perhaps generally, it is a question of fact referable to a master to take testimony and report: but here, nothing dehors the records would shed light on the question. It is not doubted that a plea of lis pendens is a good plea in abatement to a bill in equity, but the authorities are not altogether in accord as to what is requisite to sustain the plea; a clear statement of what must be shown is given in Harrisburg v. Harrisburg City Passenger Ry., 1 Pa. Dist. Rep. 192: “A plea of former suit pending must allege that the case is the same, the parties the same, and the rights asserted and the relief prayed for the same; and where the truth of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference.” This is but a concise summary of the weight of authority on the subject. Let us determine the availability of the plea to these defendants by the test thus laid down. The bill in Luzerne county was filed August 28,1895; the one before us, May 24, 1898; the parties plaintiff in the Luzerne bill are George B. Markle, Alvan Markle and Clora Maride; the defendants, E. P. Wilbur, the executors of William Lilly, deceased, John Markle, Ida Hessenbruch and Herman Hessenbruch. Although not the same plaintiffs and defendants, the same persons are embraced in both bills; we may, therefore, with perhaps some liberality of construction, assume that the parties are the same. But, is the case the same ? This must be ascertained by comparing the averments of the two bills. The first paragraph in the Luzerne bill avers and sets out the articles of copartnership ; the second, the death of William Lilly, and the substitution of his executers as representatives of his interest; the third, that E. P. Wilbur had parted with all his interest, yet continued to act as a partner and meddle with the business at the request of the remaining defendants ; fourth, that Wilbur fraudulently and maliciously conspired with the other defendants to exclude the plaintiffs from any part or lot in the management ; fifth, that John Markle, at the formation of the partnership, as a condition to being appointed manager, agreed he would cease to act if his management did not prove satisfactory to all of the partners, yet in violation of his agreement he persisted, against the protest of plaintiffs, in holding on to his appointment ; sixth, avers in elaborate specifications his dishonesty, extravagance and general mismanagement; seventh, that still greater extravagance is contemplated in the future; eighth, because of valuable continuing leases, not assignable, irreparable loss would result if the partnership were dissolved; ninth, a general averment of conspiracy to exclude plaintiffs from any share in the management. Next, notice the prayers for relief: First, that Wilbur be restrained from taking any part in the management; second and third, that all of defendants be restrained from excluding plaintiffs from taking part in the management, and John Maride from acting as manager to their exclusion; fourth, that defendants and all their employees be restrained from, making new and extravagant improvements; fifth, that they be restained from paying out dividends without consent of plaintiffs. The remaining prayers, from sixth to tenth, inclusive, ask that defendants and the manager be directed to account for cost of improvements, coal sold, expense of mining and salaries; the eleventh and twelfth are for appointment of master and general relief. When we consider the averments of Mrs. Hessenbruch’s bill and the answers thereto, heretofore noticed, not one of them touches the subject in controversy in the Luzerne bill; the latter is a complaining and dissatisfied partner’s bill; it is not even hinted that one of defendants, Mrs. Hessenbruch, dishonestly seeks, by a pretended assignment, to'claim the share and dividends of one of her copartners; nor, is there any prayer for relief against such claim. Nor does the answer of Mrs. Hessenbruch raise any question which can move the Luzerne court to inquire into the controversy raised by the issue now before us. True, in the third paragraph of her answer she asserts that George B. Markle has assigned a moiety of his interest to her, but she asserts this, not as a defense, but by way of explanation of her weight of interest in the partnership. Mrs. Iiessenbrueh’s bill raises no question as to the honesty of John Markle, or management of the business. She avers that dividends have been declared, have been set apart and deposited with a stakeholder for the proper owner of George’s share; she asks for no accounting; as to whether too much or too little she makes no suggestion; even George does not aver in his answer that at least this amount of money deposited is not payable to the real owner of his interest; he only avers that he is still the owner. We are of opinion, with the court below, that the cases are not the same; that the rights asserted and the relief prayed for are not the same ; therefore, that the plea of a former action pending is not sustained. The argument of the learned counsel for appellant, that all that passed by the assignment to Mrs. Hessenbruch was a mere right to an account, an intangible thing, which she must assert by bill against the partners for an account, is without merit. Such a plea, if sound, could only be raised by the partnership; if the assignment was good, as the court below has found, George B. Markle has no further interest in the moiety assigned; how his assignee shall enforce her right under the assignment, if the partnership denies it, is no concern of his. The partnership acknowledges it, and is ready to pay the dividends declared upon it to the proper owner; indeed, under the first paragraph of the partnership agreement, they could not well do otherwise. The appeal is dismissed afc costs of appellant, and the decree of the court below is affirmed.

Opinion by Mr. Justice Frazer, The City of Philadelphia contracted with Daniel J. McNichol for work on a filtration plant, under which contract McNichol was to furnish materials, tools, machinery and equipment for the execution of the work at the Torresdale Intake. McNichol later entered into a contract with plaintiffs by which the latter were to furnish the labor and materials in the construction of a coffer dam required in the prosecution of the work, and to furnish all tools, implements and machinery necessary for that purpose. Plaintiffs began work in 1905 and continued until June 16th of that year, when they were ordered to stop by reason of trouble between the city and McNichol in the prosecution of the work under the latter’s contract. Plaintiffs then attempted to remove their tools and machinery and were prevented from doing so by officers of the city who were in charge of the work, and who contended that the property was vested in the city under the terms of its contract with McNichol. On March 18, 1906, following both oral and written negotiations between plaintiffs and the city, plaintiffs wrote the chief of the Bureau of Filtration stating that the tools and machinery belonged to them and were not the property of McNichol and that they were needed in plaintiffs’ business. This communication was not answered, and defendant persisted in its refusal to permit the tools and machinery to be removed. On April 10, 1906, a writ of replevin was issued by plaintiffs, and on May 8th an agreement of counsel was filed, under which plaintiffs were to receive the property from the sheriff and retain possession under the replevin bond filed by them. Plaintiffs claim damages for loss incident to the detention of the property from June 16, 1905, to May 8, 1906, the date on which they were given possession. Plaintiffs’ original statement places the value of the property at $4,400.00, which is based on its cost to them. In the amended statement filed, the value is increased to $6,595.84. Mr. Lattá, one of the plaintiffs, testified that the articles were in first-class condition and could he bought for $6,500. Since the property was actually delivered to plaintiffs, this item is eliminated as a measure of damage and is referred to only because of its bearing on the measure of damages for the period of dentention, which the jury fixed at $13,774.00, with $604.34 added as compensation for delay in payment, making a total of $14,378.34. Defendants have laid particular stress in their argument on the contention that the property passed to them under the principal contract by which the contractor was to furnish all items required for the completion of the work, including machinery, tools, materials, etc., claiming that these articles became the property of the city upon the completion of the work and that therefore plaintiffs had no right or title therein as their right could rise no higher than that of the principal contractor. This question, as far as the record shows, was not raised in the lower court, but appears to have been an afterthought and is raised for the first time on this appeal. The charge of the court contains nothing to indicate that there was before it any disputed question of ownership of the property and the necessity of submitting such question to the jury was not suggested by counsel, nor was there any contention, as far as the record shows, that, as a matter of law under the contract, plaintiffs were not entitled to recover. It is a well established rule that the appellate court will not review a case on a theory different from that upon which it was tried by the court below, nor will it consider questions which were not raised in the lower court, but were argued for. the first time on appeal. For this reason the question of ownership of the property might well be treated as settled by the acts of the parties as being in plaintiffs; however, as this case must go back for another trial, we deem it proper to state that the ownership of the property in dispute under proper interpretation of the pro visions of the contract was in plaintiffs and should be so treated by the parties. It is argued by defendant that it is not liable for the acts of its officers and agents in seizing the properly, for the reason that at the time there was no work being done, and therefore any wrongful act committed with reference to the property of plaintiffs was an act by the servants of the city without authority and not in the course of the performance of any duty incident to their office or employment, and that the responsibility for their acts must rest on their own shoulders, and to them plaintiffs must look for redress. When a municipal corporation undertakes to construct and operate a filtration plant for the purpose of supplying water to its inhabitants, it is exercising a business, as distinguished from a governmental function and the maxim respondeat superior applies to the acts of its officers and agents in exercising such function: Philadelphia v. Gilmartin, 71 Pa. 140; Bodge v. Philadelphia, 167 Pa. 492; Harrisburg v. Saylor, 87 Pa. 216; Morgan v. Duquesne Boro., 29 Pa. Superior Ct. 100. Nor is it material that the actual work on the contract had been suspended. The officers and employees, who had charge of the department under which this particular work was done, were acting as much for the city in refusing to surrender the property as in doing any other act incident to the work. It appears they acted in good faith, and for the purpose of serving the city, by holding what they believed to be the property of the city. While a city can act only through its officers, upon one of its officers necessarily devolved the duty of determining whether the municipality owned the property in dispute, and, if so, it was the duty of that officer to see that its rights were enforced. The question was one which arose immediately in connection with the performance of the work contracted for, and was as much within the scope of the duty of the representatives of the municipality as any other matter connected with the enforce- meat of the terms of the contract: Philadelphia v. Gilmartin, supra. The question of the measure of damages 'is a more difficult one. The general rule in an action of replevin, where the plaintiff has finally secured possession of the property, is that he may recover damages for detention and any costs incident thereto: Cobbey on Replevin, Sec. 853; Fisher v. Whoolery, 25 Pa. 197; Duroth Mfg. Co. v. Cauffiel, 243 Pa. 24. These damages are usually measured by interest and depreciation in value: Cobbey on Replevin, Sec. 877; McDonald v. Scaife, 11 Pa. 381; Duroth Mfg. Co. v. Cauffiel, 243 Pa. 24; Cox v. Burdett, 23 Pa. Superior Ct. 346; Allen v. Fox, 51 N. Y. 562. Exemplary damages may also be allowed in cases where there have been particular circumstances of fraud, oppression, or wrong in the taking or the detention of the property: McDonald v. Scaife, 11 Pa. 381; Wiley v. McGrath, 194 Pa. 498. There being no evidence in this case to support a claim for such damages the only question is as to the proper measure to compensate plaintiffs for the injuries sustained. When property is capable of such physical use and enjoyment as cannot be compensated by allowance of interest, it is necessary to consider the value of such use. Thus where the property detained consists of horses, tools, implements of trade, etc., the general rule is that the party deprived of possession is entitled to the reasonable value of the use during the period of wrongful detention: Cobbey on Replevin, Sec. 887, 889, and cases cited. The general theory and básis of this rule is well stated by the Supreme Court of New York in Allen v. Fox, 51 N. Y. 562, which was an action to recover possession of a horse. Title was found to be in defendant, who gave evidence óf the value of the use of the horse during the period plaintiff had it in his possession under the writ. This evidence was admitted under objection. The jury found the value of the horse to be $175 and the value of its use $75. In affirming the judgment the Supreme Court said: ■ “In the action of replevin, the plaintiff seeks to recover the property, and is, in all stages of the case to final judgment, in pursuit of that, and not its value. And during the whole time the defendant may have the possession and the use (if it can be used) of his property. At the termination of the suit it is not optional with him to take the property or its value. If the defendant has the property, and will permit him to take it, he is obliged to take it (Code Sec. 277; Dwight v. Enos & Janes, 9 N. Y. 470; Fitzhugh v. Wiman, 9 N. Y. 559). Hence the plaintiff cannot always be expected or required, in such cases, to go into the market and supply himself with the same kind of property at its market value. Suppose the controversy be about a canal boat or a carriage, or an expensive machine. If the plaintiff should go into the market and buy another, at the end of the litigation, in case of success, he would have on hand duplicates of the article, and would thus be subjected to further loss and inconvenience.......What should be the measure of damages for the detention? In many cases interest on- the value from the time of the wrongful- taking would be a proper measure. It would be generally in all cases where the property detained was merchandise kept for sale, grain and all other articles Or property useful only for sale or consumption. In such cases, if the owner recover the interest on the. value of his property from the time he was deprived of it, he will generally have a complete indemnity unless the property has depreciated in value, in which case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of the damage. This damage, together with the property or its value at the time of the trial, will give the owner as complete indemnity as .the law is generally able to give any person seeking redress for a wrong. But the same measure of damages would not. generally furnish the owner an indemnity in case the property claimed had a value for use, or, in other words, a usable value, such as horses, cows, carriages and boats. In such case the direct damage which the owner suffers is the loss of the use, and the value of the use should be the measure of damage.” In determining the value of the use under the above rule, care should be taken not to permit the fixing of an amount out of all proportion to the value of the thing itself; otherwise the. result is not compensation for use but punishment for a wrong, in a case where exemplary damages, as such, would not be allowed. Plaintiffs at the trial submitted a written calculation of damages, consisting of the rental value of the machinery from June 16, 1905, to April 12, 1906, the time during which defendant had possession and refused to turn it over to plaintiffs, by reason of which plaintiffs were deprived of its use. The calculation shows a claim amounting to $13,774.00 for the usé of the machinery for a period less than one year. This estimate, according to the testimony in the case, is more than twice the price at which the property could be replaced. If the true measure of damage is., such amount as- will compensate plaintiff for the loss sustained, the .damages given.in the present case are grossly in excess of such measure. JJ!ór instance, it would have been extremely profitable for., plaintiffs if defendant had retained the machinery indefinitely, as plaintiffs would have obtained sufficient compensation each year from .the rental-value to .purchase two or more entire new. plants. This amount of damage shows on its face that there is something radically wrong in the method of calculation, if compensation , is. to be taken as the proper measure: Brunell v. Cook, 13 Mont. 497; Romberg v. Hughes, 18 Neb. 579. .. In' the charge of the court, the plaintiffs’ second point, to the.effect .that damages should be allowed for detention measured by the ordinary market or rental value of the..use.of the.property during the period of detention, was-affirmed: If defendant had actually made use of .thé property, there would naturally have been some depreciation in its value because of such use, and, when plaintiffs received possession, they would take it subject to this depreciation, for which they would be compensated in rental value. They could not recover both. There is here no evidence of the ordinary amount of depreciation by use, but in view of the fact that the rental value was so high in proportion to the amount of money invested, the depreciation, from a business point of view, must be considerable. If defendant did not use the property, the deterioration which it would have suffered by use must be deducted from the value of the use: Brunell v. Cook, 13 Mont. 497; Peerless Machinery Co. v. Gates, 61 Minn. 124; White v. Sheffield & Tuscumbia St. Ry. Co., 90 Ala. 253; and the jury should have been so instructed. They should also have been instructed to take into consideration the fact that plaintiffs might not have been able either to use or rent the tools and machinery continuously during the eleven months, and, if they so found, this fact would also materially reduce the measure of damages. The amount of damages for detention should also bear some reasonable proportion to the value of the goods: Romberg v. Hughes, 18 Neb. 579; in the absence of evidence of extraordinary conditions or circumstances tending to enhance the damages above ordinary results: Brunell v. Cook, 13 Mont. 497. There was no error in the allowance of the amendment, even though the statute of limitations had run at the time it was made. It is true that the amended statement claims for an additional item of damage, to wit, the wrongful detention of the property, and alleges that, by reason thereof, plaintiffs lost the rental value to the extent of $18,000.00. In the original statement there was no claim for loss of the use of the machinery and tools, but only for the tools themselves. The criterion adopted for determining whether or not an amendment is within the statute of limitations, is whether the cause of action has been changed: Rochester Boro. v. Kennedy, 229 Pa. 251. The cause of action in both the original and amended statements is the wrongful taking and detention of the property. In the amended statement there is no departure from this cause of action, but merely an additional claim of damages because of the detention of the property. It is well settled law that an amendment which merely introduces an additional element of damage drawn out of the same circumstances may be allowed at any time, as it does not introduce a new cause of action: Tassey v. Church, 4 W. & S. 141; Puritan Coal Mining Co. v. Penna. R. R. Co., 237 Pa. 420; Jackson v. Gunton, 26 Pa. Superior Ct. 203. The trial judge charged that if plaintiffs were entitled to damages for detention of their property, they were also entitled to additional damage for delay in payment, not exceeding six per cent. In the original statement filed, no claim is made for damages for detention, nor was any such claim made until nearly seven years later, during which time plaintiffs were in possession of the property and failed to prosecute their claim for damages. Plaintiffs themselves were apparently in doubt as to their right to recover damages for the detention, and after waiting over six years without asserting their rights by prosecuting their claim to judgment, they are not now in a position to ask compensation for delay in payment. There was no error in permitting plaintiffs to send out with the jury a calculation of the items of damage claimed. This is within the discretion of the court and is proper so long as the paper contains no items not supported by evidence and the jury are instructed that the calculations are not evidence but are merely to be used as an aid to their own calculations: Person & Riegel Co. v. Lipps, 219 Pa. 99; Anderson v. Snyder, 14 Pa. Super. Ct. 424. This was done in the present case. On a new trial, however, such calculations, if submitted, should be governed by the measure of damages outlined in this opinion. Judgment reversed and a venire facias de novo awarded.

Opinion by Mr. Justice Walling, This is an appeal by the claimant from an order striking off a mechanic’s lien. The owner, Richard L. Wallace, on June 21,1917, entered into a written agreement with the claimant, William E. S. Dyer, a mill engineer and architect, by which the latter was to prepare plans and supervise the construction of a wool scouring plant on a tract of land at Eighty-first street and Bartram avenue, Philadelphia. The plant was to embrace two warehouses, a power house, a steam piping system and other structures and equipment. The contract states that, “As compensation in full for services to be rendered by him the said Dyer shall be paid a commission of ten per cent of the total cost of the building construction and equipment.” On May 13, 1918, Mr. Dyer filed the lien here in question setting forth a copy of the contract and claiming $18,134.88, made up of items in the attached schedule. The lien sets forth, inter alia, “The said claimant......supervised the construction of the buildings erected and the installation of the machinery placed therein. The said claimant entered upon the performance of the said services on June 21, 1917, and was continuously engaged in the performance thereof from said date until the filing of this lien when the said Richard L. Wallace refused to permit the said claimant to continue the supervision of the unfinished portion of said work, in violation of the terms of the aforesaid contract. The lot of ground On which the several buildings hereinafter inore particularly described are erected, in course of erection, or at the time the services rendered were intended to be erected, to be used as hereinbefore stated together as one plant, is described as follows.” This is followed by a description of the buildings erected thereon, which states, inter alia: “The steam piping system extends from the boiler house to the several buildings which said system is now being in process of construction,” and, referring to warehouse No. 2, states: “The building to be erected in accordance with the plans and specifications prepared by the claimant.......was to be constructed of brick and timber similar to warehouse No. 1.” The schedule or bill of particulars is indefinite; while it purports to be, “In account with Richard L. Wallace & Company,” the claimant’s name does not appear therein. It mentions ten per cent commission and computes it on forty-four items, in two groups; above them appears the only date, “September 7, 1917.” The four largest items are stated thus, “No. 1 Warehouse...... Henry E. Baton, $44,000; Power House, $15,363.87; No. 2 Warehouse Bid, $74,137; Piping System, $13,371.” The other items are equally and in some instances more indefinite. The claim includes some small items, amounting to $58.76, for alleged services and expenses, aside from the contract, for which there seems to be no. justification and which we will not discuss. The amount of the claim as above stated is the balance after deducting credits of $4,717.50. The requisites of a claim under the Act of April 17, 1905, P. L. 172, are in the main similar to those under the Act of 1836; so decisions under the earlier statute are still applicable. We will state some principles and authorities which seem to bear upon the case. A mechanic’s lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity: Tenth Nat. Bank v. Smith Const. Co. (No. 1), 218 Pa. 581. It must state facts and not depend on inferences: Wharton v. Real Est. Investment Co. of Phila., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Rush v. Able, 90 Pa. 153, 160. A bill of particulars filed with the claim becomes a part of it: Am. Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520; Schultz v. Sarver, 3 Penny. 411; and a rule to strike off a mechanic’s lien must be determined by the record: Burger v. S. R. Moss Cigar Co., 225 Pa. 400; Mesta Machine Co. v. Dunbar Furnace Co., 250 Pa. 472; Hiestand v. Keath, 229 Pa. 149. The lien must set forth the amount or sum claimed to be due: Act of April 17, 1905, P. L. 172; Burrows v. Carson, 244 Pa. 6, 12; and so stated as to form the basis for a liquidation of judgment. It must contain at least one valid item: McCristal v. Cochran, 147 Pa. 225; Mercer M. & L. Co. v. Kreaps, 18 Pa. Superior Ct. 1. The services of an architect in preparing plans cannot be made the subject of a mechanic’s lien (The Bank of Pennsylvania v. Gries, 35 Pa. 423; Price v. Kirk, 90 Pa. 47), except in connection with other services, rendered in the construction of the building: Trickett’s Law of Liens in Penna., vol. 1, sec. 9; Johnson’s Law of Mechanics’ Liens in Penna., p. 173. A construction of the Act of June 4, 1901, P. L. 431, that would extend its benefits to an architect, merely for preparing plans, would render it invalid as a special law for the extension of liens, or as changing the method for the collection of debts, in contravention of Section 7 of Article III of the Constitution of 1874; see Sax v. School District, 237 Pa. 68; Page v. Carr, 232 Pa. 371; Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382. A mechanic’s lien can be sustained only for work done or materials furnished and not for unliquidated damages for breach of contract: Deeds v. Imperial Brick Co., 219 Pa. 579. There, Mr. Justice Stewakt, in delivering the opinion of the court, says (p. 582), “By no sort of construction can a mechanic’s lien be made to embrace anything, whether labor or material, not actually furnished. Plaintiffs had a right to subject the building to a lien for the work they did upon and about its erection and construction; but a claim for anything beyond necessarily sounded in damages, and these can never be made the subject of a mechanic’s lien”; and see Stephens & Co. v. Campbell et al., 13 Pa. Superior Ct. 7. In each of those cases as here the claimant sought to embrace in his lien a claim for damages for breach of contract. In the present case appellant was discharged during the building operation, when work on some of the structures had not begun, while others were in process of construction and some possibly finished. According to the contract his commission was to be on the total cost of the building construction and equipment; but he fails to aver the total cost or in fact the cost of any part of it. Certain items are stated, but no averment that they represent the total cost or the actual cost of the respective structures. As the lien was filed when the plant was but partially constructed, its total cost could not then be known. This clearly appears in the largest item, “No. 2 Warehouse Bid, $74,137.” That does not show the cost of the building, and nothing had been done towards its construction, yet $7,413.70 of this claim is based upon it. This lien could be sustained only for work actually performed and the amount of that is not stated; admittedly but part of the entire work was done and we do not know what part as it blends the claim for work done with that for work not done, and, hence, cannot be sustained. Appellant might have filed a lien against the plant for the value of the work actually done (Linden Steel Co. v. Rough Run Mfg. Co., 158 Pa. 238; Safe Deposit Co. v. Columbia Iron & Steel Co., 176 Pa. 536; East Stroudsburg Lumber Co.’s App., 1 Pa. Superior Ct. 261), coupled with an averment that full performance of the contract on his part had been prevented by the owner; but what he seemingly attempted to do was to claim for a full performance while admitting that it had not been done. In assumpsit he might claim for work done and damages for breach of contract, but a mechanic’s lien cannot be sustained for the latter. The most specific item is the one first above quoted, viz: “No. 1 Warehouse — Henry E. Baton, $44,000”; which, it is suggested, is sufficiently specific; but it is not averred that Henry E. Baton was the contractor for that building or that the sum stated was its cost. Such conclusion must be reached if at all by inference and not from averment. Neither do we agree with the suggestion that the averments as to the machinery placed in the power house are sufficient; for example, take the largest of those items, stated in the bill of particulars as, “Permutit Company......$6,570.00”; there is no averment that this sum was the cost of or connected with the Permutit Water Softener equipment mentioned in the body of the claim; and placing it in the bill of particulars in a separate group of items from the power house adds to the uncertainty. The lien cannot be sustained as a claim for work actually done, independent of the contract, as there is no averment of the value of such work. While some averments standing alone might be sufficient yet we should consider the claim as a whole; for example, there is a general statement to the effect that claimant performed the contract on his part, but followed by a specific statement that he was discharged during the progress of the work and prevented from completing it, and we cannot ignore the latter averment. We are considering the lien as if filed by a contractor and not by a subcontractor. Error is also assigned to the order of the court below refusing to allow an amendment of the mechanic’s lien in question. Section 51 of the Act of June 4, 1901, P. L. 454, 3 Purdon’s Digest (13th Ed.), p. 2504, provides that the claim, etc., “may be amended......upon petition for that purpose under oath or affirmation setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake they were omitted from or wrongfully stated in the particulars as to which the amendment is desired.” The appellant’s only averment in his affidavit to the petition for leave to amend is, “that the averments in the foregoing petition contained are true as he verily believes,” and the petition makes no allegation of any mistake in the original claim. As the affidavit fails to state that the averments in the petition are true in fact, or that there was any mistake in the original claim, the amendment was properly refused. The assignments of error are overruled and the orders appealed from are affirmed.

Opinion by Mr. Justice Walling, Plaintiff’s husband, John J. Watkins, was working nights for the Pittsburgh Coal Company, defendant, at a. mine and while his main work was in the boiler house his duty also required him each night to go down into the mine pit and look after the pumps. To do so he passed down a flight of twelve steps and thence over a level space, traversed by two railroad tracks, to a stairway leading down some eighty feet to the pumps, where he was usually occupied about an hour and a half. On the evening of March 31,1920, he went to work as usual and about ten o’clock descended into the mine, but did not return, and early the next morning his dead body was found lying near the foot of the twelve steps, between a wall and the first railroad track, with a small cut on his forehead and a slight bruise or scratch on one cheek. No autopsy was held, but a doctor who saw the body and talked with other employees, gave the opinion that death had resulted from acute dilatation of the heart, superinduced by exertion in climbing up the stairs from the mine pit. Mr. Watkins was forty-eight years of age, in fair health* and not, so far as known, afflicted with heart trouble or any other ailment likely to cause sudden death. The evidence was conflicting as to whether he had recently had an attack of influenza. The referee found as a fact that the deceased met his death as the result of an accident sustained in the course of his employment and awarded compensation to the widow and children, which was affirmed by the compensation board and court of common pleas, followed by this appeal on behalf of the defendant. Appellant’s sole contention is that there is no evidence to sustain the finding of accidental death. In this class of cases our revisory powers are limited to such consideration of the record as will enable us to ascertain whether there is evidence to support the findings and, if so, whether the law has been properly applied: Kuca v. Lehigh Valley Coal Co., 268 Pa. 163; Stahl v. Watson Coal Co., 268 Pa. 452. Assuming the accuracy of the doctor’s opinion, the finding of the referee is warranted, for we have held that death resulting from a strain upon the heart caused by overlifting is an accident (Tracey v. Phila. & Reading C. & I. Co., 270 Pa. 65) and it is no less so when caused by overexertion in climbing eighty feet up a stairway. That an extra strain upon the heart may cause death is undoubted and the fact that at other times the deceased had climbed the stairs uninjured is not conclusive that he did so on this occasion. The award here in question finds support in other decisions of this court, for we have held that death resulting from the rupture of a blood vessel by an extra effort in vomiting (Clark v. Lehigh Valley C. Co., 264 Pa. 529), or from heat prostration (Lane v. Horn & Hardart B. Co., 261 Pa. 329), or from dilatation of the heart caused by an anaesthetic (Hornetz v. Phila. & Read. C. & I. Co., 277 Pa. 40), or from pneumonia caused by lifting a piano (Wolford v. Geisel M. & S. Co., 262 Pa. 454), is an accident within the meaning of the workmen’s compensation statutes. True, the sudden death of an employee while doing work, which calls for no unusual physical strain, raises no presumption of an accident (Lesko v. Lehigh Valley Coal Company, 270 Pa. 15), but this rule cannot be invoked where duty requires the performance of an act causing a fatal strain to a vital organ. A claimant is required to show the death was accidental, but not the precise nature of the accident: Laraio v. Pennsylvania Railroad Co., 277 Pa. 382; Zelazny v. Seneca Coal Mining Co. et al., 275 Pa. 397. It clearly appears the deceased sustained a fall, and this may have caused death by á brain lesion or some other injury; so, in addition to the question of heart strain, the circumstances tend to support the finding of an accidental death. The judgment is affirmed.

Opinion by Mr. Justice Schaffer, This controversy grows out of the same sheriff’s sale as the preceding case (Pennsylvania Chocolate Co. to use of Commonwealth Trust Co. v. Eatmor Chocolate Co.). Here we have to do with the claim of Eline’s, Inc. to certain machinery which it had sold to Eatmor Chocolate Company under a conditional sale contract. Its right thereto was denied by the Commonwealth Trust Company, holder of the mortgage on the plant of the chocolate company and purchaser at the sale, and by the receivers of the chocolate company. The court below awarded the machines to the conditional vendor. The trust company appeals. The conditional sale agreement is dated December 19, 1930. It covered certain candy making machinery, consisting of enrobers for chocolate coating candies, a mogul machine for casting candy centers, a plow machine for drying milk paste for chocolate, copper kettles, marshmallow beaters, conveyors and trucks, together with other appurtenant equipment. The machines constitute the major portion of the candy department of the chocolate company and, since installation, have been used in the manufacture of about half of the total output. The machines cover considerable space and are located on the second and fourth floors of the building. Some of this equipment extends from one building to another through a wall. Parts of it are quite heavy, the plow machine weighing 16,000 pounds. The heavy machinery is kept rigid by its own weight. The lighter portions are bolted to the floor. It is connected with the water, gas, steam and electric lines of the plant. The trucks and trays are used for the transportation of materials and are a necessary part of the manufacturing process. If the machines should be removed, the building itself could be repaired at an expense of about $125. The trust company had no notice or knowledge that the machines had been installed in the plant until the filing of the petition to reclaim. In its answer to the petition the trust company set forth that the machinery and equipment claimed were installed for permanent use as a necessary part of the manufacturing plant and could not lawfully be removed as against the prior mortgage. It was also alleged that Eline’s, Inc., had failed to comply with the requirements of the Conditional Sales Act of May 12, 1925, P. L. 603, as amended, 69 P. S. section 361, et seq., in that the conditional sale agreement had not been filed within ten days after the making thereof, or refiled within thirty days prior to the expiration of three years thereafter, and in that the vendors had failed to sign a description of the real estate in which the subject of the sale was to be attached. The court below decided that the machinery and equipment in question were severable from the freehold without material injury thereto, because the building itself, after the removal, could be repaired at a small cost. It overruled the contention of appellant that the words “realty” and “freehold” in the act, in the case of a manufacturing plant, mean every necessary part of it, including all its machinery and equipment, and that therefore the removal of a part would constitute a material and irreparable injury. It also held that, inasmuch as there would be no material injury to the freehold as defined, the conditional sale contract was not within the provi sions of section 7 of the Conditional Sales Act, and that appellant, as prior mortgagee, had no standing to complain of the failure to comply with the filing requirements of the statute. We think that the lower court’s view of what is included in the terms “realty” and “freehold” as used in the act is too restricted, and the fact that the machinery can be removed without material injury to the building, not the controlling consideration. In this connection the court said the words used in the act “severable without material injury to the freehold” have reference to injury to the physical structure of the building. We think they imply much more, that the word “freehold” as used in the act embraces the entire operating plant and is used as Chief Justice Gibson used it in Voorhis v. Freeman, 2 W. & S. 116, when he said: “Whether fast or loose,......all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold.” In the preceding case the court below found, and we have adopted its finding, that “as the entire plant is now constituted, all of the machinery and equipment which have been installed therein since 1925 is indispensable to operations presently conducted.” In Commonwealth Trust Co. v. Harkins, 312 Pa. 402, in which we considered all onr preceding cases bearing on the question we are now reviewing, whether cited or not, we laid down the broad principle that all machinery in a manufacturing plant, necessary for its operation as a complete going concern, is part of the freehold and bound by the lien of a mortgage thereon, and that it matters not when the machinery is installed, whether before or after the giving of the mortgage. The background for the principle there reaffirmed is found in the vigorous language of the great Chief Justice in Voorhis v. Freeman, part pf which it may be well to quote again. Backing away from a previous decision, he says (page 117) : “It is true we ruled, in an unreported case (Chaffee v. Stewart), that the spindles and other unattached machinery in a cotton mill, were personal property for the purpose of execution, on the authority of certain decisions to that effect, because we were indisposed to be wise above what is written; but an examination of their foundation would probably have led us to a different conclusion. It is unnecessary to pass the learning of the subject in review, as a clear bird’s-eye view of it has been spread before the profession by Mr. Justice Cowen in Walker v. Sherman (20 Wend. 636), from which it is evident that no distinctive principle pervades the cases universally, and that the simple criterion of physical attachment is so limited in its range, and so productive of contradiction even in regard to fixtures in dwellings to which it was adapted before England had become a manufacturing country, that it will answer for nothing else. My objection to the conclusion drawn from it in that case, is that the court adhered to the old distinction when the question related to a woolen factory, instead of following out the principle started by Mr. Justice Weston in Farrar v. Stack-hole, (6 Greenleaf 157), which must, sooner or later, rule every case of the sort. The courts will be drawn to it by its liberality and fitness, while they will be drawn away from the old criterion by its narrowness and want of adaptation to the business and improvements of the age. By the mere force of habit, they have adhered to it in almost all cases after it has ceased to be a guide in any but a few; for nothing but a passive regard for old notions could have led them to treat machinery as personal property when it was palpably an integrant part of a manufactory or a mill, merely because it might be unscrewed or unstrapped, taken to pieces, and removed without injury to the building. It would be difficult to point out any sort of machinery, however complex in its structure, or by what means soever held in its place, which might not with care and trouble be taken to pieces and removed in the same way, and the greater or less facility with which it could be done would be too vague a thing to serve for a test. It would allow the stones, hoppers, bolts, meal-chests, skreens, scales, weights, elevators, hopper-boys, and running gears of a grist mill, as well as the hammers and bellows of a forge, and parts of many other buildings erected for manufactories, to be put into the class of personal property, when it would be palpably absurd to consider them such......A cotten-spinner, for instance, whose capital is chiefly invested in loose machinery, might be suddenly broken up in the midst of a thriving business, by suffering a creditor to gut his mill of everything which happened not to be spiked and riveted to the walls, and sell its bowels not only separately but piecemeal. A creditor might as well be allowed to sell the works of a clock, wheel by wheel......The bare walls of a building would be comparatively of little value. They might perhaps answer the purposes of a barn; but so might the walls of a dwelling, when deprived of their doors and windows, and why are these considered a part of a dwelling? Simply because it would be unfit for the purpose of a dwelling without them. What, then, is demanded in the case of a building erected for a manufactory, but an application of the same principle? Whether fast or loose, therefore, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold.” It was accordingly held that the rolls of an iron mill passed as a part of the freehold under the mortgage on the mill and the subsequent sale in execution thereof. If a party makes a chattel a permanent part of a manufacturing plant, such chattel by force of law becomes a part of the real estate and of the freehold. In Clayton v. Lienhard, 312 Pa. 433, an automatic sprinkler system was installed in a large public garage, under a bailment lease agreement, in which it was stipulated that the system should not become a fixture or part of the real estate, but should remain the personal property of the lessor until determination of the lease and acceptance by the lessee of the option to purchase. We there said, speaking through Mr. Justice Drew (page 436) : “The equipment was of a permanent character, and from its nature, use and affixation became a part of the freehold......We should ignore stubborn physical facts and settled legal principles were we to regard this apparatus as not a part of the realty...... [page 438 et seq.] Since, as we have seen, the apparatus did become a part of the realty, the provision in the contract that it should remain personal property was of no effect......‘Contract cannot make a chattel realty, nor realty a chattel.’ ...... All fixtures, whilst attached to the freehold, are, for the time being, a part of the realty. No contract can change their nature......But a contract that something may be converted into personalty at a future day, does not make it so from the time of the contract......‘We nullify stubborn fact here if we consider the machinery anything but real estate in fact. The plain actuality is, not that it remained personal property, but only that the vendor had the contract right by severance to retake it and so “reconvert it into personalty.” The conditional sales contracts did not......pre serve “the status of the machinery as personal property until fully paid for.” ’ ” In Bullock Elec. Mfg. Co. v. Lehigh Valley Trac. Co., 231 Pa. 129, the traction company purchased generators on a conditional sale agreement and attached them to a power plant on which there was an existing mortgage. The mortgage was foreclosed and the property described therein, together with the generators, was sold. The conditional sale vendor of the generators brought suit in replevin but was denied recovery because the generators “became part of the realty, and as such were subject to the lien of the mortgage.” In American Laundry Machinery Co. v. Miners Trust Co., 307 Pa. 395, which was decided by us Per Curiam, laundry machinery was furnished under bailment leases, and the broad question here presented was not passed upon. The point in issue, whether the machinery was personal or real property, was decided solely on the intention of the parties when it was installed. This is not the controlling factor in the present case. If the machinery here involved can be taken away from the plant and from the lien of the mortgage, then it is possible to remove what may be said to be the very heart of the plant, so far as the manufacture of candies and confections is concerned, machinery which produces almost one-half of its capacity. Were we to so hold, then through the means of conditional sales agreements the integrity of manufacturing establishments can be completely destroyed, and mortgagees who had loaned their money on the faith of what they purported to be, manufacturing concerns, capable of producing the kind of materials for which they were designed, will find themselves confronted with an empty shell or a scrap heap as their security, in cases where machinery has been installed under such contracts after a mortgage is given, and when the mortgagee has no way in which he can protect himself, as he is not a party to the contracts. Our holding as we do now can work no hardship on conditional sellers. Before they make delivery of their property to a purchaser whose plant is hound by a mortgage, all they need do to protect themselves, is to get the assent of the mortgagee to the removal of the articles in the event of default by the purchaser in his payments. Holt v. Henley, 232 U. S. 637, and Detroit Steel Cooperage Co. v. Sisterville Brewing Co., 233 U. S. 715, cited by appellee, indicate that the Supreme Court of the United States has taken a view of controversies similar to the one in hand somewhat different from our own. These cases are not binding upon us and we think it the part of wisdom, considering the industrial situation in this Commonwealth, to adhere to the principles which have heretofore guided our decisions. To give to the language used the meaning for which appellee contends and to which the court below assented would be to change our common law and “a change from the common law cannot be presumed; it must appear to have been meant, or it will be held not to have been made”: Jessup & Moore Paper Co. v. Bryant Paper Co., 283 Pa. 434, 444; Merrick v. DuPont, 285 Pa. 368; March v. Phila. & West Chester Traction Co., 285 Pa. 413, 415. We, therefore, hold that the words “realty” and “freehold” in the act mean the plant in its complete integrity, and that the words “material injury to the freehold,” mean material injury to the operating plant and are not confined to injury to the physical structure of the building alone. In view of the decision on the main question, others raised drop out of consideration. The order of the court below is reversed at appellee’s cost, and the machinery in question is awarded to the Commonwealth Trust Company. The section of the act provides (69 P. S., section 404): “As against an owner, a prior mortgagee, or other prior encumbrancer of the realty, who has not assented to the reservation of property in the goods, if any of the goods are so attached to the realty as not to be severable without material injury to the freehold, the reservation of property in the goods so attached shall be void, notwithstanding the filing of the contract or a copy thereof, unless such injury, although material, be such as can be completely repaired, and the seller, before retaking such goods, furnishes or tenders to such owner, prior mortgagee, or encumbrancer, a good and sufficient bond conditioned for the immediate making of such repairs. ‘Prior,’ as used in this paragraph, refers to the time of attaching the chattels to the realty,”

Opinion by Mr. Justice Beul, Sowers died testate on April 28,1923 leaving a wife, Minnie E. Sowers who died on November 30, 1924 without re-marrying, and three children, John E. Sowers, Marmaduke Sowers and Catherine E. Sowers, as well as an adopted daughter, Josephine R. Sowers who was the daughter of testator’s daughter, Rebecca, who predeceased testator. Neither Rebecca nor her son, John A. Gernert, Jr., who is claiming under a class gift in the eighth paragraph of Sowers’ will, were named in or specifically bequeathed anything by testator’s will. Josephine R. Sowers died on January 24, 1952, without issue. For undisclosed reasons, the executor filed his first account on September 18, 1952. Testator in the fifth paragraph of his will left his residuary estate “in trust nevertheless, for the uses, persons and purposes . . . “. . . to pay said net income to the following persons and in the following proportions, viz.: “In trust to pay over one-third of said net income, in semi-annual payments, unto my beloved wife, Minne E., during her natural life or so long as she remains my widow; in trust to pay over the remaining two-thirds part of said net income, in semi-annual payments, unto my children, John E. Sowers, Marmaduke Sowers, Catherine E. Sowers and my adopted daughter Josephine R. Sowers, in equal shares, share and share alike, during their life time. “In trust, in case of the re-marriage of my said wife, to pay over her said one-third part of such net income unto my children, John E. Sowers, Marmaduke Sowers, Catherine E. Sowers and my adopted daughter, Josephine R. Sowers, in equal shares, share and share alike, during their Ufe time. “In trust upon the death of my said children, including my adopted child, as each one shall be deceased to pay over to the lawful issue of such child or children the full part of the principal fund of which the deceased parent was receiving the income, in equal shares, share and share alike; and further, in case any child shall die before the death or re-marriage of my said beloved wife, Minne E., then upon such death or re-marriage, to pay over to the lawful issue of such deceased child or children, including issue of my adopted child, the full one-fourth part of one-third of said principal fund from which my said beloved wife was receiving the income as herein provided.” It is obvious that the will was unskillfully drawn in two important contingencies — it expressly provided what testator wished to happen to the one-third part of the net income which was payable to his wife, in case of the re-marriage of his wife, but (a) it does not expressly provide what testator wished to happen to saicl income in the event of his wife’s death and (b) consequently to the one-third part of the principal from which she was receiving the income, except — and this is a very important exception — namely, if one of his children died before his wife’s death or re-marriage such deceased child’s lawful issue should be paid a full one-fourth of the principal from which his wife was receiving the income. His will would clearly have given to his named children and their lawful issue in any and every eventuality the income and the principal of the one-third share set apart for his wife, if the words “death or” had not been omitted in one sub-paragraph of paragraph 5. The Court below held that an intestacy resulted after the wife’s death in one-third of the corpus and income, even though an intestacy could not possibly result as to this principal if a (named) child died before the re-marriage or death of testator’s wife leaving lawful issue, since in that event one-fourth of said principal was, we repeat, expressly payable to the lawful issue of such deceased child. If an intestacy of principal were declared as to testator’s children in event of his wife’s death, but no intestacy of principal as to their issue, the situation which would arise would be both anomalous and absurd. “The pole star in the construction of every will is the testator’s intent: Woelpper’s Appeal, 126 Pa. 562, 17 A. 870; Mulert Estate, 360 Pa. 356, 61 A. 2d 841; Byrne’s Estate, 320 Pa. 513, 181 A. 500. [Britt Estate, 369 Pa. 450, 454, 87 A. 2d 243; O’Reilly Estate, 371 Pa. 349, 352, 89 A. 2d 513; Wright Estate, 380 Pa. 106, 107, 110 A. 2d 198].” The testator’s intention must be ascertained from the language and scheme of his will: “it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words”: Britt Estate, 369 Pa., supra. Furthermore we said in Lifter Estate, 377 Pa. 227, 231, 103 A. 2d 670: “A Court has no power to rewrite a will to supply a testator’s unexpressed intent, or to cover circumstances or conditions or contingencies which he apparently did not foresee or provide for. “Moreover: ‘The Court is always reluctant to supply words of material import to a will: Elkins’ Estate, 339 Pa. 193, 12 A. 2d 83. “. . , interpretation is never to assume the proportions of reformation . . ’ Berger Estate, 360 Pa. 366, 371, 61 A. 2d 855. “ ‘ “Words and phrases may be supplied or rejected when warranted by the immediate context or the general scheme of the will, . . : Bender v. Bender, 226 Pa. 607, 613. See also Jacobs’ Estate, 343 Pa. 387, 392’: Davis’s Estate, 346 Pa. 247, 251, 29 A. 2d 700. “ ‘A word or words may be supplied where there is a clear inference from the whole will that the words were omitted [by mistake]: Hellerman’s Appeal, 115 Pa. 120, 8 A. 768; Jacobs’ Estate, 343 Pa. 387, 22 A. 2d 744; Wittmer’s Estate, 151 Pa. Superior Ct. 274, 30 A. 2d 197; 2 Page on Wills (3rd ed.), page 861’: Riegel v. Oliver, 352 Pa. 244, 247-248, 42 A. 2d 602.” To summarize: Mr. Sowers’ intent is clear in the following particulars: (1) he willed one-third of the net income of his residuary estate to his wife for her life or so long as she remained his widow, and the remaining two-thirds of said residuary net income to his three named children and his adopted daughter in equal shares during their respective life time; (2) as each of his children and his adopted child died, he directed his trustees to pay over to the lawful issue of such deceased child “the full part of the principal fund of which the deceased parent was receiving the income?’, and (3) “and further, in case any child shall die before the death or re-marriage of my . . . wife . . . then upon such death or re-marriage, to pay over to the lawful issue of such deceased child . . . including issue of my adopted child, the full one-fourth part of one-third of said principal fund from which my said beloved wife was receiving the income . . .”. Applying the aforesaid principles to this will, we are confronted with a. narrow and very difficult question: Can we say from the language and scheme of testator’s will that the words “death or” were clearly omitted by mistake in the following sub-paragraph of paragraph 5 of his will, viz: “In trust, in case of the [death or] re-marriage of my said wife, to pay over her said one-third part of such net income unto my children, John E. Sowers, Marmaduke Sowers, Catherine E. Sowers and my adopted daughter, Josephine R. Sowers, in equal shares, share and share alike, during their life time.” To hold otherwise would, we repeat, produce the absurd result that there would be an intestacy as to one-third of the principal so far as his children were concerned but no intestacy of principal if a child died before the death or re-marriage of his wife, in which event the trustees were directed to pay over to the lawful issue of such deceased child “the full one-fourth part of one-third of said principal fund from which my said beloved wife was receiving the income In this dilemma we are convinced that the testator’s intention would best be fulfilled and the interest of Justice best be served by holding that the words “death or” were omitted inadvertently and by mistake in the aforesaid sub-paragraph of his will. Such a construction ties in with and harmonizes all the other paragraphs and provisions of testator’s residuary estate trust both as to income and principal. The Court below correctly refused to allow counsel fees to be paid out of the trust to counsel for the except-ants. No new assets or additional funds were created by the filing of exceptions to the executors’ or trustees’ account. All of the assets of the estate were included in the Fiduciary Account and the only question was whether they should be retained as part of the trust or distributed, and if so, how. It is only in very exceptional cases that an except-ant to the account of an executor, administrator or trustee in tlie Orphan's’ Court will be allowed counsel fees out of the fund. The rule in such eases is that the exceptant must pay his own counsel fee. Where the fund is in the hands of the court and in no jeopardy, except from the possible mistake of the court in dealing with it, and an exceptant is merely protecting his own interest, he will not be allowed counsel fees, although through his efforts others may also be benefited. Harrison’s Estate, 221 Pa. 508, 70 A. 827; Peoples-Pbgh. Tr. Co. v. Pbgh. U. Corp., 334 Pa. 107, 114, 5 A. 890. The Court below likewise correctly decided that upon the death of each of his children and his adopted daughter, Josephine, the principal of the trust fund created for his said grandchildren should be paid to them including the grandchild’s share of the stock of the Sowers Printing Company, which was disposed of in the sixth paragraph of testator’s will. The direction therein as to sale is subordinate to an absolute gift of the principal of the trust. “. . . an absolute gift cannot be limited or fettered by restrictions on sale or alienation.” Stineman v. Stineman, 382 Pa. 153, 157, 114 A. 2d 137. However, appellant is correct in contending that a lower Court is without power to file a revised schedule of distribution after an appeal from the decree of said Court has been taken to an Appellate Court. “Moreover, as we said in Gilbert v. Lebanon Valley Street Ry. Co., 303 Pa. 213: ‘At common law a court of first instance is without jurisdiction to proceed with a cause after the record thereof has been removed to an appellate court. This rule still applies in the absence of a statute providing otherwise.’ Here, there is no such statute. So, also, we said in Ewing v. Thompson, 43 Pa. 372, 376: ‘The effect of that writ [certiorari] was to stay further proceedings in the court below, and to remove the record of the case into this court. That such is the effect of a certiorari, except in cases where the legislature has made a different rule [which here it has not], is the doctrine of all our cases. It is not itself a writ of supersedeas, but it operates as one by implication.’ ” Harwood v. Bruhn et ux., 313 Pa. 337, 341, 170 A. 144. John A. Gernert, Jr. is a son of testator’s deceased daughter, Rebecca, and obviously the grandchild of the testator. He is unprovided for in the will unless he comes in as a member of a class under paragraph 8 of the will. He claims that he is entitled to take as an “other” grandchild, since Josephine R. Sowers died without lawful issue. Paragraph 8 reads: “8 — I order and direct that if any of my said children, including my adopted child, Josephine R. Sowers, should die without lawful issue, the share in the principal of the trust fund hereby created, which is bequeathed to the lawful issue of my said mentioned children, shall in such event be divided equally among my other grandchildren living at such time, share and share alike.” It is not clear what testator meant by the words “among my other grandchildren”, but it is clear that in every paragraph and sub-paragraph of the residuary trust he makes provisions only for his three children, naming them, and his adopted daughter, Josephine, and their respective lawful issue. We believe that the scheme of testator’s entire will plainly shows his intention to exclude John and to give the principal of his estate to the lawful issue of his four named children, and that in paragraph 8 he was following said scheme of distribution and intended the principal share of a child who died without lawful issue to be divided among the other (living) grandchildren of his named children. The decree of the lower Court is reversed and a new schedule of distribution and a decree of the Orphans’ Court shall be entered in accordance with this opinion. Costs shall be paid out of the estate. Italics throughout, ours. We are familiar with authorities which hold that the fact that he had excluded John Gernert in his will would not prevent John from taking in the event of an intestacy. “. . . even though an heir be expressly excluded by a will, he takes, nevertheless, if an intestacy results, since his taking is not by reason of the will but, under the intestacy, by operation of law: Bruckman’s Estate, 195 Pa. 363, 45 A. 1078; Gibbon’s Estate, 317 Pa. 465, 468, 177 A. 50, 51; Habecker’s Estate, (No. 1), 43 Pa. Superior Ct. 86.”: Verner Estate, 358 Pa. 280, 286, 56 A. 2d 667.